Citation Nr: 1754344 Decision Date: 11/28/17 Archive Date: 12/07/17 DOCKET NO. 07-11 909 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to a total rating based on individual unemployability due to service connected disabilities (TDIU) other than a service connected tumor. REPRESENTATION Veteran represented by: Arkansas Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD N.K., Associate Counsel INTRODUCTION The Veteran served on active duty from December 1982 to October 1987. This matter originally came to the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In February 2014, the Veteran and his spouse testified at a Board hearing at the RO before a VLJ with respect to the issues of entitlement to service connection for a cervical spine disability, entitlement to an increased rating for a right ankle disability, and entitlement to TDIU. The Board remanded the issue of TDIU in August 2014. The August 2014 remand was signed by a panel of three VLJs, as it appeared that the Veteran had testified before two different VLJs with respect to issues previously on appeal. However, the Board finds that both VLJs did not hear testimony on the issue of TDIU, only the undersigned VLJ heard such testimony. Therefore, the issue of TDIU currently on appeal is not subject to review by a panel. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT As the Veteran was awarded special monthly compensation (SMC) at the housebound rate in an April 2017 rating decision, an 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 award of entitlement to special monthly compensation based on award of TDIU; the appeal is dismissed. 38 U.S.C. § 7105(d)(5) (2012); 38 C.F.R. § 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91. In June 1999, VA's General Counsel (OGC) issued VAOPGCPREC 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). In Bradley v. Peake, 22 Vet. App. 280 (2008), the Court held that although no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of TDIU predicated on a single disability may form the basis for an award of special monthly compensation (SMC). See Bradley v. Peake, 22 Vet. App. 280 (2008) (holding that there could be a situation where a veteran has a schedular total rating for a particular service-connected disability, and could establish a TDIU rating for another service-connected disability in order to qualify for SMC under 38 U.S.C. § 1114(s) by having an "additional" disability of 60 percent or more ("housebound" rate)). Thus, in November 2009, VA General Counsel partially withdrew VAOPGCPREC 6-99 to the extent it was inconsistent with Bradley, recognizing that it was possible for a veteran first to be awarded TDIU based on a single disability and subsequently receive schedular disability ratings for other conditions that would not duplicate in the count of disabilities for SMC purposes (that is, separate disabilities that could combine for a 60 percent disability rating). 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). 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. at 294 (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 id. 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. § 1114(s); 38 C.F.R. § 3.350(i). 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 under 38 U.S.C. § 1114(s). If, however, 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, 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 schedular evaluation for a brain tumor. Further, the Veteran is also service connected for degenerative arthritis of the cervical spine rated at 30 percent, residuals of a fracture of the ankle with traumatic arthritis as 20 percent disabling, residuals of a fracture of the foot with traumatic arthritis as 20 percent disabling, a surgical scar of the right foot rated as non compensable and a forehead scar also rated as non compensable. These evaluations combine to 60 percent during the rating period on appeal. 38 C.F.R. § 4.25 (2017). Thus, the Veteran is already entitled to SMC. Indeed, in an April 2017 rating decision, the RO granted SMC based on these criteria. 38 U.S.C. § 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 the Veteran has already been awarded SMC based on the 100 percent evaluation for a brain tumor and separate evaluations combined to 60 percent for his remaining service connected disabilities, then 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 claim for TDIU is dismissed. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER The appeal for TDIU is dismissed. ____________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs