Citation Nr: 21011241
Decision Date: 03/01/21	Archive Date: 03/01/21

DOCKET NO. 14-00 178
DATE: March 1, 2021

ORDER

 The appeal is dismissed.

FINDING OF FACT

There are no issues currently on appeal before the Board.  

CONCLUSION OF LAW

No issues are currently on appeal before the Board.  38 U.S.C. § 7105; 38 C.F.R. § 20.200.

REASONS AND BASES FOR FINDING AND CONCLUSION

1.  Dismissal.  

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C. § 7105. The Board has jurisdiction over matters in which a timely, valid Notice of Disagreement (NOD) has been filed.  38 C.F.R. § 19.20.  Effective March 24, 2015, a standard form for a NOD (VA Form 21-0958) is required. 

In January 2020 the Board issued a decision addressing a claim for a total disability rating based on individual unemployability (TDIU).  In its decision, the Board granted a TDIU for the period from September 10, 2012 to March 1, 2014.  The Board stated that the Veteran does not meet the schedular TDIU criteria under 38 C.F.R. § 4.16 (a) as of March 1, 2014, because the Veteran has two service-connected disabilities (bilateral hearing loss (60 percent disabling) and (tinnitus (10 percent disabling)) with a combined disability rating of only 60 percent.  See 38 C.F.R. § 4.16 (a).  The Board remanded the issue of entitlement to TDIU for the period as of March 1, 2014 and referred that issue to the Director of the Compensation Service (Director) for extraschedular consideration pursuant to 38 C.F.R. § 4.16 (b).  

In a decision, dated September 14, 2020, the RO effectuated the Board’s January 2020 decision.  The RO’s decision indicated that a TDIU “is granted effective September 10, 2012.”  

In October 2020, the RO notified the Veteran that it had made a clear and unmistakable error in its September 14, 2020 decision, to the extent that its decision indicated that a TDIU was continued beyond the BVA’s grant, i.e., beyond March 1, 2014.  

In December 2020, the RO obtained an advisory opinion from the Executive Director, Compensation and Pension Service (“C&P Director”), stating that the criteria for a TDIU on an extraschedular basis are not met as of March 1, 2014.  The C&P Director explained that the Veteran meets the criteria for TDIU on a schedular basis as of the date.  Specifically, the Veteran has a single disability evaluated as 60 percent disabling as of March 1, 2014.  

The Board notes that the C&P Director’s opinion appears to be a misreading of 38 C.F.R. § 4.16 (a).  See Holland v. Brown, 6 Vet. App. 443, 446 (1994).  However, and in any event, in January 2021, the RO issued a decision in which it granted a TDIU from March 1, 2014.  

In summary, a Board docket has been created in which the issue listed, entitlement to a TDIU as of March 1, 2014, has already been adjudicated favorably to the Veteran.  Accordingly, the Board will dismiss this case, as there is currently no case or controversy before it with regard to this Veteran.

 

 

MATTHEW W. BLACKWELDER

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	T.S.E., 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.