Citation Nr: 21013456
Decision Date: 03/09/21	Archive Date: 03/09/21

DOCKET NO. 17-36 774
DATE: March 9, 2021

ORDER

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

FINDING OF FACT

Throughout the applicable period, service connection has been established for PTSD, rated as 100 percent disabling, but no other disability.

CONCLUSION OF LAW

The criteria for entitlement to a TDIU have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19.

 

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Navy from March 1972 to December 1975.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon.

The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a February 2020 Board videoconference hearing.  A transcript of that hearing has been associated with the claims file.

This appeal was last before the Board in December 2020.  At that time, the Board granted entitlement to service connection for posttraumatic stress disorder (PTSD), and remanded the TDIU claim for adjudication following the assignment of an initial disability evaluation for the newly service-connected PTSD.  

In a December 2020 rating decision, the RO awarded the Veteran a 100 percent disability evaluation for PTSD from April 2, 2013.  In a December 2020 Supplemental Statement of the Case (SSOC) the RO continued the TDIU denial.  

1. Entitlement to a TDIU.

The Veteran’s PTSD and TDIU claims have run concurrently since April 2, 2013, the date VA received his claims.  Service connection has not been established for a disability other than PTSD.

Here, the award of a 100 percent schedular rating renders moot the issue of entitlement to a TDIU.  See Herlehy v. Principi, 15 Vet. App. 33 (2001).  In this regard, the Board is cognizant of the decision of the United States Court of Appeals for Veterans Claims (Court) in Bradley v. Peake, 22 Vet. App. 280 (2008) in which the Court held that, although no additional disability compensation may be paid when a total schedular disability evaluation is already in effect, a separate award of a TDIU predicated on a single disability (perhaps not ratable at the schedular 100 percent level) when considered together with another disability separately rated at 60 percent or more may warrant payment of special monthly compensation (SMC) under 38 U.S.C. § 1114(s).  The Court reasoned that it might therefore benefit the Veteran to obtain or retain a TDIU even where a 100 percent schedular evaluation is already in effect.  Here, however the Veteran has no other service-connected disability.  As such, the concerns addressed in Bradley are not present in the current case, and the claim is denied.

 

 

C. TRUEBA

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Joseph R. Keselyak, 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.