Citation Nr: A20011918 Decision Date: 07/16/20 Archive Date: 07/16/20 DOCKET NO. 190708-11106 DATE: July 16, 2020 THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) from June 6, 2017. ORDER Entitlement to a TDIU, from June 6, 2017, is moot. FINDING OF FACT 1. June 6, 2017 is the earliest date that the Veteran filed a claim for entitlement for TDIU or that a claim for TDIU was inferred by the record. 2. In a separate Board decision, the Veteran has been awarded a 100 percent disability rating for systolic heart failure, effective June 6, 2017. CONCLUSION OF LAW The issue of entitlement to a TDIU from June 6, 2017 is moot. 38 U.S.C. § 7105 (2012); Bradley v. Peake, 22 Vet. App. 280 (2008). REASONS AND BASES FOR FINDING AND CONCLUSION On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. In a July 2019 Decision Review Request, the Veteran requested Direct Review by a Veterans Law Judge. This decision has been written consistent with the new AMA framework. The Veteran served on active duty from May 1977 to August 1985. This matter is before the Board of Veterans Appeals (Board) on appeal from a May 2019 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The issue of entitlement to an increased rating for a systolic heart failure is addressed in a separate opinion. Entitlement to a TDIU from June 6, 2017 is moot. For the following reasons, the Board considers the Veteran's TDIU claim after June 6, 2017, to be moot. In some cases, but not all, the assignment of a total schedular rating renders a TDIU claim moot. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008); see also Buie v. Shinseki, 24 Vet. App. 242, 250 (2010). In Bradley, the United States Court of Appeals for Veterans Claims (Court or CAVC) found that a TDIU was warranted in addition to a schedular 100 percent evaluation where the TDIU had been granted for a disability other than the disability for which a 100 percent rating was in effect. Under those circumstances, there was no "duplicate counting of disabilities." Bradley, 22 Vet. App. at 293 (emphasis added); see 38 C.F.R. § 4.14. Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the Court decision in Bradley recognizes that a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation (SMC). SMC pursuant to 38 U.S.C. § 1114 (s), what is referred to as SMC(s) or SMC housebound, may be warranted in addition to his regular compensation if the Veteran has a total disability rating for a single disability, and additional service-connected disability or disabilities rated at 60 percent or more. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i); (emphasis added.) The total rating for the single disability for SMC purposes may be schedular, or may be based on TDIU, so long as TDIU was granted solely because of that single disability. Id. The Veteran is rated with a 100 percent evaluation for his service-connected systolic heart failure, from June 6, 2017 forward. This rating has been assigned in a separate Board decision. He is also service connected for atrial fibrillation with a 10 percent evaluation from January 1998 forward, with the exception of a temporary 100 percent disability rating pursuant to 38 C.F.R. § 4.30 from August 5, 2017 to December 1, 2017, and scars with noncompensable evaluations. The Board finds that there is no claim for SMC(s) housebound, explicit or inferred, in this appeal. There is no further lay or medical evidence the Veteran is housebound in fact. 38 U.S.C. §§ 1114 (s); 38 C.F.R. § 3.350 (i). The Veteran has made no such explicit claim, and the Board finds no evidence in the claims file that infers an SMC(s) housebound claim. Akles v. Derwinski, 1 Vet. App. 118 (1991). The Board thus finds that the Veteran is not qualified for, and nor has he claimed, SMC(s) housebound. If, hypothetically speaking, had the Veteran's total rating been based on a combination of his service-connected disabilities, (which by definition would mean that his individual service-connected disabilities are each rated at less than 100 percent), then TDIU would not be moot if it could be granted on a single disability, in turn making the Veteran eligible for SMC(s). If, however, he has a single disability already rated at 100 percent, as the Veteran does in this case, entitlement to TDIU becomes moot as a matter of law, because he has already met that portion of the requirement for SMC. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008). The Board also notes the Veteran’s attorney’s contentions. Essentially, the Veteran’s attorney has argued that the proper effective date for the grant of a 100 percent disability rating for the Veteran’s systolic heart failure should be June 6, 2017, the date of service connection for the Veteran’s systolic heart failure. See September 2019 Third Party Correspondence. Alternatively, the Veteran’s attorney argues that entitlement to a TDIU is warranted for that period. Id. In a separate Board decision, the Veteran was granted a disability rating of 100 percent for the entire period on appeal for his systolic heard failure. Therefore, the Board finds the issue of a TIDU is also rendered moot based on the arguments put forth by the Veteran’s attorney. See Massie v. Shinseki, 25 Vet. App. 123, 131 (2011) (“[T]he Board... was entitled to assume that the arguments presented by [the appellant] were limited for whatever reason under the advice of counsel and that those were the theories upon which he intended to rely.”), aff’d, 724 F.3d 1325 (Fed. Cir. 2013); Mason v. Shinseki, 25 Vet. App. 83, 95 (2011) (holding that “the Court will not invent an argument for a represented party who had ample opportunity and resources to make that same argument, but, for whatever reason-be it strategy, oversight, or something in between-did not do so”); Robinson v. Peake, 21 Vet. App. 545, 554 (2008) (“The presence of [an] attorney throughout the appeals process before the Agency is a significant factor... [w]e presume that [the] attorney, an experienced attorney in veteran’s law, says what he means and means what he says”), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). (Continued on next page.) Here, to award a separate TDIU rating, in addition to the schedular 100 percent rating based on the Veteran's service-connected systolic heart failure, would result in duplicate counting of disabilities. 38 C.F.R. § 4.14. Specifically, the Board notes that a separate Board decision has awarded the Veteran a 100 percent disability rating for systolic heart failure effective June 6, 2017; hence, the Veteran is in receipt of a 100 percent disability rating for systolic heart failure for the entire period on appeal. As such, entitlement to a TDIU is moot for the period from June 6, 2017. See Bradley v. Peake, 22 Vet. App. 280, 293-4 (2008); Sabonis v. Brown, 6 Vet. App. 426 (1994). Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Geary, Associate 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.