Citation Nr: 22047465 Decision Date: 08/22/22 Archive Date: 08/22/22 DOCKET NO. 15-22 056 DATE: August 22, 2022 ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). ORDER The appeal of entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is dismissed. FINDING OF FACT In April 2022, the agency of original jurisdiction (AOJ) granted TDIU for the entire period on appeal, effective January 3, 2012. CONCLUSION OF LAW There remains no case or controversy with respect to the Veteran's entitlement to a TDIU over which the Board may exercise jurisdiction. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 20.103, 20.104. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 1990 to January 1993. This matter come before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a travel Board hearing. A copy of the transcript has been associated with the Veteran's electronic claims folder. In March 2022, the Board, in pertinent part, remanded the Veteran's TDIU claim to permit the RO to assign an appropriate rating for the Veteran's service connection cervical spine disability claim, which was granted in the March 2022 Board decision. In an April 7, 2022, rating decision, the Veteran's TDIU claim was granted, effective January 3, 2012, the date the Veteran filed his claim, to include his increased rating claim for right fifth metatarsal fracture residuals (foot disability). The matter has returned to the Board for appellate review. Entitlement to a total disability rating based on individual unemployability (TDIU). Based on the evidence of record, the issue of entitlement to a TDIU rating was reasonably raised as part of the January 3, 2013, claim for an increased rating for a foot disability. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009); see also AB v. Brown, 6 Vet. App. 35, 38-39 (1993). Accordingly, for purposes of adjudicating these claims, January 3, 2012, is considered the date of the Veteran's claim for a TDIU. Notably, as referenced above, the Board granted the Veteran's claim of service connection for a cervical spine disability in a March 2022 decision. The Board also remanded the issue of TDIU to permit the RO to assign an appropriate rating for the Veteran's cervical spine disability and then readjudicate the claim for entitlement to TDIU. Thereafter, in an April 2022 rating decision, the AOJ granted the Veteran's TDIU claim from January 3, 2012, the date of the Veteran's claim. That decision also granted basic eligibility under 38 U.S.C. Chapter 35 beginning the same date. Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. One of the principal functions of the Board is to make determinations of appellate jurisdiction. 38 C.F.R. § 20.103. The Board may address questions pertaining to its jurisdictional authority to review a particular case. 38 C.F.R. § 20.101(d). The TDIU grant from January 3, 2012, renders moot entitlement to a TDIU for the relevant period, as there are no additional benefits available to the Veteran under the criteria of 38 U.S.C. § 5110 and 38 C.F.R. §§ 3.155, 3.400, and 4.16 on the issue of entitlement to TDIU. Notably, the Board considered the "look back period" and found no evidence of unemployability for the period prior to January 3, 2012. Indeed, on his May 2019 Application for Increased Compensation Based on Unemployability submitted by the Veteran's counsel, the Veteran reported that he became too disabled to work because of his service-connected disabilities on December 30, 2012, which the Board observes, is after the date in which the Veteran was awarded TDIU (January 3, 2012). The Veteran indicated that from 2007 to December 2012, he was employed as a locomotive operator, 35-48 hrs. per week, with the highest gross earnings per month reported as $6,100.00. See May 14, 2019, VA Form 21-8940 (Receipt Date, May 20, 2019). The Veteran's treatment records additionally do not reflect unemployability within the one-year period prior to January 3, 2012. As entitlement to TDIU is not warranted prior to January 3, 2012, the Board finds the issue of TDIU has been rendered moot, as entitlement to TDIU has been granted for the entire period on appeal. As the benefit sought has been allowed, there remains no case or controversy over which the Board may exercise jurisdiction. See 38 U.S.C. §§ 511, 7104; 38 C.F.R. §§ 20.103, 20.104; Grantham v. Brown, 114 F.3d. 1156 (Fed. Cir. 1997). The appeal must therefore be dismissed. If the Veteran is dissatisfied with the effective date of his award, he may pursue an appeal of the April 2022 rating decision if he wishes to do so. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Little, 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.