Citation Nr: 21024062 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 16-02 789 DATE: April 22, 2021 ORDER The issue of entitlement to a total rating based on unemployability due to service-connected disability (TDIU) is dismissed as moot. REMANDED Entitlement to service connection for diabetes mellitus is remanded. FINDING OF FACT An April 2019 rating decision restored the 100 percent evaluation for service-connected malignant fibrous histiocytoma of the left thigh, resulting in continued entitlement to a 100 percent rating since January 2000. CONCLUSION OF LAW The appeal as to the issue of entitlement to a TDIU is dismissed as moot. 38 U.S.C. § 7105(d)(5); 38 C.F.R. §§ 20.202, 20.204. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1967 to August 1969 and from November 1969 to December 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was last before the Board in December 2018, when it was remanded for further development. 1. Entitlement to a total disability rating based on individual unemployability (TDIU) is dismissed as moot In July 2012, the Veteran requested consideration for TDIU in response to notice of a reduction in rating for the service-connected malignant fibrous histiocytoma of the left thigh from 100 percent to 10 percent. Thereafter, an April 2019 rating decision restored the 100 percent evaluation for service-connected malignant fibrous histiocytoma of the left thigh, from the date of reduction, September 1, 2012. This action resulted in the Veteran’s 100 percent rating being continuously in effect since January 2000. That rating decision also awarded service connection for depressive disorder, with a 100 percent rating assigned effective July 10, 2012. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). In this case, as a result of the April 2019 rating decision, the Veteran is in receipt of a total (100 percent) rating throughout the period on appeal. Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. Because the April 2019 rating decision restored the 100 percent rating for the service-connected malignant fibrous histiocytoma of the left thigh, effective September 1, 2012 and assigned a 100 percent evaluation for the service connected depressive disorder effective July 10, 2012, throughout the appeal period under review, there is no justiciable case or controversy regarding the issue currently before the Board. See Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2010). Therefore, because there are no remaining allegations of error of fact or law with respect to the issue of entitlement to a TDIU, the Veteran’s appeal must be dismissed. 38 U.S.C. §§ 7104, 7105(d)(5); 38 C.F.R. § 20.104. REASONS FOR REMAND 2. Entitlement to service connection for diabetes mellitus is remanded. The Veteran contends he was diagnosed with diabetes mellitus prior to separation from active duty service. Service treatment records note hyperglycemia in November 1987 with a fasting glucose blood work ordered. During his October 2011 VA examination, the Veteran reported he was diagnosed with diabetes mellitus in 1975. The Board notes that the Veteran has a current diagnosis of diabetes mellitus. Upon review of the record, the Board finds that a medical opinion concerning diabetes mellitus is warranted. The matters are REMANDED for the following action: 1. Obtain an opinion concerning the claim for service connection for diabetes mellitus. If an examination is deemed necessary to respond to the question presented, one should be scheduled After review of the claims file, the examiner should opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s diabetes mellitus arose during service or is otherwise related to service. The examiner should explain why or why not.   2. If the claim remains denied, issue a supplemental statement of the case. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Asare, 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.