Citation Nr: 23027073 Decision Date: 05/07/23 Archive Date: 05/07/23 DOCKET NO. 17-57 870 DATE: May 7, 2023 ORDER Entitlement to a total disability evaluation based on individual unemployability (TDIU) is dismissed. FINDING OF FACT As of April 7, 2015, the Veteran has a 100 percent evaluation for a single service-connected disability and receives special monthly compensation (SMC); there is no probative evidence of record within one year prior to April 7, 2015, showing a factually ascertainable increase in disability that rendered the Veteran unable to secure or follow substantially gainful employment. CONCLUSION OF LAW Entitlement to a TDIU is dismissed as moot. 38 U.S.C. §§ 1114(s), 1155; 38 C.F.R. § 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1988 to April 1998. The Board recognizes the Veteran's service to his country and the sacrifices it entailed. In a February 2023 decision, the Board found the matter of a TDIU was reasonably raised by the evidence of record. The Board remanded this matter to effectuate the Board's other findings, to include granting service connection for paranoid schizophrenia. A March 2023 rating decision, in pertinent part, assigned a 100 percent evaluation for paranoid schizophrenia and granted SMC, both effective April 7, 2015. As a preliminary matter, the Board notes the Veteran's attorney stated, in a March 2023 letter, he was withdrawing from the case. While the attorney stated the Veteran was notified of the withdrawal, the attorney did not provide any reason for the withdrawal. A representative may withdraw services in a legacy appeal at any time before certification of the appeal to the Board, but may not withdraw services after certification unless good cause is shown. 38 C.F.R. § 20.6. The Board received the Veteran's appeal in December 2018. Because the attorney has not provided good cause to withdraw services, the Board concludes the attorney is still the representative in this matter. A TDIU in essence is a claim for an increased evaluation. Norris v. West, 12 Vet. App. 413, 420 (1999). A TDIU may be granted when a veteran is unable to secure or follow a substantially gainful occupation due to impairment resulting from service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. The effective date of a TDIU is no earlier than the date of receipt of the claim unless there is a factually ascertainable increase in disability that rendered the Veteran unable to secure or follow substantially gainful employment within one year prior to receipt of the claim. 38 C.F.R. § 3.400(o)(2). In other words, when a Veteran files a claim for increased evaluation, they are afforded a lookback period of one year, but only one year. In a TDIU context, if the evidence shows the Veteran became unable to secure or follow substantially gainful employment either before or after the one-year lookback period, the effective date of entitlement is the date of the receipt of the claim. Gaston v. Shinseki, 605 F.3d 979, 983 (2010). The Board finds a TDIU is moot as of April 7, 2015, the date of receipt of the claim on appeal. As of this date, the Veteran is totally disabled without TDIU-specifically, he has a 100 percent evaluation for a single service-connected disability and additional disability ratable at 60 percent, and a100 percent evaluation means a veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994). A 100 percent evaluation, however, does not always render the issue of a TDIU moot because a totally disabled veteran could qualify for SMC based on a TDIU for another service-connected disability. Bradley v. Peake, 22 Vet. App. 280, 294 (2008). This appeal is distinguishable from Bradley because the Veteran already has been awarded SMC. Consideration of a TDIU since April 7, 2015, in this appeal would thus result in no additional compensation. Accordingly, there is no question or controversy regarding entitlement of a TDIU since April 7, 2015. The Board further finds there is no probative evidence of record showing an increase in disability that rendered the Veteran unable to secure or follow substantially gainful employment became factually ascertainable during the one-year lookback period prior to the April 7, 2015, claim. Rather, the evidence of record, to include a favorable Social Security Administration determination, shows the Veteran was unable to secure or follow substantially gainful employment before the lookback period. Gaston, 605 F.3d at 983. In sum, a TDIU is moot as of April 7, 2015, and there is no probative evidence of record showing an increase in disability that rendered the Veteran unable to secure or follow substantially gainful employment initially became factually ascertainable within one year prior to April 7, 2015, claim. Accordingly, the Board dismisses the matter of a TDIU. Timothy Cothrel Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Ormson 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.