Citation Nr: 18158477 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 17-10 149 DATE: December 18, 2018 ORDER Entitlement to a total disability evaluation based on individual unemployability (TDIU) is moot, and thus is dismissed. FINDING OF FACT The Veteran has been rated at a 100 percent disability rating since being granted service connection. CONCLUSION OF LAW Entitlement to a TDIU is moot. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Air Force from September 7, 1989 to July 31, 1992. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a May 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. The Board also notes that the Veteran is claiming one additional issue that has not yet been certified to the Board, and will not, therefore, be addressed at this time. Entitlement to a TDIU is moot, and thus is dismissed. The Veteran claims entitlement to TDIU due to his service-connected bipolar disorder. See VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. A TDIU may be granted where a Veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or higher, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or higher, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or higher. In determining whether a TDIU is warranted, consideration may be given to a Veteran’s level of education, special training, and previous work experience, but not to his age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The determination of whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities is a factual determination rather than a medical question. Therefore, responsibility for the ultimate determination of whether a Veteran is capable of securing or following substantially gainful employment is placed on the VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); see also 38 C.F.R. § 4.16; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). In this case, the applicable period for consideration is from November 28, 2014, the effective date for the award of service connection for bipolar disorder, to the present. See 38 C.F.R. § 3.400. The Veteran was awarded a 100 percent disability rating for his bipolar disorder concurrent with his grant of service connection. See May 2017 Rating Decision. Because a 100 percent schedular rating for bipolar disorder is granted for the entire period on appeal, there remains no rating period where the schedular rating is “less than total,” as required for a TDIU. See 38 C.F.R. § 4.16 (a). For this reason, the issue of entitlement to a TDIU at any time during the TDIU rating period is now rendered moot, leaving no question of law or fact to decide regarding the TDIU issue. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 4.14, 4.16. The contention during the course of this appeal was that the Veteran’s service-connected bipolar disorder rendered him unemployable, and the 100 percent schedular rating throughout the rating period specifically contemplates total unemployability (i.e., total occupational impairment) due to bipolar disorder. In consideration thereof, the Board finds that the issue of entitlement to a TDIU must be dismissed as moot. The Board notes, however, that 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 disabilities establish entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114; Buie v. Shinseki, 24 Vet. App. 242 (2011). 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. Bradley v. Peake, 22 Vet. App. 280 (2008). (Continued on the next page)   Such a scenario is not present here. To obtain SMC for the period on appeal, the evidence of record would have to establish that the Veteran had remaining service-connected disabilities which entitled him to a TDIU. In contrast, here the Veteran has no remaining service-connected disabilities. Accordingly, the issue of entitlement to a TDIU is moot and the Veteran’s claim is dismissed. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K.Smith, Law Clerk