Citation Nr: 21007955
Decision Date: 02/11/21	Archive Date: 02/11/21

DOCKET NO. 17-55 282
DATE: February 11, 2021

ORDER

Entitlement to a total disability based upon individual unemployability (TDIU) is dismissed.

FINDING OF FACT

In light of the award of an initial 100 percent rating for posttraumatic stress disorder (PTSD) from April 30, 2013, there remains no question of law or fact to decide regarding the issues remanded by the Board in July 2020.

CONCLUSION OF LAW

The criteria for dismissal of entitlement to a TDIU have been met.  38 U.S.C. § 7105; 38 C.F.R. § 20.205 § 19.55.

 

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active service from November 1984 to November 1989.  This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon.

In July 2020, the Board remanded the appeal for additional development.  

This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900.  38 U.S.C. § 7107 (a)(2).

1. Entitlement to a TDIU

In September 2020, the RO granted a 100 percent schedular rating for PTSD effective April 30, 2013.  The assignment of a 100 percent schedular evaluation renders the TDIU claim moot in this instance.

The Board is mindful of the fact that 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 the Veteran’s disabilities establishes entitlement to SMC under 38 U.S.C. § 1114.  Specifically, 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 upon service-connected disabilities other than the disability rated at 100 percent, which would then satisfy the second requirement of an additional disability or disabilities of 60 percent.  See Bradley v. Peake, 22 Vet. App. 280, 294 (2008) (analyzing 38 U.S.C. § 1114 (s)); see also 75 Fed. Reg. 11,229 -04 (March 10, 2010) (withdrawing VAOPGCPREC 6-1999).  

In this case, however, the Veteran is not service-connected for disabilities other than PTSD, and thus is not independently rated for other disabilities at 60 percent or more.  Therefore, the Veteran’s benefits have been maximized from April 30, 2013.  See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley, 22 Vet. App. 280.

For these reasons, the Board finds that there is no case or controversy regarding the issues remanded by the Board in July 2020, and no remaining allegation of error of fact or law for appellate consideration.  38 U.S.C. § 7105 (d)(5).  The claim for a TDIU is therefore moot and must be dismissed.  Sabonis v. Brown, 6 Vet. App. 426 (1994).

 

 

D. JOHNSON

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	D. Lauritzen, 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.