Citation Nr: 22040106
Decision Date: 07/13/22	Archive Date: 07/13/22

DOCKET NO. 15-04 150A
DATE: July 13, 2022

REMANDED

Entitlement to a total disability evaluation based on individual unemployability (TDIU) as due to service-connected disabilities is remanded.

REASONS FOR REMAND

The Veteran served on active duty from November 1958 to March 1979.

This matter again comes before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded this matter in October 2019, April 2020, and October 2020.

As a preliminary matter, the Board notes that the Veteran filed a VA Form 9 in response to the most recent Supplemental Statement of the Case (SSOC) issued in October 2020. See October 2020 VA Form 9. In this correspondence, the Veteran requested a hearing before a Veterans Law Judge (VLJ) regarding this appeal. However, in May 2022, the Board received correspondence from the Veteran withdrawing his hearing request. See May 2022 Correspondence from Veteran. Therefore, the Board will discuss the matter on appeal based on the evidence already affiliated with the claims file.

The Board acknowledges that in an October 2020 rating decision, the RO implemented the Board's previous grant of service connection for chronic obstructive pulmonary disease (COPD) and awarded the Veteran a 100 percent disability evaluation for this condition.

A TDIU claim can be granted despite the existence of a combined schedular total rating for the purpose of establishing entitlement to Special Monthly Compensation (SMC) under 38 U.S.C. § 1114(s). In Bradley v. Peake, 22 Vet. App. 280 (2008), the United States Court of Appeals for Veterans Claims (Court) held that the issue of entitlement to a TDIU may not be moot based on the assignment of total schedular rating under certain circumstances, in particular where SMC could be awarded based on the consideration of a TDIU rating under 38 U.S.C. § 1114(s). See also Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2011). Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the Court's decision in Bradley recognizes a separate award of a TDIU predicated on a single disability may form the basis of an award of SMC.

The RO, in the above-mentioned October 2020 SSOC, did not consider the Court's ruling in Bradley in determining this matter. Therefore, the Board finds that remand is warranted so that the RO adjudicate the issue of entitlement to a TDIU in light of the Court's ruling in Bradley.

The matters are REMANDED for the following action:

1. The RO should readjudicate the issue of entitlement to a TDIU in light of the Court's holding in Bradley v. Peake and consider whether TDIU is warranted to entitle the Veteran to SMC under 38 U.S.C. § 1114(s).

If the above-sought benefit remains denied, the RO should issue a SSOC to the Veteran and his representative. An appropriate period of time should be allowed for response before returning this appeal to the Board.

(Signature on next page) 

 

DELYVONNE M. WHITEHEAD

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Hoffman

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.