Citation Nr: 21062029
Decision Date: 10/06/21	Archive Date: 10/06/21

DOCKET NO. 17-45 981
DATE: October 6, 2021

ORDER

Entitlement to total disability based on individual unemployability (TDIU) having been rendered moot, is dismissed.

FINDING OF FACT

For the entirety of the appeal period, the Veteran is in receipt of a 100 percent disability rating and Special Monthly Compensation (SMC) based on housebound, which renders the issue of entitlement to a TDIU moot.

CONCLUSION OF LAW

The claim for a TDIU is dismissed as moot. 38 U.S.C. § 7105; Bradley v. Peake, 22 Vet. App. 280 (2008).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served in the United States Air Force from October 1968 to October 1972.

These matters come before the Board of Veterans' Appeals (Board) on appeal of a June 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).

This matter was previously before the Board in March 2019 and November 2019, and the Board remanded the claim both times.

During the pendency of the appeal, the Veteran was granted service connection for gout, posttraumatic stress disorder, chronic obstructive pulmonary disease with chronic bronchitis, erectile dysfunction, residuals of left modified radical mastectomy, and left breast scar in a June 2021 rating decision. Because these grants represent a full grant of the benefits sought, these issues are no longer on appeal. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997).

TDIU

In a June 2021 rating decision, the Veteran was granted a 100 percent rating for his now service-connected chronic obstructive pulmonary disorder, effective September 8, 2014, which is the entirety of the appeal period. The Veteran was also granted special monthly compensation based on loss of a creative organ and special monthly compensation based on housebound related to the Veteran's chronic obstructive pulmonary disease (COPD) and his coronary artery disease, which is separately rated at 60 percent.

The Board notes that in Herlihy v. Principi, 15 Vet. App. 33, 35 (2001), the Court of Appeals for Veterans Claims (Court) held that the grant of a schedular 100 percent disability evaluation moots the issue of any entitlement to TDIU after the effective date of that rating. VA has a duty to maximize a claimant's benefits. See Bule v. Shinseki, 24 Vet. App. 242, 250 (2011); see also Bradley v. Peake, 22 Vet. App. 280, 294 (2008). This duty to maximize benefits requires VA to assess all of a claimant's disabilities to determine whether any combination of disabilities establishes entitlement to SMC under 38 U.S.C. § 1114.  See Bradley, 22 Vet. App. 280 (finding that SMC "benefits are to be accorded when a Veteran became eligible without need for a separate claim").

As noted above, the Veteran was awarded a 100 percent rating for his COPD and was granted entitlement to SMC at the housebound rate due to his COPD and his coronary artery disease, which is independently rated at 60 percent throughout the appeal period. Both the 100 percent rating and the SMC award are effective from September 8, 2014, the date the Veteran's claim was received by VA, and run for the entirety of the appeal period. 

Therefore, in the current appeal, the claim for TDIU is dismissed as moot for the entirety of the appeal period. See Bradley, 22 Vet. App. at 294. 

 

Caroline B. Fleming

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Gabrielle Ongies, 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.