Citation Nr: 21063445 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 08-35 518 DATE: October 14, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from November 1, 2014 to March 2, 2016, having been rendered moot, is dismissed. FINDING OF FACT Entitlement to a TDIU from November 1, 2014 to March 2, 2016 is moot. CONCLUSION OF LAW The claim for a TDIU from November 1, 2014 to March 2, 2016 is dismissed as moot. 38 U.S.C. §§ 1114, 7105; 38 C.F.R. § 20.202. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1966 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this case in August 2020 for further development. The Board is satisfied that there was substantial compliance with the prior remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). In a June 2021 rating decision, the Veteran was granted service connection for a left knee disability, a right knee disability, and a lumbar spine disability. As these issues have been resolved by a full grant of benefits, they are no longer in appellate status. AB v. Brown, 6 Vet. App. 35 (1993). Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. In the August 2020 Board remand, the Board directed the RO to request from the Veteran information regarding his employment history from November 1, 2014 to March 2, 2016. In order to effectuate that request, the RO sent the Veteran an October 2020 development letter requesting that he provide information regarding his employment history from November 1, 2014 to March 2, 2016 and notifying him that the evidence or information should be sent as soon as possible as VA could make a decision on the Veteran's claim after 30 days. The Veteran did not respond to this development letter. Given the decision by the Veteran not to participate in any further development of his claim, the Board recognizes that the duty to assist is a two-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Here, the Board finds that, as the Veteran has rejected VA's attempts to generate the necessary information to assist with substantiating his claim, there is no duty to seek further development. 1. Entitlement to a TDIU from November 1, 2014 to March 2, 2016, having been rendered moot, is dismissed. The claim of entitlement to a TDIU from November 1, 2014 to March 2, 2016 has been rendered moot. The Board notes that as of the June 2021 rating decision, the Veteran is in receipt of a 100 percent disability rating for left total knee arthroplasty and special monthly compensation (SMC) and SMC at the housebound rate from January 14, 2015 to February 29, 2016. The United States Court of Appeals for Veterans Claims (Court) has recognized that a 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). Thus, if VA has found a veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate the Veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for a TDIU moot where 100 percent schedular rating was awarded for the same period). However, a grant of a 100 percent disability does not always render the issue of a TDIU moot. VA's duty to maximize a claimant's benefits includes consideration of whether his disabilities establish entitlement to SMC under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). In this case, the Veteran is in receipt of both a 100 percent disability rating (left total knee arthroplasty) and SMC at the housebound rate from January 14, 2015 to February 29, 2016. As this reflects the maximum available benefit, the issue of entitlement to a TDIU from January 14, 2015 to February 29, 2016 is moot. See Bradley, 22 Vet. App. at 293. The remaining issue is whether the Veteran is entitled to a TDIU from November 1, 2014 to January 13, 2015 and from March 1, 2016 to March 2, 2016. From November 1, 2014 to January 13, 2015 and from March 1, 2016 to March 2, 2016, the Veteran is in receipt of a combined disability rating of 100 percent for his prostate cancer, posttraumatic stress disorder, sleep apnea, left total knee arthroplasty, bilateral pes planus with bilateral plantar fasciitis, tinnitus, irritable bowel syndrome and gastroesophageal reflux disease, lumbar spine degenerative disc disease and spondylosis, right knee strain, erectile dysfunction, and left knee scar. Generally, a TDIU may be assigned only where the schedular rating is less than total. 38 C.F.R. § 4.16 (a). As noted above, the Court has held that VA has a duty to maximize a claimant's benefit, to include consideration of whether he is entitled to an SMC. See Buie v. Shinseki, 24 Vet. App. 242 (2011); see also Bradley v. Peake, 22 Vet. App. 280 (2008). The Board is cognizant of the decision of the Court in Bradley v. Peake, 22 Vet. App. 280 (2008). However, this case is distinguishable from Bradley in that here, the Veteran is now in receipt of a 100 percent combined schedular rating for multiple disabilities, throughout the appeal period, and the Veteran does not have a total schedular evaluation based on a single disability. Any TDIU granted would necessarily be based on all the service-connected disabilities. See 38 C.F.R. § 4.16. As such, the Board finds that from November 1, 2014 to January 13, 2015 and from March 1, 2016 to March 2, 2016, the TDIU claim is rendered moot, because the Veteran is in receipt of a combined 100 percent rating. Accordingly, there is no question or controversy for consideration by the Board with regard to entitlement to a TDIU from November 1, 2014 to March 2, 2016. As no allegation of error of fact or law remains for appellate consideration, the Board has no jurisdiction to review the appeal of the issue for entitlement to a TDIU from November 1, 2014 to March 2, 2016, and it is dismissed as moot. See 38 U.S.C. § 7105 (d)(5); 38 C.F.R. § 20.202; see also Sabonis v. Brown, 6 Vet. App. 426 (1994). LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Ko, 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.