Citation Nr: 21070376 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 19-22 939 DATE: November 23, 2021 ORDER Vacatur of the grant of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) contained in the Board's February 2021 Decision is granted. A TDIU for the period from October 12, 2017, to December 17, 2020, is granted. FINDINGS OF FACT 1. The February 2021 Board decision involved a due process error as to the effective date of the Veteran's award of a TDIU. 2. For the period from October 12, 2017, to December 17, 2020, the Veteran's service connected disabilities prevented him from obtaining or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. Vacatur of the Board's February 22, 2021, decision as it pertains to the grant of a TDIU is warranted. 38 U.S.C. §§ 7103 (c), 7104(a); 38 C.F.R. § 20.904. 2. The criteria for TDIU from October 12, 2017, to December 17, 2020, are met. 38U.S.C. §§1155, 5107; 38C.F.R. §§3.321, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1967 to March 1972. Vacate VA regulations provide that the Board may vacate an appellate decision at any time upon the request of the Veteran or his representative or on the Board's own motion when there has been a denial of due process. 38 C.F.R. § 20.904 (a). The Board's prior February 22, 2021, decision granted a TDIU prior to December 18, 2020, but did not identify an effective date. In order to avoid confusion and any prejudice to the Veteran, the Board vacates the portion of its Decision which pertained to the award of a TDIU. The remainder of the February 2021 Decision is undisturbed and remains in effect. TDIU TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation because of a single service-connected disability ratable at 60 percent or more, or because of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16 (a). As of July 28, 2016, and prior to the December 18, 2020, grant of a 100 percent rating for the Veteran's PTSD contained in the Board's February 2021 Decision, the Veteran has a combined rating of 90 percent with his diabetic nephropathy with hypertension rated at 60 percent. Hence, the Veteran meets the schedular criteria for a TDIU rating per 38C.F.R. §4.16 (a). In December 2020, the Veteran submitted two private reports from medical personnel that reviewed the evidence of record, conducted interviews with the Veteran and his wife, and provided opinions that the Veteran's service connected disabilities rendered him unemployable. Based on these reports, the Board finds that entitlement to a TDIU is warranted. However, pursuant to the Veteran's own application for a TDIU submitted in December 2020, he had gainful employment until October 11, 2017. Thus, a TDIU is awarded from the date he became unemployed as he has identified it, October 12, 2017, until his 100 percent PTSD rating, effective December 18, 2020. It is clear that the Veteran's PTSD and other service connected disabilities prohibited him from maintaining substantially gainful employment. However, 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). 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 that veteran totally disabled on any other basis. Herlehy v. Principi, 15 Vet. App. 33, 35 (2001). Thus, the Veteran's claim for a TDIU is moot as of the December 18, 2020, 100 percent rating for PTSD as he has been awarded a 100 percent schedular rating as of that date. A TDIU is, thus, granted from October 12, 2017, to December 17, 2020. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Parrish, 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.