Bradley v Peak made it is possible to be rated 100% and still get awarded TDIU.... Bradley v Peak held that the VA has an obligation to maximize ratings so the the veteran can receive the highest compensation possible.
The Court also held that a TDIU rating based on a single disability may satisfy the statutory requirement for a total rating for entitlement to SMC at the (s) rate. It found that the phrase “a service-connected disability rated as total” contains no restriction to a total schedular rating and no exclusion of other total ratings, such as TDIU. The Court noted that restrictive language precluding a TDIU evaluation from satisfying the “total” requirement of section 1114(s) was dropped from the implementing regulation, 38 C.F.R. § 3.350(i), in 1995 following a General Counsel opinion that held that section 1114(s) did not authorize such a restriction.
In considering the circumstances of the veteran’s case, the Court indicated that a TDIU rating for PTSD alone would entitle the veteran to SMC benefits. Thus, VA should have assessed whether the TDIU rating was warranted on the basis of PTSD alone before substituting a combined total rating for his TDIU rating, as a finding that the veteran’s PTSD is sufficient, on its own, to warrant a TDIU rating, would mean that the veteran is also entitled to SMC. The Court vacated and remanded the issue for the Board to consider whether the veteran is entitled to a total rating based upon PTSD alone to determine if entitlement to SMC at the (s) rate is in order.
So requesting a TDIU rating when a veteran has a 100% rating is not automatically moot.