Citation Nr: 1313159 Decision Date: 04/19/13 Archive Date: 05/02/13 DOCKET NO. 05-05 086 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to a total rating based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Veteran represented by: Matthew D. Hill, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran served on active duty from February 1969 to October 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2003 rating decision of the Los Angeles, California, regional office (RO) of the Department of Veterans Affairs (VA). The procedural history is relevant to the outcome of this appeal and is discussed at length below. The Board has reviewed the Veteran's electronic record (Virtual VA) prior to rendering a decision in this case. It does not contain any evidence not already in the claims folder or considered by the RO. The issue of entitlement to special monthly compensation has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran is in receipt of a 100 percent schedular evaluation for coronary artery disease effective from the September 6, 2002 date of the original claim. 2. The Veteran is also in receipt of a separate 50 percent evaluation for post-traumatic stress disorder (PTSD) and a 10 percent evaluation for tinnitus; these combine to 60 percent exclusive of the 100 percent evaluation for coronary artery disease. 3. As the Veteran is already eligible for special monthly compensation, award of TDIU can result in no further benefit, and there remains no case or controversy concerning whether the Veteran is entitled to any benefits that may be inferred from his claim. CONCLUSION OF LAW There is no question of law or fact involving the claim of entitlement to special monthly compensation based on award of TDIU; the appeal is moot. 38 U.S.C.A. § 7105(d)(5) (West 2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Board finds that the duty to notify and duty to assist the Veteran have both been met. Moreover, given that level of benefits to which he is now entitled, any failure in the duty to notify or duty to assist did not result in any harm to the Veteran's appeal and the Board can proceed with consideration of the appeal. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). TDIU Background The Veteran submitted a claim for service connection for PTSD and tinnitus on September 6, 2002. He also asked for an increased evaluation for his hearing loss of the left ear. A June 2003 rating decision granted service connection for PTSD and assigned a 30 percent evaluation effective from the September 6, 2002, date of the claim. This rating decision also granted service connection for tinnitus and assigned a 10 percent evaluation effective from the September 6, 2002, date of the claim. Service connection for hearing loss of the right ear was granted, but the evaluation for his now bilateral hearing loss remained at zero percent. The Veteran submitted a notice of disagreement with the 30 percent evaluation for his PTSD, and the current appeal ensued. The Veteran submitted a claim for service connection for coronary artery disease in June 2004. This claim was denied in a February 2005 rating decision. The appeal was originally before the Board in April 2009. At that time, the Board granted service connection for coronary artery disease. The claim for an increased evaluation for PTSD was remanded for further development. A May 2009 rating decision effectuated the decision of the Board by assigning a 10 percent evaluation for coronary artery disease, effective from June 2004. In June 2010, a rating decision increased the evaluation for the Veteran's coronary artery disease to 100 percent, effective from June 2004. The Veteran's appeal for an increased evaluation for PTSD was returned to the Board in November 2010. The Board found that an initial 50 percent evaluation for the Veteran's PTSD was warranted. Entitlement to an evaluation in excess of 50 percent was denied. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In July 2011, a rating decision made the 100 percent evaluation for coronary artery disease effective from the Veteran's original September 6, 2002 claim. In May 2012, the Court issued a memorandum decision upholding the Board's decision to award the Veteran an initial 50 percent evaluation, but no more, for his service connected PTSD. The Court, however, also determined that the issue of entitlement to TDIU was also raised by the record. This issue was remanded for consideration by the Board. The Court also noted that a review of the record showed that service connection had been granted for coronary artery disease, but did not note the evaluation for that disability. The appeal has now been returned to the Board for consideration of TDIU, as ordered by the Court. Discussion Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2012). In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The law provides that a total disability rating 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, if there is only one such disability, this disability shall be ratable at 60 percent or more, or 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. See 38 C.F.R. § 4.16(a) (2012). At this point regarding the TDIU claim, the Board notes that on June 7, 1999, VA's General Counsel issued VA O.G.C. Prec. Op. No. 6-99 addressing questions of whether a claim for a TDIU may be considered when a schedular 100 percent rating is already in effect for one or more service-connected disabilities. Essentially, that OGC precedent opinion held that receipt of a 100 percent schedular rating for a service-connected disability rendered moot any pending claim for a TDIU, requiring dismissal of the TDIU claim. See also Green v. West, 11 Vet. App. 472, 476 (1998); Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994); and Smith v. Brown, 10 Vet. App. 330, 333-34 (1997) (dismissal is the proper remedy to employ when an appeal has become moot). But in view of the Court's decision in Bradley v. Peake, 22 Vet. App. 280 (2008), which took a position contrary to the one reached in the OGC precedent opinion, the General Counsel took action to withdraw that prior opinion. Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the Court's decision in Bradley recognizes that a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation (SMC), which is contrary to the holdings in VA O.G.C. Prec. Op. No. 6-99. VA has a "well-established" duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008). This duty to maximize benefits requires VA to assess all of a claimant's disabilities to determine whether any combination of disabilities establishes entitlement to SMC under 38 U.S.C.A § 1114. See Bradley, 22 Vet. App. 280, 294 (2008) (finding that SMC "benefits are to be accorded when a Veteran becomes eligible without need for a separate claim"). Indeed, as noted in Bradley, VA must consider a TDIU claim despite the existence of a schedular total rating and award SMC under 38 U.S.C.A. § 1114(s) if VA finds the separate disability supports a TDIU independent of the other 100 percent disability rating. See Bradley, 22 Vet. App. 280, 294 (2008); see also DVA Sum. Op. Gen. Counsel Prec., 75 Fed. Reg. 11229 -04 (March 10, 2010) (withdrawing VAOPGCPREC 6-99, 64 Fed. Reg. 52375 (1999) (the logic of Bradley suggests that, if a Veteran has a schedular total rating for a particular service-connected disability and subsequently claims TDIU for a separate disability, VA must consider the TDIU claim despite the existence of the schedular total rating and award SMC under section 1114(s) if VA finds the separate disability(ies) support a TDIU independent of the other 100 percent disability rating). SMC is payable at the housebound rate where the Veteran has a single service-connected disability rated as 100-percent disabling and, in addition, (1) has a service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability, and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i). Subsection 1114(s) requires that a disabled Veteran whose disability level is determined by the ratings schedule must have at least one disability that is rated at 100 percent in order to qualify for the SMC provided by that statute. The Court declared, however, if a Veteran were awarded a TDIU based on multiple underlying disabilities and then later receives a schedular disability rating for a single, separate disability that would, by itself, create the basis for an award of a TDIU, that the order of the awards was not relevant to the inquiry as to whether any of the disabilities alone would render him unemployable and thus entitled to a TDIU based on that condition alone. Buie v. Shinseki, 24 Vet. App. 242, 250 (2010). In this case, the Veteran has a 100 percent evaluation for coronary artery disease that is effective from the September 6, 2002 date of the original claim. Furthermore, the Veteran also has a 50 percent evaluation for PTSD and a 10 percent evaluation for tinnitus, which are also effective from the September 6, 2002 date of the original claim. The 50 percent evaluation for PTSD and the 10 percent evaluation for tinnitus combine to 60 percent. 38 C.F.R. § 4.25. Thus, the Veteran is already entitled to SMC. 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i). It follows that as the reasoning of Bradley is that TDIU must still be considered even if a veteran has already been awarded a separate 100 percent evaluation for a disability in order to potentially make the veteran eligible for SMC, and as the Veteran in this appeal is already eligible for SMC based on the 100 percent evaluation for coronary artery disease and separate 60 percent evaluation for his remaining service connected disabilities, than consideration of TDIU no longer serves any useful purpose. As there remains no case or controversy concerning whether the Veteran is entitled to the benefit sought, the appeal with respect to the inferred claim for TDIU is moot and must be dismissed. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER The appeal for entitlement to a total rating based on individual unemployability due to service connected disabilities is dismissed. ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs