Citation Nr: 21064827 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 11-11 501 DATE: October 21, 2021 ORDER Prior to January 3, 2011, entitlement to total disability based on individual unemployability (TDIU) is dismissed. FINDING OF FACT The Veteran has been in receipt of special monthly compensation (SMC) since April 27, 2010. CONCLUSION OF LAW Prior to January 3, 2011, the criteria for dismissal of entitlement to TDIU are met. 38 U.S.C. § 7104; 38 C.F.R. § 3.350(i). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1989 to November 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 Rating Decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. By way of historical background, the Veteran submitted on April 27, 2010, a request for an increase for her service-connected back disability. She was denied an increase in the September 2010 Rating Decision but timely sought review by the Board. See Oct. 15, 2010, Notice of Disagreement (NOD). In a July 2015 Decision ("Decision I"), the Board remanded the back claim for a new examination. Before that claim was returned to the Board, the Veteran filed an application for TDIU, which eventually was awarded in a September 2016 Rating Decision. The agency of original jurisdiction (AOJ) award TDIU and SMC effective December 10, 2015. The latter award was premised on the Veteran's TDIU rating in addition to having other service-connected disabilities independently rated as 60 percent or more disabling. In an October 2017 Decision, ("Decision II"), the Board found that remand again was required for the back claim in light of the holding in Correia v. McDonald, 28 Vet. App. 158 (2016). A March 2018 Rating Decision awarded the Veteran, among other things, an earlier effective date of July 29, 2014, for her award of SMC. The Board again found in a June 2018 Decision ("Decision III") that remand for the back claim was warranted. An October 2019 Board Decision ("Decision IV") attempted to put to rest the Veteran's back claim and the associated claims for her neurological impairments. Through an August 4, 2020, Joint Motion for Partial Remand (JMPR), the Veteran and the Office of the General Counsel for VA (collectively referred to as "the Parties") moved in the United States Court of Appeals for Veterans Claims (CAVC) to vacate Decision IV with respect to the Board's finding that, prior to July 29, 2014, a disability rating greater 10 percent for the back disability was not warranted, as well as the Board's overall failure to address whether, prior to December 10, 2015, entitlement to TDIU was warranted, and, if so and based on a single disability, whether entitlement to SMC under 38 U.S.C. § 1114(s) was proper. The CAVC adopted the Parties' JMPR by an August 5, 2020, Order. In a September 2020 Rating Decision, the AOJ awarded on its own accord an earlier effective date of January 3, 2011, for the Veteran's SMC. When the Board readdressed the back, TDIU, and SMC claims in its March 2021, Decision ("Decision V"), it remanded them all. It noted, however, that the TDIU and SMC issues were limited, due to the AOJ's September 2020 award, to review prior to January 3, 2011. It explained that, because the Veteran now was in receipt of SMC beginning January 3, 2011, TDIU between January 3, 2011, and December 10, 2015, legally was moot. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008); Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); 38 C.F.R. § 3.350(i). In its most recent July 2021 Decision ("Decision VI"), the Board awarded, prior to July 29, 2014, a 20 percent rating for the Veteran's back disability; it remanded the TDIU and SMC issues, permitting the AOJ to readdress them due to the change in the Veteran's disability picture. In an August 2021 Rating Decision, the AOJ awarded the Veteran SMC beginning April 27, 2010the date she initially filed for her back claim. Thus, with respect to SMC, the Veteran has been awarded a full grant of benefits sought on appeal, so that issue no longer is before the Board and will not be discussed further. Cf. Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). Because of the AOJ's most recent award, the remaining issue of whether the Veteran is entitled to TDIU prior to January 3, 2011, is a moot point, as there are no more benefits possibly available to her during this timeframe. Beginning the date she filed for her back claim until the present, the AOJ has determined that she has a single disability rated as totaling disabling with other service-connected disabilities independently rated as 60 percent or more disabling. See 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). For the Board to engage in analysis to determine whether she is totally disabled, prior to January 3, 2011, due to her service-connected disabilities, would be a duplicative exercise unable to yield any further benefits for her. See Bradley, 22 Vet. App. at 294; Buie, 24 Vet. App. at 250; 38 C.F.R. § 3.350(i). Therefore, this appeal is dismissed for a lack of any controversy or justiciable claim. The Board simply has no jurisdiction. See 38 U.S.C. § 7104. [SIGNATURE ON NEXT PAGE] JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Trevor T. Bernard, 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.