Citation Nr: 0304984 Decision Date: 03/17/03 Archive Date: 03/24/03 DOCKET NO. 98-19 691 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to a total rating for compensation purposes based on individual unemployability due to service connected disorders. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. M. Ivey, Counsel INTRODUCTION The veteran served on active duty from November 1987 to December 1997. This case comes before the Board of Veterans' Appeals (Board) from a September 1998 rating decision of the North Little Rock, Arkansas, Regional Office (RO) of the Department of Veterans Affairs (VA) in which entitlement to a total rating for compensation purposes based on individual unemployability (TDIU) due to service connected disorders was denied. The Board remanded this matter in July 2000. The requested development has been accomplished and the issue has been returned to the Board for further appellate review. In August 2000 the North Little Rock, Arkansas RO transferred the veteran's claims file to the Roanoke, Virginia, RO as the veteran had moved. FINDINGS OF FACT 1. Service connection has been established for diabetes mellitus rated as 60 percent disabling; recurrent genital warts rated as 0 percent disabling; residuals of a nasal fracture, left septial deviation rated as 0 percent disabling; residuals of osteochondromas of the left leg and right shoulder (major) rated as 0 percent disabling; and scars of the right leg, right shoulder, residual removal of osteochondroma and lipoma rated as 0 percent disabling. 2. The veteran has not worked since 1997; he has work experience as a Navy rigger. 3. The veteran's service connected disabilities do not render him unable to obtain and retain substantially gainful employment. CONCLUSION OF LAW The criteria for the award of TDIU benefits are not met. 38 U.S.C.A. §§ 1155, 5103A (West 1991 & Supp. 2002); 38 C.F.R. §§ 3.159, 3.321, 3.340, 3.341, 4.16 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103A (West 2002); 38 C.F.R § 3.159 (2002), eliminates the concept of a well-grounded claim, redefines the obligations of VA with respect to the duty to assist and also includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See Quartuccio v. Principi, 16 Vet. App 183, 187 (2002). The August 2000 RO letter requested that the veteran provide the names addresses, and approximate dates of treatment for all health care providers, VA and non-VA, who may have additional medical records pertinent to his claim. The RO informed the veteran that their office would request the VA Medical Center treatment records. The veteran was requested to sign an enclosed authorization release from so that the RO could request all of his private medical evidence. The veteran did not respond. In April 2001 the RO informed the veteran of the VA's duty to assist him in obtaining evidence for his claim and notified the veteran of what they needed him to do. The July 2002 Supplemental Statement of the Case informed the veteran of the evidence needed to substantiate the claim. VA has no outstanding duty to inform the veteran that any additional information or evidence is needed. 38 U.S.C.A §§ 5102, 5103A (West Supp. 2002); 38 C.F.R § 3.159(b) (2002). The veteran has not referenced any unobtained evidence that might aid the claim or that might be pertinent to the basis of the denial of the claim. See 38 U.S.C.A. § 5103A (West Supp. 2002); 38 C.F.R. § 3.159(c) (2002). The veteran was afforded a VA examination in February 1998 and a QTC examination in September 2001. See 38 U.S.C.A § 5103A (West Supp. 2002); 38 C.F.R. § 3.159(c)(4) (2002). VA has satisfied its duties to notify and to assist the veteran in this case. Further development and further expending of VA's resources is not warranted. The veteran contends, essentially, that his service connected disabilities render him unemployable; that is, that he is unable to obtain and maintain a substantially gainful occupation as a result of his service connected disabilities. Total disability ratings are authorized for any disability, or combination of disabilities, for which the Rating Schedule prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of his disability(ies)- provided that, if there is only one such disability, it shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. In exceptional circumstances, however, where the veteran does not meet the aforementioned percentage requirements, a total rating may be assigned nonetheless-on an extra-schedular basis-upon a showing that he is unable to obtain or retain substantially gainful employment. 38 C.F.R. §§ 3.321(b)(1), 4.16(b). Other factors to be considered in determining whether a veteran is unemployable are his level of education, his employment history, and his vocational attainment. See Hyder v. Derwinski, 1 Vet. App. 221, 223 (1992); Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). However, his advancing age, any impairment caused by conditions that are not service connected, and his prior unemployability status must be disregarded when determining whether he currently is unemployable. 38 C.F.R. § 4.16(a); see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), where the court noted additionally that "[t]he sole fact that a claimant is unemployed is not enough" to warrant a TDIU. Id. The veteran satisfies the scheduler requirements of 38 C.F.R. § 4.16(a); his service connected disabilities, which are diabetes mellitus rated as 60 percent disabling; recurrent genital warts rated as 0 percent disabling; residuals of a nasal fracture, left septial deviation rated as 0 percent disabling; residuals of osteochondromas of the left leg and right shoulder (major) rated as 0 percent disabling; and scars of the right leg, right shoulder, residual removal of osteochondroma and lipoma rated as 0 percent disabling. He has a combined rating of 60 percent, which meets the threshold minimum percentage rating requirements for a TDIU under the provisions of 38 C.F.R. § 4.16(a). In his application for a TDIU (VA Form 21-8940), received in June 1998, the veteran indicated that he had not worked a full-time job since December 1997, (he was still in the Navy). When completing the other portions of his TDIU application, he indicated that he completed high school and had rigging training in the Navy. The Board finds that the award of TDIU benefits is not appropriate in this case. While the veteran's service connected disabilities may preclude him from some areas of employment it is not shown that his disabilities, in and of themselves, are of such severity as to preclude him from obtaining and maintaining substantially gainful employment. The Board notes that the medical evidence does not support the veteran's claim. In August 1997 the Naval Medical Evaluation Board determined that the veteran's prognosis for continued military service was poor and fair for return to civilian life. The diagnoses were type I diabetes, osteochondromatosis and endochondroma. The Medical Board recommended that the veteran be disqualified from further military service. In September 2000 the veteran was found physically unfit by the Department of the Navy Physical Evaluation Board. At the February 2000 examination the veteran's diabetes was under poor control. However, the examiner determined that there was no impairment in the veteran's current physical status with regard to civilian, social and occupational impairment. The September 2001 QTC examiner opined that considering all aspects of the veteran's problems claimed, the veteran was able to work any job suited to his skill level. The veteran stated that his sugars could go from 500 mg at night to 40 mg in the morning. The examiner indicated that because of the wide fluctuations of the blood sugars, that could conceivably be a reason why he may not be employable in certain critical occupations that require a keen focusing ability. His current job was as a rigger at the shipyard. While his sugars were controlled the veteran was able to work at any job commensurate with his skill level, limitations were a permanent condition. The veteran was able to handle most aspects of daily living. The Navy Physical Evaluation Board as well as the QTC examiner found that there was no impairment in the veteran's current physical status with regard to civilian employment. Since the preponderance of the evidence is against his claim the benefit-of-the-doubt rule does not apply. See 38 C.F.R. § 4.3; Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to TDIU benefits is denied. ____________________________________________ C. P. RUSSELL Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.