Citation Nr: 20049950 Decision Date: 07/28/20 Archive Date: 07/28/20 DOCKET NO. 15-46 129 DATE: July 28, 2020 ORDER The claim for total disability rating based on individual unemployability (TDIU) as due to service-connected disability is denied. FINDING OF FACT The claim for TDIU is effectively moot because of both a 100 percent rating already in effect for a single service-connected disability, and additional compensation that was awarded at the monthly 38 U.S.C. § 1114(s) rate so as not to render as directly relevant consideration of a TDIU claim for any further Special Monthly Compensation (SMC) status. CONCLUSION OF LAW The criteria for a TDIU are not met as a matter of law. 38 C.F.R. § 4.16 (2019). Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the U.S. Navy from June 1964 to August 1969. The Board’s September 2018 decision/remand, in part, took initial appellate jurisdiction of the TDIU claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009); see also VAOPGCPREC 6-96 (Aug. 16, 1996). The claim was then remanded for the Veteran to complete a formal TDIU claim (VA Form 21-8940), and to reconsider the claim in view of anticipated inextricably intertwined rating decisions on evaluating service-connected disabilities. This case is being reviewed according to the traditional VA appeals process, given further, that was the procedural basis for the earlier Board issuance. There has been no procedural change since. The Veteran did file an August 2019 VA Form 10182 requesting review under the Veterans Appeals Improvement and Modernization Act of 2017 (hereinafter the “Appeals Modernization Act” (AMA)). However, there was no final rating decision at the time, addressing the merits of the TDIU claim. The case proceeds according to the traditional appellate process. The claim for TDIU is denied. Under VA law, total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1) (2019). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability: that is, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. In such an instance, if there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The threshold criteria for consideration of a schedular TDIU is met in this case. Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran’s advancing age. 38 C.F.R. §§ 3.341(a), 4.19 (2019); Van Hoose v. Brown, 4 Vet. App. 361 (1993). “[W]hen the Board conducts a TDIU analysis, it must take into account the individual veteran’s education, training, and work history.” Pederson v. McDonald, 27 Vet. App. 276, 286 (2015). Having reviewed the procedural history of this claim and considering other recent VA Regional Office (RO) rating actions, the Board finds that this matter has become moot in the overall scheme of the compensation claim history. Reviewing the procedural history, significantly, first, there is currently in effect an adjudicated service-connected disability finding for a neurocognitive disorder, rated 100 percent, effective since April 24, 2014. In addition, there is further service-connected disability for that time period independently ratable at 60 percent. Thus, the Veteran is in receipt of housebound benefits at the section 1114(s) rate, so further considering the TDIU claim since April 24, 2014 is a moot point. Thus, the TDIU is moot from April 24, 2014 onwards. Moreover, the TDIU claim cannot be considered any earlier in time from a procedural standpoint. The TDIU claim itself was inextricably intertwined with the implementation of the Board’s September 2018 grant of service connection for neurocognitive disorder and subsequently awarded 100 percent schedular disability rating. That was the determination of the Board, at the time of its September 2018 RO rating decision. It would remain the case here. Thus, no earlier effective date is warranted than April 24, 2014. As a matter of law, because a TDIU claim is moot, this matter on appeal is being denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the claim should be denied because of the lack of entitlement under the law). D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Lyons, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.