Citation Nr: 21069958 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 20-09 538 DATE: November 22, 2021 ORDER Entitlement to an initial disability rating for post-traumatic stress disorder (PTSD) in excess of 70 percent for the period prior to October 10, 2019 is dismissed. FINDING OF FACT The Veteran has been granted the maximum benefit allowed by law and regulation for his service-connected PTSD disability for the period prior October 10, 2019. CONCLUSION OF LAW As there is no longer a claim in controversy, the claim for an initial evaluation in excess of 70 percent for the Veteran's service-connected PTSD disability for the period prior to October 10, 2019, is moot. 38 C.F.R. § 3.103 (a); A.B. v. Brown, 6 Vet. App. 35, 38 (1993). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from May 1960 to September 1964. This matter comes before the Board of Veterans' Appeals (Board) from a June 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claim was remanded by the Board in July 2020 in order to obtain a new VA medical examination to assess the current severity level of his service-connected PTSD disability and to further develop his claim for increased compensation based on unemployability (TDIU). Upon remand the Veteran was granted a 100 percent disability rating for his service-connected PTSD disability for the period from October 10, 2019 to present. See February 2021 rating decision. Additionally, the Veteran was granted a TDIU for the entire period on appeal relative to his increased rating claim. See April 2021 rating decision. 1. Entitlement to an initial rating for post-traumatic stress disorder (PTSD) in excess of 70 percent for the period prior to October 10, 2019 On a claim for an increased rating, the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded. A.B. v. Brown, 6 Vet. App. 35, 38 (1993). In this case, while the Veteran has not been granted the maximum schedular rating for his service-connected PTSD for the period prior to October 10, 2019, he has been granted the maximum benefit allowed by law and regulation and the Board finds his claim for an increased schedular rating moot. As discussed above, the Veteran has now been granted a total disability rating based on individual unemployability specifically due solely to his service-connected PTSD disability. Therefore, the Veteran is in receipt of a TDIU effective November 4, 2016 to present, thereby encompassing the entire rating period on appeal for his PTSD increased rating claim (prior to October 10, 2019). The Board acknowledges that the United States Court of Appeals for Veterans Claims (Court) has previously held that the award of a TDIU does not moot a Veteran's claim for a 100 percent schedular rating. See Acosta v. Principi, 18 Vet. App. 53, 60-61 (2004). In support of its decision in Acosta, the Court noted that certain benefits flowed from a 100 percent schedular rating that were not available through the grant of a TDIU alone, pointing to the special monthly compensation available (SMC) under 38 U.S.C. § 1114 (s), which are only available to a Veteran who has a "service-connected disability rated as total." Id. However, since the Court's decision in Acosta, it subsequently held that a grant of TDIU based on a single disability constitutes a totally rated service-connected disability for purposes of 38 U.S.C. § 1114 (s). See Bradley v. Peake, 22 Vet. App. 280, 293 (2008); see also Buie v. Shinseki, 24 Vet. App. 242, 250 (2010). Thus, with its holding in Bradley, the Court eliminated the distinction in benefits available from a grant of a 100 percent schedular rating for a single service-connected disability as opposed to the grant of a TDIU based on a single service-connected disability. In some instances, SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent. See Bradley, 22 Vet. App. 280. However, that is not the case in the matter currently before the Board, as the Veteran does not have one or more distinct service-connected disabilities, which are independently ratable at 60 percent and involve different anatomical segments or bodily systems. See April 2021 Rating Decision Codesheet; 38 C.F.R. § 3.350(i). Rather, his sole other service-connected disability is bladder cancer, rated noncompensably. Therefore, no additional benefit can be granted pursuant to 38 U.S.C. § 1114 (s). Additionally, the Board notes that a 100 percent schedular rating may be reduced, pursuant to the procedural requirements in 38 C.F.R. § 3.105 (e), after an examination showing material improvement. 38 U.S.C. § 1155; 38 C.F.R. § 3.343 (a). In contrast, a TDIU may only be reduced upon a determination that a Veteran has "actual employability" shown by clear and convincing evidence. 38 C.F.R. § 3.343 (c)(1). Moreover, if the TDIU was granted after January 1, 1985, the Veteran's TDIU may not be reduced even after a Veteran begins to engage in substantially gainful employment unless the Veteran is able to maintain employment for a period of at least 12 months. 38 U.S.C. § 1163 (a); 38 C.F.R. § 3.343 (c)(2). Therefore, for the reasons discussed above, the Board finds that because the Veteran has been awarded a TDIU solely for his service-connected PTSD disability for the entire pendency of the appeal period, there are no remaining claims on appeal or pending as he has been granted the maximum benefit allowed by law and regulation. Accordingly, there is no longer a claim in controversy, and the Veteran's claim for a rating in excess of 70 percent for PTSD is dismissed as moot. A.B. v. Brown, 6 Vet. App. 35, 38 (1993). Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.R. Fey, 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.