Citation Nr: 1801480	
Decision Date: 01/09/18    Archive Date: 01/19/18

DOCKET NO.  12-41 829A	)	DATE
	)
	)

On appeal from the decision of the 
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE


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


REPRESENTATION

Appellant represented by:	Lisa Chism, Attorney 


ATTORNEY FOR THE BOARD

A. Snoparsky, Associate Counsel\





INTRODUCTION

The Veteran served on active duty in the United States Army from May 1967 to May 1970, including service in the Republic of Vietnam from September 1967 to September 1968.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.  

The claims file is now entirely in VA's secure electronic processing system, Virtual VA and Veterans Benefits Management System (VBMS).


FINDING OF FACT

In a June 2017 decision, the Board granted entitlement to a TDIU, effective December 2, 1998.


CONCLUSION OF LAW

There being no justiciable case or controversy, the Veteran's TDIU claim is dismissed.  38 U.S.C.A. § 7105 (West 2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

When this appeal was previously before the Board in June 2017, as the RO noted in November 2017, the Board made a finding of fact that the evidence was in equipoise as to whether the appellant's service-connected disability rendered him unable to secure and follow a substantially gainful occupation from December 2, 1998.  In addition, the Board concluded that the criteria for a total rating based on individual unemployability due to service-connected disability (TDIU) have been met from December 2, 1998.  As such, the benefit sought on appeal has already been granted and there is no case or controversy before the Board.  See Morris v. Principi, 239 F.3d 1292, 1296 (Fed. Cir. 2001) (refusing to require the Board to explain its reasoning tin the "Reasons and Bases" section of its decision); see also Jennings v. Mansfield, 509 F.3d 1362, 1366 (Fed. Cir. 2007).

Indeed, in Morris, the Federal Circuit explained,

The Board's ruling on Mr. Morris' CUE claim speaks for itself.  The necessary facts are stated, and the basis for the ruling is clear: the 1966 RO decision was subsumed in the 1988 Board Decision, and a CUE challenge to the 1988 Board Decision is precluded by the decision of this court in Smith v. Brown, 35 F.3d 1516 (Fed.Cir.1994).  Although the discussion of the CUE claim does not appear under the FINDINGS OF FACT, CONCLUSIONS OF LAW, or REASONS AND BASES FOR FINDINGS AND CONCLUSIONS sections of the 1996 Board Decision, 38 U.S.C. § 7104(d) and 38 C.F.R. § 19.7(b) place no limitations on where in its opinions the Board must set forth its findings and conclusions and its reasons or bases for those findings and conclusions.  

To date, the RO has not implemented the grant of a TDIU because the Veteran has not completed and filed a VA Form 21-8940.  In doing so, the RO explained in the November 2017 SSOC that VA guidance requires a substantially complete VA Form 21-8940, Veteran's Application for Increased Compensation based on Individual Unemployability, to be completed before implementing a grant of a TDIU because that form "gathers relevant and indispensable information regarding your employment and education histories." 

Thus, there remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed.



ORDER

The appeal is dismissed.





		
	                                                    STEVEN D. REISS 
	Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs