Citation Nr: 21015683 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 09-18 468 DATE: March 18, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) is denied prior to July 13, 2016; the claim is deemed moot from July 13, 2016, forward. FINDINGS OF FACT 1. The Veteran has been awarded a 100 percent schedular evaluation for schizoaffective disorder throughout the appellate period. 2. The preponderance of the evidence indicates that, prior to July 13, 2016, the Veteran’s service-connected disabilities other than schizoaffective disorder did not render him unable to obtain or maintain substantially gainful employment. 3. From July 13, 2016, forward, the claim for TDIU is moot based on the receipt of Special Monthly Compensation (SMC) at the statutory housebound rate. CONCLUSIONS OF LAW 1. The criteria for entitlement to TDIU have not been met prior to July 13, 2016. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. 2. The claim of entitlement to TDIU from July 13, 2016, forward, is deemed moot. Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008); Herlehy v. Principi, 15 Vet. App. 33, 35 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from June 1993 to July 1998. In October 2018, the Board denied entitlement to TDIU finding that the issue was moot due to the award of a 100 percent schedular evaluation for schizoaffective disorder from February 21, 2007, the entire period on appeal, and given the procedural history and facts. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In July 2019, pursuant to a Joint Motion for Partial Remand (JMPR), the Court vacated, in part, the Board’s October 2018 denial and remanded the matter to the Board for compliance with the instructions included in the parties’ JMPR. The Board remanded the claim in December 2019 for further development by the RO, as consistent with the JMPR. The issue of TDIU was found to be intertwined with issues of service connection then in appellate status. These issues of service connection were subsequently granted by the AOJ and are no longer before the Board. In relevant part, in a December 2020 rating decision, the AOJ also granted SMC based on statutory housebound criteria as of July 13, 2016 based on the ratings assigned to these additional service connected issues. The below decision addresses the only remaining issue in appellate status, entitlement to TDIU. The case was returned to the Board for further appellate action. Entitlement to a total disability rating based upon individual unemployability The Veteran contends that entitlement for TDIU is warranted due to his service-connected disabilities. The Court has recognized that a 100 percent disability rating under the Schedule for Rating Disabilities means that a veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). Thus, 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. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period). In this case, the Veteran had a single disability, schizoaffective disorder, which was assigned a 100 percent schedular disability evaluation, effective February 21, 2007. The Board recognizes that a grant of a 100 percent disability does not always render the issue of TDIU moot. VA’s duty to maximize a claimant’s benefits includes consideration of whether his disabilities establishes entitlement to special monthly compensation (SMC) under 38 U.S.C.§ 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted if the Veteran has TDIU based on a single disability and the Veteran has a separate disability or disabilities rated as 60 percent or more disabling. See Bradley, 22 Vet. App. 280 (analyzing 38 U.S.C. § 1114(s)). SMC under 38 U.S.C. § 1114(s) is payable where the Veteran has a single service-connected disability rated as 100 percent, and (1) has additional service-connected disability or disabilities independently rated as 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 service-connected disability or disabilities. This requirement is met when the Veteran is substantially confined as a result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. See 38 C.F.R. § 3.350(i)(1)-(2). Here, the Veteran was already awarded SMC effective July 13, 2016, which falls during the period in which he had a single 100 percent rating for schizoaffective disorder. Thus, the Board need not discuss entitlement to SMC for the period following July 13, 2016, as the Veteran is already receiving such benefit. With respect to the period before July 13, 2016, the Board notes that the Veteran is not eligible for SMC because he does not meet the schedular criteria, as he did not have disabilities separate and distinct from his single 100 percent rating for schizoaffective disorder that are independently ratable at 60 percent. See March 2012 and February 2017 rating decision – code sheets. Furthermore, the lay and medical evidence does not support a factual determination that the Veteran was permanently housebound as a result of his service-connected disabilities. See March 2012 CAPRI record (noting Veteran attends a day treatment program and volunteers at a local American Legion post); April 2015 medical treatment records furnished by the Social Security Administration (SSA) (noting that despite limitations the Veteran leaves the house for weekly physical therapy appointments, does in-store grocery shopping and attends family events). 38 C.F.R. § 3.350(i)(2). Thus, the only remaining question before the Board is, with respect to the period before July 13, 2016, whether TDIU may be awarded independently of the Veteran’s service-connected schizoaffective disorder. Such an award, coupled with the 100 percent rating, would be sufficient to warrant SMC. Here, for the period prior to July 13, 2016, the other service-connected disabilities were: 10 percent rating for left knee; 10 percent rating for right knee; 10 percent for left testalgia, 10 percent for left foot ingrown toe nails with paresthesia; 10 percent for tinnitus; and a noncompensable rating for bilateral hearing loss. These ratings do not meet the criteria for schedular TDIU consideration and the evidence does not reflect that these disabilities separately resulted in preventing substantially gainful employment.   As such, and based on all the above evidence, the Board finds that the criteria for an award of TDIU have not been met prior to July 13, 2016. The issue is moot under this procedural history and facts from July 13, 2016, forward. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Minaya, 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.