Citation Nr: 23001908 Decision Date: 01/11/23 Archive Date: 01/11/23 DOCKET NO. 16-53 375A DATE: January 11, 2023 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability (accrued benefits) is moot, and therefore dismissed. REMANDED Entitlement to service connection for a gastrointestinal (GI) bleed (accrued benefits) is remanded. FINDING OF FACT The claim for TDIU is moot because the Veteran's service-connected disabilities are already rated at 100 percent, and he has already been granted special monthly compensation (SMC) which accrued before his passing. CONCLUSION OF LAW The criteria for the assignment of TDIU due to service-connected disabilities is moot and the claim is dismissed. 38 U.S.C. § 7105(d); 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active service with the United States Army from October 1991 to October 1995, November 2003 to April 2004, November 2004 to December 2005, and November 2006 to February 2013. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran filed an intent to file a claim on June 4, 2015. After filing the intent to file, the Veteran completed the VA 21-526EZ, Fully Developed Claim for compensation on the date of his death. The Veteran passed away in August 2015, and afterwards a Request for Substitution of Claim Upon Death of Claim was submitted. Substitution was granted and the Veteran's spouse, hereinafter the Appellant, is now substituted for the claim at issue. The Appellant testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ) in October 2021. A written transcript of the hearing has been prepared and is associated with the claims file. In March 2022, the Board remanded the claims for further development, and after a supplemental statement of the case, the claims are back before the Board for adjudication. 1. Entitlement to TDIU (accrued benefits) is moot. While the Board is sympathetic to the claim for total disability (TDIU) before the Veteran's passing, the claim is moot for the reasons discussed below. 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). In this case, the claim of entitlement to accrued TDIU benefits has been rendered moot since June 4, 2015, the date of the Veteran's intent to file a claim, because he was granted a rating of 100 percent for large b-cell Burkitt's lymphoma. See Bradley v. Peake, 22 Vet. App. 280 (2008). With emphasis, the Veteran was granted a 100 percent rating from his intent to file a claim, the earliest effective date, to his passing. Generally, 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 some cases, a grant of a 100 percent disability does not render the issue of TDIU moot. Particularly, VA has a duty to maximize a claimant's benefits, which sometimes includes consideration of whether his or her disabilities establish 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). However, in this case the Veteran has already been granted SMC under 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350(i) from the date of the intent to file to his date of passing. As the Veteran is already rated as totally disabled before his passing, and for the entire period on appeal, and is not entitled to any additional benefits, the appeal of the claim for TDIU is moot. Accordingly, the issue of entitlement to TDIU is dismissed. REASONS FOR REMAND 1. Entitlement to service connection for a GI bleed (accrued benefits) is remanded. Although further delay is regrettable, a remand is necessary for an adequate opinion. When an opinion does not express the right degree of certainty, does not provide a rationale, is conclusory, does not consider all of the relevant evidence of record including lay statements, or does not consider all raised theories of entitlement then the examination is inadequate. Steff v. Nicholson, 21 Vet. App. 120 (2007); Bloom v. West, 12 Vet. App. 185, 187 (1999); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Combee v. Brown, 34 F.3rd1039, 1043-44 (Fed. Cir. 1994). The Appellant has claimed that the Veteran's GI bleed was secondary to his service-connected large b-cell Burkitt's lymphoma. In particular, GI bleeds are a well-known, associated complication with chemotherapy. While the examiner provided a direct service connection opinion, no secondary opinion was obtained. Moreover, the examiner did not address whether the Veteran's service-connected large b-cell Burkitt's lymphoma caused or aggravated the Veteran's ulcers, or GI bleed, including any treatment that the Veteran had for b-cell Burkitt's lymphoma. The matters are REMANDED for the following action: 1. Update all VA treatment records 2. After the above development is complete, obtain a medical opinion from an appropriate clinician to determine the nature and etiology of the Veteran's GI bleed or ulcer condition. The entire claims file must be reviewed, including a copy of this remand. The examiner must address the following questions: (a.) Is it at least approximately as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's GI bleed, or ulcer condition, before his passing, was caused by his large b-cell Burkitt's lymphoma, including treatment for the condition, like chemotherapy, OR; (b.) Is it at least approximately as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's GI bleed, or ulcer condition, before his passing was aggravated by (i.e., worsened beyond the normal progression of the disease) the Veteran's service-connected large b-cell Burkitt's lymphoma, including treatment for the condition, like chemotherapy? In addressing whether the Veteran's service-connected large b-cell Burkitt's lymphoma, including treatment for the condition, like chemotherapy, was a source of aggravation of the Veteran's GI bleed, or ulcer condition, before his passing, the examiner must attempt to establish a baseline level of severity of the condition, discussed in previous records as an ulcer condition, prior to aggravation by the service-connected disability, if any can be determined. Please make sure to discuss the Veteran's treatment for large b-cell Burkitt's lymphoma, including chemotherapy when addressing causation and aggravation above, as a GI bleed is a well-known, associated, complication with chemotherapy. Please note, causation and aggravation are separate concepts and must be addressed independently. (c.) A complete rationale must be provided for all opinions. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should provide an explanation stating why this is so. 3. If any benefit sought on appeal is not granted, the Appellant and her representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is returned to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel, C. Parnell 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.