Case A26040829

Summary

The veteran, who served from May 1997 to May 2002, appeals the effective date for a Total Disability based on Individual Unemployability (TDIU) award and basic eligibility for Dependents' Educational Assistance (DEA). The veteran was service-connected for sleep apnea (50%), a left nasal polyp (30%), and tinnitus (10%), resulting in a combined rating of 70%. The Agency of Original Jurisdiction (AOJ) granted TDIU effective August 24, 2020, but denied an earlier effective date. The veteran sought an effective date of January 31, 2018, arguing that TDIU should have been inferred when he met the schedular requirements. The Board found that while the veteran met the schedular criteria for TDIU on January 31, 2018, he did not have a pending claim or continuous pursuit of a claim for an increased rating at that time. The Board noted the veteran's own acknowledgment that September 17, 2019, might be the appropriate date if an earlier claim couldn't be established. Consequently, the Board granted an effective date of September 17, 2019, for the TDIU award. Based on the TDIU grant, basic eligibility for DEA was also established effective September 17, 2019.

Rationale

Met schedular criteria for TDIU on and after January 31, 2018.; Claim for TDIU not continuously pursued prior to September 17, 2019.; Award of TDIU effective September 17, 2019.

Full Decision Text

Citation Nr: A26040829
Decision Date: 04/30/26	Archive Date: 04/30/26

DOCKET NO. 210420-154057
DATE: April 30, 2026

ORDER

An effective date of September 17, 2019, and no earlier, for the award of a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is granted.

An effective date of September 17, 2019, and no earlier, for the award of basic eligibility to Dependents' Educational Assistance under 38 U.S.C. Chapter 35 is established.

FINDINGS OF FACT

1. From January 31, 2018, to August 23, 2020, service connection was established for sleep apnea rated as 50 percent disabling; a left nasal polyp rated as 30 percent disabling; and tinnitus rated as 10 percent disabling.  The Veteran had a combined 70 percent service-connected rating.

2. The Veteran's September 2020 Application for Increased Compensation Based on Unemployability, VA Form 21-8940, related that he last worked on a full-time basis on February 20, 2014, as a healthcare manager.  The VA Form 21 8940 was received by the Department of Veterans Affairs (VA) on September 17, 2020.

3. Basic eligibility to Dependents' Educational Assistance under 38 U.S.C. Chapter 35 is established as of September 17, 2019.

CONCLUSIONS OF LAW

1. The criteria for an effective date of September 17, 2019, and no earlier, for the award of a TDIU have been met.  38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.340, 3.341, 3.2500, 3.400, 4.16.

2. The criteria for an effective date of September 17, 2019, and no earlier, for basic eligibility to Dependents' Educational Assistance under 38 U.S.C. Chapter 35 are met.  38 U.S.C. § 3501; 38 C.F.R. §§ 3.807, 21.3021.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from May 1997 to May 2002.

The Veteran appeared at a February 2025 virtual hearing before the undersigned Veterans Law Judge.  The hearing transcript is of record.

In December 2020, the Agency of Original Jurisdiction granted a TDIU and effectuated the award as of August 24, 2020.  In December 2020, the Veteran submitted a Decision Review Request: Higher-Level Review, VA Form 20-0996.  In April 2021, the Agency of Original Jurisdiction denied an effective date prior to August 24, 2020, for the award of a TDIU.  In April 2021, the Veteran submitted a Decision Review Request: Board Appeal (Notice of Disagreement), VA Form 10182, and elected the Hearing docket.  Therefore, the Board of Veterans' Appeals (Board) may only consider the evidence of record at the time of the Agency of Original Jurisdiction decision on appeal, as well as any evidence submitted by the Veteran at the hearing or within 90 days following the hearing.  38 C.F.R. §?20.302(a).  If evidence was submitted either (1) during the period after the Agency of Original Jurisdiction issued the decision, which was subsequently subject to higher-level review and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801.  If the Veteran would like 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.  If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered.  38 C.F.R. § 3.2501.  Specific instructions for filing a Supplemental Claim are included with this decision.   

Earlier Effective Date

TDIU

The Veteran asserts that January 31, 2018, is the appropriate effective date for the award of a TDIU.  

For supplemental claims adjudicated pursuant to the Appeals Modernization Act (AMA) and received more than one year after the date on which the Agency of Original Jurisdiction issued a
 may file a Supplemental Claim, VA Form 20-0995, and submit or identify this evidence.  If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered.  38 C.F.R. § 3.2501.  Specific instructions for filing a Supplemental Claim are included with this decision.   

Earlier Effective Date

TDIU

The Veteran asserts that January 31, 2018, is the appropriate effective date for the award of a TDIU.  

For supplemental claims adjudicated pursuant to the Appeals Modernization Act (AMA) and received more than one year after the date on which the Agency of Original Jurisdiction issued a decision, the effective date shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of the supplemental claim.  38 C.F.R. § 3.2500(h)(2).

Unless otherwise specifically provided in Chapter 51 of Title 38 of the United States Code, the effective date of an award based on a claim for increased compensation shall be fixed in accordance with the facts found but shall not be earlier than the date of application therefor.  38 U.S.C. § 5110(a).  An award of increased compensation will be generally effective as of the date of claim or the date entitlement arose, whichever is later.  An increase in disability compensation shall be effective on the earliest date as of which it is factually ascertainable that an increase in disability had occurred if an application is received within one year from that date.  Otherwise, the effective date shall be the date of receipt of the claim.  38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o).

For increased rating claims, including TDIU, 38 U.S.C. § 5110(b)(3) and 38 C.F.R. § 3.400(o)(2) potentially allow for an increase in disability compensation of up to one year prior to the date of claim, if it is factually ascertainable based on all evidence of record that an increase in disability had occurred.  See Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010) (referencing the "one-year look-back period").

If VA receives a complete application form as defined in 38 C.F.R. § 3.160(a) within one year of receipt of an intent to file, VA will consider the complete claim filed as of the date the intent to file was received. 38 C.F.R. § 3.155(b).

A request for a TDIU (whether expressly raised or implied by the record) is not a separate claim for benefits, but rather an attempt to obtain an appropriate rating, either as part of the initial adjudication of a claim or as part of a claim for an increased rating.  Once the issue of entitlement to a TDIU is raised, it is part of the claim for benefits for the underlying disability.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  Once entitlement to a TDIU is at issue as part of a claim for an increased rating, a claimant need not appeal a denial by the Agency of Original Jurisdiction for the issue to remain in appellate status.  Payne v. Wilkie, 31 Vet. App. 373 (2019); Harper v. Wilkie, 30 Vet. App. 356.  

Total ratings for compensation purposes may be assigned where the combined schedular rating for the service-connected disabilities is less than 100 percent when it is found that the service-connected disabilities are sufficient to make the Veteran unemployable without regard to either advancing age or the presence of any nonservice-connected disabilities.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341.

Total disability ratings for compensation purposes may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.  If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16.

From January 31, 2018, to August 23, 2020, service connection was established for sleep apnea rated as 50 percent disabling; a left nasal polyp rated as 30 percent disabling; and tinnitus rated as 10 percent disabling.  The Veteran had a combined 70
 total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.  If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16.

From January 31, 2018, to August 23, 2020, service connection was established for sleep apnea rated as 50 percent disabling; a left nasal polyp rated as 30 percent disabling; and tinnitus rated as 10 percent disabling.  The Veteran had a combined 70 percent service-connected rating.  The Veteran met the schedular criteria for a TDIU on and after January 31, 2018.  38 C.F.R. §4.16(a).  

The Veteran's January 2020 Intent to File a Claim for Compensation and/or Pension, or Survivors Pension and/or DIC, VA Form 21-0966, was received by VA January 30, 2020.  The Veteran's August 2020 Application for Disability Compensation and Related Compensation Benefits, VA Form 21-526EZ, seeking service connection for major depressive disorder and obstructive sleep apnea was received by VA on August 21, 2020.  

The Veteran's September 2020 Application for Increased Compensation Based on Unemployability, VA Form 21-8940, related that he last worked on a full time basis on February 20, 2014, as a healthcare manager.  The VA Form 21 8940 was received by VA on September 17, 2020

In December 2020, the Agency of Original Jurisdiction granted a TDIU and effectuated the award as of August 24, 2020.  The Agency of Original Jurisdiction made a favorable finding that evidence of record established that the service connected sleep apnea and persistent depressive disorder with major depressive episodes rendered the Veteran unemployable.  A favorable finding made by either a VA adjudicator is binding on all subsequent Agency of Original Jurisdiction and Board adjudicators, unless rebutted by evidence that identifies a clear and unmistakable error in the favorable finding.  38 C.F.R. §3.104(c).  

On and after January 31, 2018, the Veteran met the schedular criteria for a TDIU.  The Veteran's September 2020 Application for Increased Compensation Based on Unemployability, VA Form 21-8940, was received by VA on September 17, 2020.  The Veteran reported having last worked on a full-time basis on February 20, 2014, as a healthcare manager.  Therefore, the appropriate effective date for the award of a TDIU is September 17, 2019, a date one year prior to the receipt of the Veteran's September 2020 VA Form 21-8940.  

The Veteran asserts that January 31, 2018, is the appropriate effective date for the award of TDIU.  At the February 2025 Board hearing, the Veteran asserted that "I believe the effective date should coincide with the date that I met the schedular requirements for TDIU, which was January 31, 2018."  In a February 2025 written statement, the Veteran advanced that: "VA should have initiated a TDIU claim based on this inference when I met the scheduler requirements upon service connection for obstructive sleep apnea (OSA);" "[i]t is my position an inference can be established if the veteran meets the requirements for TDIU and evidence of unemployability exists;" "[h]ad I been informed at the time I won my OSA claim for service connection, I would have immediately applied;" "[b]y submitting a new claim for OSA, I propose, I had submitted a claim for increase in my overall disability.  I therefore believe my effective date for TDIU should be January 31, 2018;" and "if we can't find anything that shows that, where I submitted prior to that for an increase, then I think the September 17, 2019, would be the date that I'd be looking for in that case."  While the Board has considered the Veteran's argument that VA should have inferred a claim for TDIU from the record establishing that he was unable to work due to service connected disabilities and met the schedular requirement for TDIU from January 31, 2018, the Board observes that on January 31, 2018, the Veteran did not have a pending claim for an increased rating or TDIU or has maintained continuous pursuit of a prior claim for an increased rating for a service
8;" and "if we can't find anything that shows that, where I submitted prior to that for an increase, then I think the September 17, 2019, would be the date that I'd be looking for in that case."  While the Board has considered the Veteran's argument that VA should have inferred a claim for TDIU from the record establishing that he was unable to work due to service connected disabilities and met the schedular requirement for TDIU from January 31, 2018, the Board observes that on January 31, 2018, the Veteran did not have a pending claim for an increased rating or TDIU or has maintained continuous pursuit of a prior claim for an increased rating for a service-connected disability.  In the absence of such a claim, the appropriate effective date for the award of a TDIU is September 17, 2019.  The Board notes that the Veteran's February 2025 written statement acknowledges such a conclusion.  

Accordingly, the Board concludes that an effective date of September 17, 2019, and no earlier, for the award of a TDIU is warranted.

Basic Eligibility to Dependents' Educational Assistance

Basic eligibility for Dependents' Educational Assistance benefits is predicated on a finding of permanent and total disability.  38 U.S.C. § 3501; 38 C.F.R. §§ 3.807, 21.3021.  The Board has granted an effective date of September 17, 2019, for the

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award of a TDIU.  Therefore, basic eligibility for Dependents' Educational Assistance Benefits is established effective as September 17, 2019.

 

 

J. T. HUTCHESON

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Macek, M.A.

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.