Case A26040353

Summary

The Veteran, who served from November 1966 to September 1970, appeals the effective date for his Total Disability based on Individual Unemployability (TDIU) and Dependents' Educational Assistance (DEA) benefits. The Veteran sought an earlier effective date of December 10, 2015, for both TDIU and DEA, arguing that his service-connected conditions prevented him from working since that date. The Board reviewed the procedural history, noting the claim for TDIU originated in December 2015 and was intertwined with service-connected musculoskeletal conditions affecting his ability to work as a plumber. The Board found the Veteran's statements credible regarding his functional limitations due to his service-connected left shoulder, back, bilateral lower extremity radiculopathy, and right ankle conditions. These conditions prevented him from performing his past work or any labor-related positions, and he lacked training for seated administrative roles. The Board determined his employment after 2014 was marginal, working part-time with friends' assistance, thus qualifying him for TDIU. However, the Board found entitlement to TDIU and DEA prior to December 10, 2015, was not warranted as he only had a 10% rating for audiological conditions and did not allege inability to work due to those issues. Therefore, the Board granted TDIU and DEA effective December 10, 2015.

Rationale

Veteran's service-connected conditions prevent substantially gainful employment; Employment during period on appeal was marginal; Credible testimony regarding functional limitations

Full Decision Text

Citation Nr: A26040353
Decision Date: 04/29/26	Archive Date: 04/29/26

DOCKET NO. 260401-643068
DATE: April 29, 2026

ORDER

Entitlement to an effective date of December 10, 2015, but no earlier, for the grant of entitlement to a total disability rating based on individual unemployability (TDIU) is granted.

Entitlement to an effective date of December 10, 2015, but no earlier, for basic eligibility to Dependents' Educational Assistance (DEA) is granted.

FINDINGS OF FACT

1. From December 10, 2015, it is factually ascertainable that the Veteran was unable to obtain or maintain substantially gainful employment due to his service-connected conditions.

2. Basic eligibility to DEA benefits is based on the date entitlement to TDIU is granted and entitlement to TDIU is now effective from December 10, 2015.

CONCLUSIONS OF LAW

1. The criteria for an effective date of December 10, 2015, but no earlier, for the grant of entitlement to TDIU have been met.  38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400, 4.16.

2. The criteria for an effective date of December 10, 2015, but no earlier, for basic eligibility to DEA have been met.  38 U.S.C. §§ 3501, 5110, 5113; 38 C.F.R. §§ 3.400, 3.807, 21.3020, 21.3021.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from November 1966 to September 1970.  

The rating decision on appeal was issued in September 2025.  The Veteran timely appealed to the Board of Veterans' Appeals (Board) and requested direct review of the evidence considered by the Agency of Original Jurisdiction (AOJ).  See April 2026 VA Form 10182.  The Veteran has waived the docket switch period.  See April 2026 correspondence.  

The Board may only consider the evidence of record at the time of the AOJ decision on appeal.  38 C.F.R. § 20.301.  Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board.  38 C.F.R. §§ 20.300, 20.301, 20.801.  If the Veteran would like the Department of Veterans Affairs (VA) to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence.  38 C.F.R. § 3.2501.  If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered.  Id.  Specific instructions for filing a Supplemental Claim are included with this decision.  

Here, the Veteran is currently awarded TDIU and DEA benefits from January 1, 2023.  The Veteran argues that he should be awarded TDIU and DEA from the original date of claim December 10, 2015.  See April 2026 brief. 

The current appeal stems from appealing a September 2025 rating decision, which was brought pursuant to a VA Form 20-0995 supplemental claim received in July 2025, and regarding a June 2025 rating decision following the April 2025 Board remand.  The April 2025 Board remand indicated that the appeal stemmed from a January 2025 rating decision which effectuated the grant of TDIU and DEA effective January 1, 2023, pursuant to a January 2025 Board decision.  The Board finds there has been substantial compliance with its remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  The January 2025 Board decision stemmed from a June 2018 rating decision, but the decision also indicated that the initial claim for TDIU was received in December 2015 and considered evidence back to that timeframe.  However, the January 2025 Board decision did not specify an effective date.  Therefore, the AOJ chose the date in the January 2025 rating decision based on the date the Veteran was no longer employed.  The January 2025 Board decision stems from an April 2024 supplemental statement of the case (SSOC), which followed an October 2023 Board decision, remanding the issue of TDIU
 West, 11 Vet. App. 268, 271 (1998).  The January 2025 Board decision stemmed from a June 2018 rating decision, but the decision also indicated that the initial claim for TDIU was received in December 2015 and considered evidence back to that timeframe.  However, the January 2025 Board decision did not specify an effective date.  Therefore, the AOJ chose the date in the January 2025 rating decision based on the date the Veteran was no longer employed.  The January 2025 Board decision stems from an April 2024 supplemental statement of the case (SSOC), which followed an October 2023 Board decision, remanding the issue of TDIU, and noting the issues stem from April and October 2016 rating decisions, and that TDIU was intertwined with the service connection issues, including service connection for the various musculoskeletal conditions the Veteran is now service connected for, effective December 10, 2015, the date of claim.  

Based on the above procedural history, the fact that TDIU was raised during the period on appeal and based on the service-connected musculoskeletal conditions, and the Board and AOJ have previously recognized that claim as intertwined with those issues, with the claim dating back to December 2015, the Board finds that the issue of TDIU, and the period on appeal, stems back to the VA Form 21-526EZ claim received on December 10, 2015.  

TDIU

Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. § 3.340.  Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. 

Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. §§ 3.340, 3.341, 4.16(a).  For the stated purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; and (2) disabilities resulting from common etiology or a single accident.  38 C.F.R. § 4.16(a). 

"Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides."  Moore v. Derwinski, 1 Vet. App. 356, 358 (1991).  "Marginal employment shall not be considered substantially gainful employment."  38 C.F.R. § 4.16(a). 

In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19. 

With respect to an earlier effective date, TDIU is a form of increased rating claim, and, therefore, the effective date rules for increased compensation claims apply.  See Norris v. West, 12 Vet. App. 413, 420 (1999); Hurd v. West, 13 Vet. App. 449 (2000).  As a claim for TDIU is a claim for an increased rating, the Board will generally review evidence from that date and during the one year "look back period" preceding the submission of the claim.  See 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(o)(2).

The Veteran meets the schedular criteria for TDIU for the entire period on appeal.  The Veteran was self-employed as a plumber until December 2022, but the amount of hours varied and he stated that he cut back and worked minimal jobs in November 2014 due to his shoulder surgery at the time, and that he worked part-time in his final years with his friend doing most of the physical work.  See June and July 2024 VA Form 21-8940s;
 from that date and during the one year "look back period" preceding the submission of the claim.  See 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(o)(2).

The Veteran meets the schedular criteria for TDIU for the entire period on appeal.  The Veteran was self-employed as a plumber until December 2022, but the amount of hours varied and he stated that he cut back and worked minimal jobs in November 2014 due to his shoulder surgery at the time, and that he worked part-time in his final years with his friend doing most of the physical work.  See June and July 2024 VA Form 21-8940s; May 2025 Veteran statement.  

Based on the evidence of record and the Veteran's various statements and arguments, the Board finds that the Veteran was not gainfully employed during the period on appeal.  The Veteran competently noted that he was unable to properly work since 2014.  The Board finds the Veteran's statements credible.  Although the Veteran continued to work, he chose easier jobs, worked part-time, and did not make nearly as much as he previously did.  The Veteran also relied on his friends to help complete work.  As such, being self-employed and working with friends, the Veteran worked in a protected environment.  Given the fluctuation in how much work the Veteran could complete, and given the fact that the Veteran was making close to the poverty threshold level, the Board finds the Veteran's employment during the period on appeal is marginal at best.  

The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner.  See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013).  A medical examiner's role is limited to describing the effects of disability upon the person's ordinary activity.  See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013).  The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).

Here, the Veteran is service connected for a left shoulder, back, bilateral lower extremity radiculopathy, and right ankle condition for the entire period on appeal.  These various conditions impact the Veteran's ability to do physical labor with standing, squatting, bending, lifting, and working in tight spaces, as required for work as a plumber.  As such, the Veteran is unable to work in his past employment or any labor related position.  The Veteran also does not have training, education, or experience to work in a seated administrative or computer related position.  The Veteran only has a high school education and worked only as a plumber.  See June 2024 VA Form 21-8940.  Therefore, the Board finds the Veteran credible as to his functional limitations attributable to his service-connected musculoskeletal conditions.  This is demonstrated throughout the period on appeal.  Therefore, the Veteran is entitled to TDIU from December 10, 2015.

However, an effective date earlier than December 10, 2015, is not warranted.  The Veteran does not meet the schedular criteria for TDIU prior to December 10, 2015.  Prior to December 10, 2015, the Veteran is only service connected for tinnitus and bilateral hearing loss, with a combined 10 percent rating.  The evidence does not demonstrate, and the Veteran does not allege, that he was unable to worked due to his service-connected audiological issues.  As noted above, the Veteran and his representative only seek an effective date of December 10, 2015.  

DEA

DEA benefits are payable to the child, spouse, or surviving spouse of a veteran if the following conditions are met: (1) the veteran was discharged from service under conditions other than dishonorable, or died in service; and (2) the veteran has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the Veteran's death; or (4) the Veteran died as a result of a service-connected disability.  38 U.S.C. § 3510; 38 C.F.R. § 3.807(a).

P&T means permanent and total "disability," permanently and totally "disabled," or permanent and total "rating," when any of these terms are used in reference to a veteran with a service-connected disability rating determined by VA to be total for the purposes of VA disability compensation where the impairment is reasonably certain to
 conditions other than dishonorable, or died in service; and (2) the veteran has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the Veteran's death; or (4) the Veteran died as a result of a service-connected disability.  38 U.S.C. § 3510; 38 C.F.R. § 3.807(a).

P&T means permanent and total "disability," permanently and totally "disabled," or permanent and total "rating," when any of these terms are used in reference to a veteran with a service-connected disability rating determined by VA to be total for the purposes of VA disability compensation where the impairment is reasonably certain to continue throughout the life of the disabled veteran.  38 C.F.R. § 21.3021(p).  The term "effective date of the P&T rating" means the date from which VA considers that the veteran's P&T disability commenced for purposes of VA benefits, as determined by the initial rating decision.  38 C.F.R. § 21.3021(q), (r).

The AOJ initially awarded basic eligibility for DEA benefits based on the date of the original grant of entitlement to TDIU, as the Veteran has a total service-connected disability that is permanent in nature.  See January 2025 rating decision.

Given the grant of an earlier effective date for entitlement to TDIU pursuant to this decision, the Board finds that entitlement to DEA benefits for that same period from December 10, 2015, is warranted.  Prior to December 10, 2015, the Veteran is not awarded TDIU and does not have a total service-connected disability.  Therefore, December 10, 2015, is the earliest date for which such entitlement is warranted.  

Accordingly, entitlement to an effective date of December 10, 2015, but no earlier, for DEA benefits is granted.

 

DONNIE R. HACHEY

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Zheng, Andrew

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.