The opinion
KRAMER, Judge,
concurring:
The dissent would remand “the claim for a [total disability based on individual unem-ployability (TDIU) ] rating for some or all of the period from 1986 to 1989 [claim 6] ... in order for the Board to apply 38 C.F.R. § 4.16 (c)” to determine “whether the evidence of record showed that the appellant’s [post-traumatic stress disorder (PTSD) ] rendered him unemployable” during that period. Simply put, there is no basis upon which to conclude that the Board was clearly erroneous in finding that impairment from 1986 to 1989 attributable only to PTSD did not cause unemployability. See Record (R.) at 32. A VA clinical record, dated in December 1986, references congestive heart failure as the reason for the appellant’s retirement and receipt of Social Security disability benefits. R. at 593. In that report, the examiner, after noting that the appellant was taking fifteen different medications for his heart condition, that he had had two strokes, and that he had continued difficulties due to PTSD, stated that the appellant had been unable to “hold regular employment.” R. at 594. Similarly, the report from a VA examination, dated in June 1989, states that the appellant had severe impairment based upon factors including “multiple physical illnesses” and “aging.” R. at 1174.
Thus, because there is nothing of record to show that PTSD by itself rendered the appellant unemployable during that period, the appellant would not be entitled to relief. Furthermore, because the appellant is seeking a total disability rating for the period between August 1986 and July 1989, the question here is effective date, not present entitlement. Considering that such a claim was filed in July 1989, and was not a claim of clear and unmistakable error, the appellant could not be awarded an earlier effective date. See 38 U.S.C. § 5110 (a) (effective date “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application”). Judge Steinberg dissents from this analysis on two bases. First, he asserts that the appellant may have filed a claim for TDIU in a statement submitted in support of his claim for PTSD. However, a claim for the former could be properly at issue only after, not before, the appellant was service connected for PTSD. In other words, whether or not a TDIU claim is a separate claim or a claim for an increase, as Judge Steinberg suggests in his dissent, it involves only the degree of disability — something not at issue until service connection has *449 been granted. Even assuming, as Judge Steinberg appears to assert, that a TDIU claim is really a claim for an increase, thus indicating the applicability of 38 U.S.C. § 5110 (b)(2), rather than section 5110(a), the language of section 5110(b)(2) may, by its terms, preclude an award of TDIU for the year preceding a July 1989 application because the application must be received within one year from the date of the increase. If such an increase were to date back to the December 1986 VA examination, as suggested by Judge Steinberg, that would be three years prior to the filing of the application in 1989 and, thus, would not meet the requirement of section 5110(b)(2) that the application be received within one year of the increase. Thus, it appears that remand would be an academic exercise. See Sabonis v. Brown, 6 Vet.App. 426, 430 (1994) (where law and not evidence is dispositive, claim should be denied or appeal terminated because of lack of legal merit).
As to claim 7, because it was not the subject of the appellant’s motion for reconsideration or panel review, it should not be addressed. Moreover, the cases cited by the dissent are clearly distinguishable because they do not involve 100% schedular and TDIU ratings for separate conditions.