Citation Nr: 1801337	
Decision Date: 01/09/18    Archive Date: 01/19/18

DOCKET NO.  15-33 859	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Salt Lake City, Utah


THE ISSUE

Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	Utah Division of Veterans' Affairs


ATTORNEY FOR THE BOARD

P. Olson, Counsel



INTRODUCTION

The Veteran had active military service from July 1957 to May 1961.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2016 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah.  This issue was remanded by the Board in December 2016.  The issue has been returned to the Board.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C. § 7107(a)(2) (West 2012).


FINDING OF FACT

The Veteran has been granted an initial evaluation of 100 percent for asbestosis with pleural plaques the entire period under appeal; and he does not allege, nor does the record show, that his remaining service-connected disabilities (bilateral hearing loss and tinnitus, both rated as 10 percent disabling, render him unemployable.


CONCLUSION OF LAW

The appeal as to the issue of entitlement to TDIU is moot.  38 U.S.C. § 7105 (2012); 38 C.F.R. § 4.16, 20.202 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).  The Board may proceed with the issue on appeal at this time without reviewing the provisions of the Veterans Claims Assistance Act of 2000 (VCAA).  See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. §§ 3.102, 3.159.  The United States Court of Appeals for Veterans Claims (Court) has held that, in a case where the law is dispositive of the claim, the claim should be denied for lack of legal merit under the law.  See Sabonis v. Brown, 6 Vet. App. 426 (1994).  That Court has also held that the VCAA has no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive in the matter.  See Manning v. Principi, 16 Vet. App. 534, 542 (2002).

The Veteran has been granted an initial schedular evaluation of 100 percent for his asbestosis with pleural plaques for the entire period on appeal; and thus, the claim of entitlement to a TDIU has been rendered moot by such award.  See Bradley v. Peake, 22 Vet. App. 280 (2008).

The Court has recognized that a 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled.  Holland v. Brown, 6 Vet. App. 443, 446   (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990).  Thus, if VA has found a Veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis.  See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period). 

However, a grant of a 100 percent disability does not always render the issue of TDIU moot.  VA's duty to maximize a claimant's benefits includes consideration of whether his disabilities establishes entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114.  See Buie v. Shinseki, 24 Vet. App. 242, 250   (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008).  Specifically, SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent.  See Bradley, 22 Vet. App. 280 (analyzing 38 U.S.C.A. § 1114 (s)); see also 75 Fed. Reg. 11,229 -04 (March 10, 2010) (withdrawing VAOPGCPREC 6-1999).

In the case at hand, there is no allegation or evidence that TDIU may be awarded independently of the Veteran's asbestosis with pleural plaques.  The Veteran, in addition to now being service-connected for asbestosis with pleural plaques at a 100 percent evaluation, is also service-connected for bilateral hearing loss, with an evaluation of 10 percent and tinnitus with an evaluation of 10 percent.

The Veteran has not argued, and no evidence indicates, that the service-connected disabilities of bilateral hearing loss and tinnitus have prevented the Veteran from securing or following a substantially gainful occupation within the meaning of 38 C.F.R. § 4.16.  Accordingly, there is no question or controversy for consideration by the Board with regard to entitlement to a TDIU.  Because no allegation of error of fact or law remains for appellate consideration, the Board has no jurisdiction to review the appeal for this issue, and it is dismissed.  See 38 U.S.C. § 7105 (d)(5); 38 C.F.R. § 20.202.


ORDER

The appeal as to the issue of entitlement to a TDIU is dismissed.


____________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs