Citation Nr: 21077527 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 18-53 001 DATE: December 30, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is dismissed. REMANDED Entitlement to service connection for a back disorder is remanded. FINDING OF FACT For the period on appeal, the Veteran is in receipt of a 100 percent schedular rating for Meniere's syndrome with left ear hearing loss and tinnitus, his sole service connected disability. CONCLUSION OF LAW For the period on appeal, the claim for a TDIU is rendered moot in light of the assignment of a 100 percent evaluation for Meniere's syndrome with left ear hearing loss and tinnitus. 38 U.S.C. § 7105; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1977 to April 1981. He served honorably in the U.S. Navy, including sea service. The Board thanks the Veteran for his service to our country. The Veteran testified before the undersigned at a Board videoconference hearing in February 2020. A transcript of the hearing is of record. The Board previously granted service connection for Meniere's syndrome, left ear hearing loss, and tinnitus and remanded the issues of the back disorder and TDIU in June 2020 for additional development. Upon consideration of additional evidence obtained pursuant to the June 2020 Board remand, an interim June 2020 rating decision assigned a 100 percent rating from July 5, 2016, the date of claim, for Meniere's syndrome with left ear hearing loss and tinnitus. The case has now returned to the Board for further appellate review. Entitlement to a TDIU is dismissed. It is a well-established judicial precedent that when there is no case or controversy, or when a once live case or controversy becomes moot, an appellate body lacks jurisdiction. See Bond v. Derwinski, 2 Vet. App. 376 (1992); Mokal v. Derwinski, 1 Vet. App. 12, 15 (1990). The law provides that 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(d). The governing regulation, 38 C.F.R. § 4.16, specifically provides that a total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to follow a substantially gainful occupation as a result of service connected disabilities. In this case, during the period on appeal, a 100 percent schedular rating was in effect for the Veteran's Meniere's syndrome with left ear hearing loss and tinnitus. The Veteran was advised that a finding of TDIU is precluded in these circumstances in the November 2020 statement of the case. The Board is cognizant of VA's duty to maximize benefits. See Bradley v. Peake, 22 Vet. App. 280 (2008). This duty requires VA to assess all of a claimant's disabilities to determine whether any combination of the disabilities established entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114(s). Buie v. Shinseki, 24 Vet. App. 242, 250 (2010). SMC at the housebound rate is payable where a veteran has a single service-connected disability rated as 100 percent and: (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or, (2) is permanently housebound by reason of a service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). Here, during the period on appeal, the Veteran was in receipt of a single service connected disability, Meniere's syndrome with left ear hearing loss and tinnitus, rated as 100 percent. He has no other service-connected disabilities. Accordingly, the claim for a TDIU is rendered moot and is therefore dismissed. REASONS FOR REMAND Entitlement to service connection for a back disorder is remanded. In the June 2020 Board remand, the Board directed the Agency of Original Jurisdiction to obtain a supplemental medical opinion as to the nature and etiology of the Veteran's back disorder. A November 2020 exam scheduling request modification notes that the examination was cancelled at the Veteran's request. There is no report of contact or report of general information documenting the Veteran's request for cancellation. In December 2020, the Veteran's attorney clarified that the Veteran resides abroad and was unable to fly to the United States due to COVID-19 restrictions. As a valid reason has been provided for the Veteran's inability to attend an examination, a remand is warranted. An examination should be scheduled only if the clinician determines that an examination is necessary to render the addendum opinion. The AOJ is advised that the Veteran resides abroad and may be subject to COVID-19 travel restrictions. The Board makes no credibility determinations at this time. The matters are REMANDED for the following action: 1. Please secure for the record copies of complete updated clinical records (any not already of record) of all VA and non-VA treatment the Veteran has received for the disabilities on appeal. Please ask the Veteran to provide the releases necessary for VA to secure private treatment records. 2. After the action requested in paragraph 1 is complete, please refer the claim to an appropriate clinician for an addendum opinion as to the nature and etiology of the lower back disorder. The Veteran's claims-file must be made available to and reviewed by the clinician. The clinician is requested to respond to the following: (a.) Is the Veteran's lower back disorder at least as likely as not (a 50 percent or greater probability) related to service, to include a 1978 automobile accident, hunching over to perform his duties while aboard a submarine, and loading 100-pound bags of supplies? In providing an opinion, the clinician should specifically review lay statements and testimony with regard to the in-service automobile accident, a February 2020 medical opinion from Dr. C.M., a December 1997 private treatment report from Dr. F.K.G. (associated with the record in February 2020) identifying an intercurrent November 1997 injury to the lumbar spine and subsequent surgery, and SSA records. For the purposes of rendering the requested opinion, the clinician is to treat as fact the Veteran's report of the 1978 automobile accident. The clinician is advised that there is no legal requirement that the in-service event or injury must be the sole cause of the disorder claimed. If the basis of a negative opinion is the absence of evidence of treatment in the Veteran's in-service medical records, the clinician must explain whether (1) treatment for a back disorder or its symptoms by a corpsman would have been noted in the Veteran's treatment records at the time; and (2) the Veteran would have sought treatment for a back disorder or its symptoms at the time. ONLY IF the clinician determines that an examination is necessary for the addendum opinion, the Veteran should be scheduled for an appropriate VA examination to determine the nature and etiology of the disorder. The clinician must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. The clinician should take into consideration that the Veteran is competent to report in service and post-service symptom experiences; other witnesses are competent to report observable symptoms. If the clinician cannot provide an opinion without resorting to speculation, the clinician should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Vashaw, 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.