Citation Nr: 22011869 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 17-61 675 DATE: March 2, 2022 ORDER A total disability rating based on individual unemployability (TDIU) is dismissed. FINDINGS OF FACT 1. From August 18, 2020, the Veteran's service-connected heart disability is rated 100 percent disabling and he has a separate award of special monthly compensation (SMC) under the housebound criteria. 2. There is no expressly raised, or reasonably raised, theory that a service-connected disability by itself resulted in a TDIU, prior to August 18, 2020. CONCLUSION OF LAW The claim for a TDIU is dismissed as moot. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 1975 to April 1979 and from April 1981 to April 1997. The case is on appeal from an August 2015 rating decision. In April 2020, the Veteran testified at a Board hearing. This claim came before the Board most recently in November 2021 and was remanded for further development. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran, his representative and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). A TDIU. Procedurally, the RO issued an October 2020 rating decision that granted service connection for congestive heart failure (CHF) and assigned a 100 percent rating from August 18, 2020. The RO also issued a May 2021 rating decision which granted SMC based on housebound criteria under 38 U.S.C. § 1114(s), effective August 18, 2020. This moots the TDIU issue from August 18, 2020. The Board notes the Veteran has received a 100 percent rating as a result of a combination of his service-connected disabilities pursuant to the rating schedule, from October 22, 2014 to August 17, 2020. The United States Court of Appeals for Veterans Claims (Court) has recognized that a 100 percent 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)). However, a grant of 100 percent disability rating does not always render the issue of a TDIU moot. VA's duty to maximize a claimant's benefits includes consideration of whether his disabilities establish entitlement to SMC under 38 U.S.C. § 1114(s). 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 a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent. See Bradley, 22 Vet. App. at 280 (analyzing 38 U.S.C. § 1114(s)). As the Veteran receives a 100 percent rating for his heart disability and SMC per 38 U.S.C. § 1114(s), effective August 18, 2020, the Board will review the record for the potential TDIU prior to August 18, 2020, based on a single disability. In the November 2014 TDIU application, the Veteran asserts a TDIU is warranted due to disorders of his back, hepatitis, hearing loss, sleep disturbance, gum disease and kidney disease. He indicated he last worked full-time in June 2013. Thereafter, during the April 2020 Board hearing, the Veteran stated that he last worked in 2016 and that he has been unable to work since leaving his last position. He also stated that he is unable to work due to lack of motivation and an inability to focus and concentrate, which he attributed primarily to his psychiatric and back disabilities. Most recently, in an August 2020 TDIU application, the Veteran asserts his TDIU is due to his migraines, depression, sleep apnea and back disorder, all of which are service connected. He indicated he last worked full-time July 1, 2017. In this case, the Board finds the issue of a TDIU prior to August 18, 2020 is also moot. Based on the most recent August 2020 TDIU application, the Veteran worked full-time until July 1, 2017. At that time, the Veteran is assigned a combined 100 percent schedular rating. The Board notes the Veteran has not asserted, and there is no indication in the record, that a service-connected disability by itself has resulted in a TDIU prior to August 18, 2020. That is, there is no expressly raised, or reasonably raised, theory that a service-connected disability by itself resulted in a TDIU, prior to August 18, 2020 Therefore, this case is distinguishable from both Bradley and Buie, and as such, a TDIU prior to August 18, 2020 is moot. In sum, the Veteran is assigned a 100 percent disability rating for his service-connected heart disability, as well as SMC based on housebound criteria under 38 U.S.C. § 1114(s), effective August 18, 2020. Further, prior to that date, he has not asserted and there is no indication in the record that a service-connected disability by itself has resulted in a TDIU. Thus, as there remains no case or controversy concerning whether the Veteran is entitled to the benefit sought, the appeal of the claim for a TDIU prior to August 18, 2020 is moot will be dismissed. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Isaacs, Brandon 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.