Citation Nr: 1805064 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 03-25 163 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Veteran represented by: Jeany Mark, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Bilstein, Associate Counsel INTRODUCTION The Veteran had active military service from December 1958 to May 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2003, the Veteran testified at a hearing before a Decision Review Officer (DRO) at the RO. In July 2005, the Veteran also testified at a hearing before a Veterans Law Judge in Washington, D.C. Transcripts of both hearings are associated with the record. In September 2005, the Board remanded the case to the RO for further evidentiary development. In an April 2008 decision, the Board denied the Veteran's TDIU claim on a schedular basis. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In June 2009, the parties submitted a joint motion to vacate the Board decision and to remand for readjudication. By a June 2009 Order, the Court granted the motion. In February 2010, the Board remanded the case to the RO for further evidentiary development. In a September 2011 decision, the Board again denied the Veteran's claim of entitlement to a schedular TDIU. The Veteran again appealed the Board's decision to the Court. In March 2013, the Court issued a memorandum decision which vacated the Board's September 2011 decision and remanded the matter to the Board for further action. In April 2014, the Board again remanded the TDIU claim for additional development. In correspondence dated in April 2016, the Veteran was informed that the Veterans Law Judge who conducted the July 2005 hearing was no longer employed by the Board. The letter also informed the Veteran of his option for another Board hearing. He also was told that if he did not respond to the letter within 30 days, the Board would assume that he did not want another hearing. The Veteran has not responded to the letter. The Board will accordingly proceed with adjudication of the appeal. In June 2016, the Board denied the Veteran's claim of entitlement to schedular TDIU as a matter of law and referred the claim for extraschedular consideration. The Veteran again appealed the Board's decision to the Court. In September 2017, the parties submitted a joint motion to vacate the Board decision and to remand the matter for further action. That same month, the Court granted the order. In August 2017, the Board granted the Veteran's claim of entitlement to TDIU on an extraschedular basis. The Board notes that an April 2014 rating decision granted entitlement to service connection for degenerative disc disease of the lumbar spine and assigned a 20 percent evaluation effective March 13, 2001. In February 2015, the Veteran filed a notice of disagreement (NOD) with the initial evaluation, and in March 2016, the RO issued a statement of the case (SOC). The Veteran then submitted a VA Form 9 in March 2017. In a December 2017 letter, the RO notified the Veteran that his VA Form 9 was untimely. In January 2018, the Veteran filed an NOD with the December 2017 letter. As the claim is in review status, no further action on the part of the Board is warranted at this juncture. The Board also notes that in a July 2015 rating decision, the RO denied the Veteran's claim for special monthly compensation based on aid and attendance/household status. The Veteran filed an NOD in July 2016. When there has been an adjudication of a claim and an NOD as to its denial, the RO will reexamine the claim and determine whether additional review or development is warranted. See 38 C.F.R. § 19.26 (2017). Upon completion of such action, if the benefit sought on appeal is not granted in full the claimant is entitled to an SOC. See 38 C.F.R. § 19.29. Here, the record reflects that the RO issued an SSOC in October 2017. As the Veteran has not perfected his appeal, this claim is not before the Board. 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 There is currently no justiciable case or controversy for active consideration by the Board on the issue of entitlement to a TDIU as that matter was granted in an August 2017 Board decision. CONCLUSION OF LAW As the benefit sought on appeal has been granted, there remains no case or controversy as to the issue of entitlement to a TDIU. 38 U.S.C. § 7105 (d)(5) (2012); 38 C.F.R. § 20.101 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION It is a well-established judicial precedent that when there is no case or controversy, or when a once live case or controversy becomes moot, the Court lacks jurisdiction. See Bond v. Derwinski, 2 Vet. App. 376, 377 (1992). In August 2017, the Board granted entitlement to TDIU on an extraschedular basis, effective March 13, 2001, the date of the application. While VA has a duty to maximize a claimant's benefits, the Veteran is already in receipt of the maximum benefits available for the period since March 13, 2001, as extraschedular TDIU is not a lesser benefit than schedular TDIU. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). As this represents a total grant of benefits sought on appeal, the issue of entitlement to a schedular TDIU is moot and no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). In light of the above, there is no case or controversy currently before the Board as the claim of entitlement to a TDIU has been resolved entirely in the Veteran's favor. Consequently, the appeal with respect to this issue must be dismissed. ORDER The appeal as to the issue of entitlement to a schedular TDIU is dismissed. ____________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs