Citation Nr: 18155554 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 18-48 028 DATE: December 4, 2018 ORDER The appeal concerning entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is dismissed. FINDING OF FACT The Veteran is in receipt of a 100 percent schedular disability rating for his service-connected colorectal cancer from May 10, 2016 to April 30, 2017 and a 100 percent schedular disability rating for his service-connected stage IV lung cancer from April 3, 2017; the Veteran has been in receipt of a schedular 100 percent disability rating throughout the duration of the appeal period, as well as an additional award of special monthly compensation (SMC) based upon first his colorectal cancer rated as 100 percent disabling and then his lung cancer rated as 100 percent disability, each with additional service-connected disabilities independently ratable at 60 percent or more; therefore, the claim of entitlement to a TDIU rating has been rendered moot. CONCLUSION OF LAW The claim of entitlement to a TDIU rating is moot. 38 U.S.C. §§ 1155, 5107, 7105; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty in the United States Navy from February 1971 to June 1998. The Veteran’s attorney requested that the Veteran’s appeal be advanced on the docket due to his terminal illness; the Veteran is in receipt of a total disability rating for his service-connected stage IV lung cancer, and recent treatment records associated with the claims file corroborate the seriousness of the Veteran’s illness. The motion to advance the case on the docket is granted and the appeal is advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). The Veteran previously had a number of other issues in appellate status, having submitted a Notice of Disagreement in January 2018 appealing determinations made in a January 2018 rating decision. In June 2018, the Veteran’s attorney submitted a letter indicating that the Veteran wished to withdraw his appeals concerning entitlement to service connection for a left ankle condition, and entitlement to higher disability ratings for diabetes mellitus, right ankle strain, radiculopathy of the left and right lower extremities, and degenerative joint disease of the spine, but wished to continue his appeals concerning entitlement to service connection for colorectal cancer and entitlement to a TDIU. In September 2018, the Board of Veterans’ Appeal (Board) remanded the issues of entitlement to service connection for lung cancer, erectile dysfunction, and colorectal cancer for further development. While these appeals were in post-remand status, the VA Regional Office (RO) issued an October 2018 rating decision granting service connection for all three disabilities, effectively resolving these particular matters. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The RO granted service connection for colorectal cancer with an evaluation of 100 percent effective May 10, 2016 and an evaluation of 30 percent from May 1, 2017; stage IV lung cancer with an evaluation of 100 percent effective April 3, 2017; and erectile dysfunction with a noncompensable evaluation effective April 22, 2017. The RO also awarded special monthly compensation (SMC) based on housebound criteria being met from May 10, 2016. The Veteran’s claim for a TDIU remained in appellate status, and is the only remaining issue for appellate consideration before the Board at this time. The Veteran filed a supplemental claim, received by VA in November 2017, in which he claimed entitlement to a TDIU. The relevant period for consideration thus runs from November 2016 to present. A TDIU may be assigned "where the schedular rating is less than total" and the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). In Bradley v. Peake, 22 Vet. App. 280 (2008), the United States Court of Appeals for Veterans Claims held that receipt of a schedular total rating did not necessarily render a claim for a TDIU moot, because there could be a situation where a veteran had a schedular total rating for a particular service-connected disability and could establish a TDIU rating for another service-connected disability or disabilities as would qualify for special monthly compensation (SMC) at the “housebound” rate under 38 U.S.C. § 1114(s). See 38 U.S.C. § 1114(s); Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010). (Continued on the next page)   In this case, the Veteran is in receipt of schedular 100 percent disability ratings for his service-connected colorectal cancer from May 10, 2016 to April 30, 2017, and for his service-connected stage IV lung cancer from April 3, 2017 to present; he has thus been in receipt of a schedular 100 percent disability rating for a single disability throughout the duration of the appeal. Additionally, he has been awarded SMC benefits at the "housebound" rate throughout the relevant appeal period for the claim for a TDIU. As such, the Veteran has previously been awarded the full benefits sought by the claim for a TDIU for the entirety of the relevant appeal period, and the question of entitlement to a TDIU is moot; the appeal should therefore be dismissed. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Solomon, Counsel