Citation Nr: 21062082 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 17-45 042 DATE: October 6, 2021 ORDER The question of entitlement to a combined disability rating (or evaluation) in excess of 90 percent, for the rating period from December 7, 2011, is dismissed. FINDINGS OF FACT 1. In a December 2020 rating decision, the Veteran was awarded service connection for an acquired psychiatric disability, rated as 50 percent disabling, from October 22, 2020. 2. In an April 2021 rating decision, an earlier effective date of December 23, 2009 was granted for service connection for an acquired psychiatric disability; a 50 percent disability rating was assigned from the period from December 23, 2009 to October 22, 2020, and a 70 percent disability rating was assigned from October 22, 2020. 3. The grant of service connection for an acquired psychiatric disability resulted in a 100 percent combined schedular disability rating, the maximum combined schedular disability rating, being awarded from December 7, 2011, leaving no question of law or fact for the Board to decide on the question of entitlement to a combined disability rating in excess of 90 percent for the rating period from December 7, 2011. CONCLUSION OF LAW As the Veteran has been in receipt of a 100 percent (total) combined disability rating since December 7, 2011, there is no question of law or fact for the Board to decide on the question of entitlement to a combined disability rating in excess of 90 percent for the rating period from December 7, 2011. 38 U.S.C. §§ 7104(a), 7105. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the appellant, had active service from July 1981 to September 1992, from November 1996 to July 1997, and from February 2003 to December 2009. This matter came before the Board of Veterans' Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In April 2016, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ) who is no longer employed by the Board. The hearing transcript is of record. In May 2019, the Veteran was offered an opportunity for a new hearing before a different VLJ, but declined to appear for a new Board hearing. By way of history, in a July 2016 decision, the Board, in pertinent part, granted service connection for obstructive sleep apnea, and remanded the issues of service connection for an acquired psychiatric disability and entitlement to a total disability rating for compensation purposes based on individual unemployability due to service connected disabilities (TDIU). In an October 2016 rating decision, the Agency of Original Jurisdiction (AOJ) effectuated the Board grant of service connection for obstructive sleep apnea, and assigned an initial 50 percent disability rating, effective December 7, 2011. This resulted in a combined schedular disability rating of 90 percent from December 7, 2011. The Veteran subsequently submitted a notice of disagreement (NOD) in December 2016, which argued that the combined rating should have been 100 percent from at least January 2012. A statement of the case (SOC) was issued on the question of a combined disability rating in excess of 90 percent in August 2017, and the Veteran perfected the appeal, via VA Form 9, in August 2017. Upon the instant matter being returned to the Board, in a March 2019 decision, the Board, in pertinent part, remanded the issues of service connection for an acquired psychiatric disability, entitlement to a TDIU, and entitlement to a combined disability rating in excess of 90 percent. Again, as the issue of entitlement to a combined disability rating in excess of 90 percent stems from the grant of service connection for obstructive sleep apnea, with an initial disability rating of 50 percent, effective December 7, 2011, the Board should have styled the issue as entitlement to a combined disability rating in excess of 90 percent from December 7, 2011. The aforementioned issues were subsequently returned to the Board. In a March 2020 Remand, the Board remanded the issues of service connection for an acquired psychiatric disability and entitlement to a TDIU for additional development. At that time, as the Board did not address the issue of entitlement to a combined disability rating in excess of 90 percent from December 7, 2011, the issue remained pending before the Board. While on remand, in December 2020 and April 2021 rating decisions, the AOJ granted service connection for an acquired psychiatric disability and a TDIU. The TDIU was granted for the entire rating period on appeal, from December 23, 2009. Further, special monthly compensation (SMC) at the schedular housebound rate was granted from December 23, 2009. As such, the issues of service connection for an acquired psychiatric disability and entitlement to a TDIU are no longer before the Board, as the issues have been granted in full; therefore, the only issue remaining before the Board is the question of entitlement to a combined disability rating in excess of 90 percent from December 7, 2011, which has remained pending before the Board since the issuance of the March 2020 Remand. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). As the instant decision dismisses, as a matter of law, the issue of entitlement to a combined disability rating in excess of 90 percent from December 7, 2011, no further discussion of VA's duties to notify and assist is necessary. Entitlement to a Combined Disability Rating in Excess of 90 Percent from December 7, 2011 is Dismissed. The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. As touched upon in the introduction, in a December 2020 RO rating decision, the Veteran was awarded service connection for an acquired psychiatric disability, rated as 50 percent disabling, from October 22, 2020. Subsequently, an earlier effective date of December 23, 2009 was granted for service connection for an acquired psychiatric disability in an April 2021 rating decision. Per the rating decision, a 50 percent disability rating was assigned from December 23, 2009 to October 22, 2020, and a 70 percent disability rating was assigned from October 22, 2020. (Continued on the next page) The grant of service connection for an acquired psychiatric disability resulted in a 100 percent combined schedular disability rating, the maximum combined schedular disability rating, from December 7, 2011. See 38 U.S.C. § 1155; 38 C.F.R. § 4.25. As such, the grant of a total 100 percent combined schedular disability rating left no question of law or fact for the Board to decide on the question of entitlement to a combined disability rating in excess of 90 percent for the rating period from December 7, 2011. The grant of the maximum combined schedular disability rating moots the question of entitlement to a higher combined rating in excess of 90 percent, as no higher disability rating can be awarded by the Board at this time. As the AOJ's action constitutes a complete grant as to the question of entitlement to a combined disability rating in excess of 90 percent for the rating period from December 7, 2011, there remains no question of law or fact for the Board to decide regarding the issue of entitlement to a combined disability rating in excess of 90 percent for the rating period from December 7, 2011; therefore, the appeal for a combined disability rating in excess of 90 percent for the rating period from December 7, 2011 must be dismissed. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Blowers, 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.