Citation Nr: 1035058 Decision Date: 09/16/10 Archive Date: 09/21/10 DOCKET NO. 09-41 232 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to a total disability evaluation based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD David Traskey, Associate Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran had active service from September 1950 to August 1952. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of December 2007 by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claim was previously before the Board in January 2010 and remanded at that time for additional evidentiary development, to include obtaining outstanding VA treatment records and affording the Veteran a VA examination. The above development was completed and the Veteran's claim is before the Board for final appellate consideration. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). FINDINGS OF FACT 1. The Veteran is service-connected for chronic bilateral epididymitis with chronic prostatitis (60 percent, effective August 4, 2006) and erectile dysfunction (non-compensable, effective August 4, 2006). The Veteran's combined disability evaluation is 60 percent, effective August 4, 2006. 2. The Veteran's chronic bilateral epididymitis with chronic prostatitis and erectile dysfunction result from a common etiology and are considered a single disability for TDIU eligibility purposes. 3. The Veteran's service-connected disability is not of such severity to preclude him from obtaining or maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a total disability rating based on individual unemployability due to a service-connected disability are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Establishing TDIU The Veteran asserts that he is entitled to a total disability evaluation based on individual unemployability (TDIU). Regulations provide that a total disability rating based on individual unemployability is warranted when the evidence shows that the Veteran is precluded from obtaining or maintaining substantially gainful employment by reason of his service- connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2009). VA defined substantially gainful employment as "employment at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the veteran resides." See M21-MR, Part IV, Subpart ii, Chapter 2(F)(24)(d). Consideration may be given to the Veteran's level of education, special training, and previous work experience when arriving at this conclusion, but factors such as age or impairment caused by non-service-connected disabilities are not to be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2009); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Board notes that marginal employment is not considered to be substantially gainful employment. Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a) (2009). Total disability may or may not be permanent. Permanence of total disability exists when such impairment is reasonably certain to continue throughout the life of the disabled person. Diseases and injuries of long standing which are actually totally incapacitating will be regarded as permanently and totally disabling when the probability of permanent improvement under treatment is remote. 38 C.F.R. § 3.340 (2009). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service- connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2009). As a preliminary matter, the term unemployability is not synonymous with the terms unemployed and unemployable for the purposes of determining entitlement to TDIU. A veteran may be unemployed or unemployable for a variety of reasons, but a determination as to entitlement to TDIU is appropriate only when a veteran's unemployability is the result of a service-connected disability. See M21-MR, Part IV, Subpart ii, Chapter 2(F)(24)(c). The Veteran's service-connected disabilities include chronic bilateral epididymitis with chronic prostatitis (60 percent, effective August 4, 2006) and erectile dysfunction (non- compensable, effective August 4, 2006). The Veteran's combined disability evaluation is 60 percent, effective August 4, 2006. Ordinarily, 38 C.F.R. § 4.16(a) makes clear that if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. However, multiple disabilities resulting from a common etiology or single accident are considered a single disability for determining TDIU eligibility. In this case, the Board finds that the Veteran's chronic bilateral epididymitis with chronic prostatitis and erectile dysfunction result from a common etiology and therefore, are a single disability for the purpose of determining TDIU eligibility. See 38 C.F.R. § 4.16(a); January 2007 rating decision. Thus, the Veteran meets the minimum criteria for consideration of TDIU. See 38 C.F.R. § 4.16(a). For the reasons discussed below, however, the Board finds that the preponderance of the evidence is against a finding of TDIU in this case. II. Factual Background and Analysis J Busby, M.D., provided an August 2005 statement in which it was indicated that the Veteran was treated with multiple modalities, to include a TUMT. Even after the TUMT, his prostatitis as well as the voiding symptoms worsened such that a vaporization of the prostate was accomplished in July 2005. When seen in August 2005, there was microhematuria which was to be expected however the voiding symptoms were much improved. He complained only of occasional dysuria and nocturia times two to three, which appeared to be becoming less. It was considered significant that the Veteran on bladder scan that day had demonstrated no residual urine. In October 2005, the Veteran underwent prostate surgery for prostate cancer. In a June 2006 rating decision, the RO denied service connection for prostate cancer, status post transurethral resection of the prostate. The Veteran was afforded a VA Compensation and Pension (C&P) genitourinary examination in October 2006. The examiner noted that the Veteran had active service from September 1950 to August 1952 after which time the Veteran worked in a paper mill for 16 years as well as a molder at a paper company for many years. The Veteran retired at age 63. The Veteran reported voiding every one to two hours, along with symptoms of hesitancy, decreased stream force, and occasional burning. The Veteran also reported problems with pre and post- voiding incontinence. He used five to six absorbent pads per day, but denied problems with lethargy, weakness, or anorexia. The Veteran's past medical history was also significant for recurrent urinary tract infections, chronic prostatitis, epididymitis, urethral stricture, and prostate cancer. The Veteran was hospitalized three times in the last 12 months for urinary tract disease which required surgical intervention. He also underwent dilation every two to three months for urethral stricture. A side effect of his medication was dizziness. The Veteran denied being employed at the time of the examination and stated that he no longer did yardwork or home repairs. The Veteran reported increased pain with activities of daily living (ADLs). The examiner conducted a physical examination and diagnosed the Veteran as having chronic epididymitis and prostatitis. According to the examiner, the Veteran also had functional impairment and residuals, including urinary incontinence, chronic pain, and erectile dysfunction. In January 2007, a VA medical opinion was provided that it was likely that the erectile dysfunction and urinary incontinence were secondary to the chronic prostatitis. In the TDIU claim form, the Veteran reported that he worked full- time in maintenance until 1992. He stated that he did not leave his job due to disability, did not expect to receive disability retirement benefits, or workers compensation benefits, nor had he tried to obtain employment since he became too disabled to work. His educational background consisted of three years of high school and he had not pursued any education or training since he became too disabled to work. The Veteran presented to a VA medical facility in July 2007 for a follow-up appointment related to his chronic prostatitis and epididymitis. The examiner noted that the Veteran's past medical history was significant for prostate cancer and urinary obstructive problems (which required dilation approximately every three months). The Veteran also expressed the opinion that his prostatitis caused intense, daily back pain. The Veteran further indicated concern that the back pain caused by his prostate problems kept him from gainful employment because it interfered with his concentration and ability to perform manual labor activities. Certain activities such as lifting increased urinary frequency and incontinence, according to the Veteran. It was noted that there was no reasonable employment that he could undertake in the economy. Following a physical examination, the impression was prostate cancer; chronic prostatitis with chronic urinary urgency, incontinence, and frequency, among other conditions. The Veteran was also afforded a VA general medical examination (GME) in November 2007. The examiner noted that the Veteran's past medical history was significant for prostate cancer and degenerative joint disease (DJD), among other conditions. The Veteran was noted to have an eleventh grade education. He worked at International Paper following discharge from service and retired at age 63. The Veteran reported subjective complaints of erectile dysfunction, stress incontinence, and frequent urination. The Veteran denied being hospitalized in the past year, but stated that he was diagnosed with prostate cancer (for which he underwent no treatment). The examiner also noted that the Veteran required dilation approximately every three months for urinary stricture. The examiner indicated that this condition did not affect his usual occupation, but did affect daily activities in that the Veteran had to change absorbent pads two to three times per day. Following a physical examination, the examiner diagnosed the Veteran as having prostate cancer, urethral stricture requiring dilation every three months, and stress incontinence requiring an incontinence pad (changed two to three times daily). The Veteran was also diagnosed as having spondylosis of the lumbar spine with decreased range of motion, DJD of the knees, and chronic obstructive pulmonary disease (COPD). The examiner opined that the Veteran's prostate cancer, urinary condition, urethral stricture, and stress incontinence prevented the Veteran from "heavy duty" employment. However, these genitourinary conditions did not preclude the Veteran from being gainfully employed in light duty work. The examiner further stated that only the combined effects of the Veteran's non-service-connected disabilities, including spondylosis, DJD of the knees, and COPD, prevented substantially gainful employment in either light or heavy duty work. Also associated with the claims file is a statement dated December 2007 from the North Louisiana Orthopedic and Sports Medicine Clinic. The author of the note indicated that the Veteran was "unable to work due to service connected ailments - prostatitis and DJD - knees." A January 2008 VA medical record indicates that the Veteran reported that he continued to have problems with stress urinary incontinence and that it was keeping him from employment. He reported that he could not hold a job even with light duty because he would have incontinence just from bending over and picking something up. The Veteran submitted a copy of the medical record and related that the physician "states that these conditions render me unable to maintain any kind of gainful employment." The Board finds however that it is clear from the statement that the examiner was merely reporting what the Veteran related to him and that the physician expressed no opinion as to whether the Veteran could or could not obtain or maintain substantially gainful employment. M. Cage, M.D. indicated in February 2010 that the Veteran continued to receive treatment for prostate cancer, epididymitis, and loss of urinary control. That same month, C. Elliott, M.D. submitted a statement in support of the Veteran's current claim. Specifically, Dr. Elliott noted that the Veteran, at the age of 81, had benign prostatic hypertrophy (BPH) for a number of years, nocturia (three to six times per night), transurethral resection of the prostate (times two), and an incapacity to hold urine. As such, Dr. Elliott noted that the Veteran had to wear an absorbent pad continually as a result of urine leakage. This leakage occurred "continuously" with bending, straining, or lifting. Dr. Elliott also expressed his opinion that the Veteran was disabled as a result of these conditions and unable to do any gainful employment because of urine leakage and the resultant smell. The Veteran was afforded another VA C&P genitourinary examination in March 2010. The examiner reviewed the claims file and noted that the Veteran's past medical history was significant for chronic prostatitis (since 1952) as well as prostate cancer (since 2005). The Veteran had an eleventh grade education and following discharge from service, he worked for International Paper Company and a lumber company. Thereafter, he worked part- time for five years "making molding." He also stated that he was able to complete his career without his chronic genitourinary conditions resulting in any restrictions. The examiner noted that there was no evidence that the Veteran had to quit his job at any time because of these conditions. The Veteran reported subjective symptoms of frequent urination (approximately every two hours), decreased urinary stream, dysuria, hesitancy, urgency, occasional incontinence, constipation, erectile dysfunction, and back pain. According to the Veteran, he "sometimes" had incontinence for which he used absorbent materials (i.e., a paper towel). The Veteran admitted to having some urinary control, but stated that he had "accidents" consisting of loss of urine or urine leakage when lifting, sneezing, or coughing. The Veteran changed the absorbent materials three times per day. He took prescribed medications for these symptoms with little relief. The Veteran was also noted to have prostate cancer and shingles for which he was prescribed Finasteride and Gabapentin, respectively. The Veteran acknowledged having dilations every three to six months, but denied any self intermittent catheterization. The examiner, however, observed that the Veteran's last dilation was "remote" to the examination by "several years." A physical examination of the Veteran's genitalia was essentially normal. The examiner noted that the Veteran had a small reducible left inguinal hernia with cough. The examiner noted that the Veteran had a dry paper towel in his pants at the time of the examination. The paper towel remained dry after coughing on hernia testing. No smell of urine was noted. A whole body scan was negative for any evidence of metastatic bone disease. There were, however, significant degenerative changes, likely osteoporotic compression fractures, and posttraumatic images of the right midfoot. The Veteran was diagnosed as having chronic bilateral epididymitis, appearing to be in remission; chronic prostatitis with residual lower urinary tract symptoms of: frequency of urination, nocturia (four to five times), weak urinary stream, hesitancy, urgency, and use of absorbent materials (three times daily); urethral stricture disease, post dilation (every three to six months); adenocarcinoma of the prostate (residual is erectile dysfunction); and non-service- connected lumbar spondylosis. The examiner further noted that the Veteran's chronic back pain was unrelated to his prostate problems. In particular, the examiner found no evidence of metastatic bone disease. Instead, the examiner attributed the Veteran's back pain to his non- service-connected lumbar spondylosis. Notably, the examiner found that the lumbar spondylosis was aggravated by the Veteran's constipation. With regard to the Veteran's employability, the examiner stated: The Veteran's service-connected chronic bilateral epididymitis does not make him unemployable for a sedentary or manual labor job. The Veteran can work either with this condition as it is in remission by history obtained at this examination and by the evidence available for the examiner to review. Regarding his chronic prostatitis with residual lower urinary tract symptoms and the requirement of utilizing three Viva paper towels per day, the examiner will report that the Veteran can work a manual labor and desk job with this diagnosis. The Veteran, however, should have weight management and restrictions since he has stress urinary incontinence and with lifting reported symptoms of 'leaking urine.' Therefore, the Veteran's weight management should be restricted to less than 10 pounds on a manual labor or desk job. In reaching these conclusions, the examiner also reviewed opinions regarding dated July 2007 and February 2010 submitted by the Veteran in support of the current claim. The examiner, however, disagreed with these opinions. Specifically, the examiner noted that neither of the opinions appeared to have been based upon factual evidence obtained from examination or a review of the claims file. Given the evidence of record, the Board concludes that the preponderance of the evidence is against a finding of TDIU in this case. Here, the central inquiry is whether the Veteran's service-connected genitourinary disability alone is of sufficient severity to preclude him from obtaining and maintaining substantially gainful employment. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In this regard, the Board notes that there are competing opinions about whether the Veteran is precluded from obtaining or maintaining substantially gainful employment by reason of his service-connected disability. In evaluating the probative value of competent medical evidence, the United States Court of Veterans Appeals for Veterans Claims (Court) has stated, in pertinent part: The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicator . . . . Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). A physician's access to the claims file and the thoroughness and detail of the opinion are important factors in assessing the probative value of a medical opinion. Prejean v. West, 13 Vet. 444, 448-499 (2000). However, the Court in the past has declined to adopt the "treating physician rule," which would give the opinion of a treating physician greater weight in claims made by the Veteran. See Guerrieri, 4 Vet. App. at 471-72; Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). On one hand, the Veteran indicated in July 2007 that his back pain caused by his prostate problems kept him from gainful employment because it interfered with his concentration and ability to perform manual labor activities. Certain activities such as lifting and bending over increased urinary frequency and incontinence, according to the Veteran. It was also noted, although it is not entirely clear if it was stated by the Veteran or the physician, that under these conditions, there was no reasonable employment that he could undertake in the economy. Similarly, a private opinion dated December 2007 indicated that the Veteran was "unable to work due to service connected ailments - prostatitis and DJD - knees." Dr. Elliott further stated in February 2010 that the Veteran was disabled as a result of his genitourinary conditions and unable to do any gainful employment because of urine leakage and the resultant smell. On the contrary, the November 2007 VA GME examiner opined that the Veteran's prostate cancer, urinary condition, urethral stricture, and stress incontinence prevented the Veteran from "heavy duty" employment. However, these genitourinary conditions did not preclude the Veteran from being gainfully employed in light duty work. Rather, only the combined effects of the Veteran's non-service-connected disabilities, including spondylosis, DJD, and COPD, prevented substantially gainful employment in either light or heavy duty work. The Board remanded the claim for additional development and examination as it was not clear whether the July 2007 examiner thought the back pain was associated with the service-connected disability and because the VA examiner in November 2007 reported that he changed his pads two to three times each day as opposed to the five to six times he reportedly changed pads in 2006. Interestingly, the Veteran reported during the March 2010 VA examination that he changed paper towels only three times a day, which the Board notes does not meet the criteria for the currently assigned 60 percent evaluation. The Board finds the March 2010 VA examination report to be adequate and highly probative evidence regarding the issue on appeal. The examiner conducted a physical examination, considered the medical history and provided an opinion that was supported by a detailed rationale. The March 2010 VA C&P examiner determined that neither the Veteran's service-connected chronic bilateral epididymitis nor the chronic prostatitis prevented him from performing manual labor or a desk job. However, the examiner advocated weight management restrictions of less than ten pounds in light of the Veteran's stress incontinence. The Board requested that examination, in part, due to the information provided by the Veteran during the 2007 examination that he only changed appliances two to three times per day, which was inconsistent with information previously provided. However, as he provided consistent information concerning the number of times pads had to be changed to the 2010 examiner, the Board finds that the November 2007 examination is also probative in this case. It too was adequate as it was based on a review of the medical history, a physical examination and as an opinion with rationale was provided. Unlike the July 2007, December 2007, and February 2010 opinions, the November 2007 and March 2010 VA examiners provided a complete rationale to explain the conclusion that the Veteran was able to perform some form of manual or sedentary labor (with weight management restrictions). Moreover, the March 2010 VA examiner specifically refuted the July 2007 and February 2010 opinions on the grounds that neither of the opinions appeared to have been based upon factual evidence obtained from examination or a review of the claims file. The Board also notes that the December 2007 private examiner failed to provide a rationale for the opinion stated regarding the Veteran's unemployability and misidentified the Veteran's service-connected disabilities. In contrast, the March 2010 review also afforded the examiner the opportunity to obtain information about the Veteran's past medical, occupational, and/or educational histories. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (finding that when relevant, "the examiner must consider the records of prior medical examinations and treatment in order to assure a fully informed examination"). Additionally, it appears that Dr. Elliott misstated the severity of the Veteran's service-connected disability based on the evidence of record. For instance, Dr. Elliott indicated in February 2010 that (1) the Veteran had incapacity to hold urine; (2) that the Veteran wore an absorbent pad continually as a result of urine leakage; and (3) the Veteran's leakage occurred "continuously" with bending, straining, or lifting. However, the evidence of record is completely devoid for any indication that the Veteran had incapacity to hold urine. Instead, the Veteran specifically stated in March 2010 that he had occasional incontinence. He also admitted to having some urinary control, but stated that he had "accidents" consisting of loss of urine or urine leakage when lifting, sneezing, or coughing. Furthermore, there is no indication of record that he experienced continuous leakage with bending, straining, or lifting. In this regard, the Veteran stated that he changed his absorbent materials three times daily. The Board acknowledges that the Veteran had "accidents" consisting of loss of urine or urine leakage when lifting, sneezing, or coughing. Again, however, there is no evidence of record to show that the Veteran's urine loss in these situations was continuous, particularly where, as here, he (1) admitted to having some urinary control and (2) experienced no urine leakage in March 2010 with coughing on hernia testing. For the foregoing reasons, the Board finds that the March 2010 opinion is entitled to greater probative weight. The Veteran also expressed his own opinion that he was unable to obtain or maintain substantially gainful employment as a result of his service-connected disability. The Court has in the past held that lay testimony is competent regarding features or symptoms of injury or disease when the features or symptoms are within the personal knowledge and observations of the witness. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); see also, Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d. 1313, 1315 (Fed. Cir. 2009). Here, the Board finds however that the more probative medical evidence shows that the Veteran is not unable to obtain or maintain substantially gainful employment solely due to service- connected disability and this evidence outweighs the Veteran's lay testimony. In that regard, it is also noted that the Veteran indicated that inability to obtain or retain substantially gainful employment was in part predicated on back pain which he attributed to the service-connected disability. Although he is competent to state that he has back pain, he is not competent to provide an etiological opinion for the symptom. In this case, the probative March 2010 medical opinion indicates that his back pain is due to an orthopedic disability and not his service- connected disability. The Board also observes that the Veteran was service-connected for this disability since discharge from service and that he stated in March 2010 that he was largely able to complete his career without his chronic genitourinary conditions resulting in any restrictions. In sum, the lay statements of record are outweighed by the November 2007 and March 2010 VA medical opinions as the opinions were based on a physical examination and interview of the Veteran, a review of the medical history, and included a rationale for the opinion. The Board notes that the Veteran has an eleventh grade education. He worked following discharge from service for two companies for many years. Thereafter, he worked part-time for five years "making molding" before he retired at the age of 63. The Veteran also stated that he was able to complete his career without his chronic genitourinary conditions resulting in any restrictions. There was no evidence that the Veteran had to quit his job at any time because of his service-connected genitourinary condition. Since his retirement, there is no evidence of record to show that the Veteran attempted to obtain employment, that he was denied employment as a result of his service-connected disability, that he attempted to learn new skills, or that he sought vocational and educational rehabilitation training. The Board notes that the Veteran's representative takes issue with the fact that the Veteran has been found to be able to perform both manual labor and light duty work (with some weight management restrictions). See August 2010 informal hearing presentation. In particular, the Veteran's representative argues that most manual labor jobs available require lifting of more than ten pounds. The representative also notes that there was no indication that the Veteran had the education or experience to perform desk work. The Board finds these arguments unavailing. First, even if "most" manual labor jobs require lifting of more than ten pounds as the representative suggests, the March 2010 examiner nevertheless made clear that the Veteran was capable of employment based on some kind of manual labor provided certain weight restrictions were satisfied. The Board also finds implausible the argument that all manual labor jobs require lifting of more than ten pounds. To the extent that the representative questions the Veteran's ability to perform sedentary or desk work, the Board notes that the representative cites no evidence to support this conclusion. The Board also observes that the Veteran has an eleventh grade education and aside from the representative's own, unsupported assertions, there is no evidence of record to suggest that he would be incapable of performing light manual labor or sedentary employment solely because of his service-connected disability, education level, and/or previous work experiences. As such, the Board finds that TDIU is not warranted in this case and the Veteran's claim is denied. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). On March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The VCAA duty to notify was satisfied by way of a letter sent to the Veteran in March 2007 that fully addressed the notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the Veteran of what evidence was required to substantiate the TDIU claim and of the Veteran's and VA's respective duties for obtaining evidence. The Veteran was also provided with notice of the information and evidence necessary to establish a disability rating and an effective date for TDIU. The Board also finds that all of the relevant facts have been properly developed, and that all available evidence necessary for an equitable resolution of the issue has been obtained. The Veteran's service treatment and post-service treatment records have been obtained. The Veteran was also afforded VA examinations in connection with the current claim. Accordingly, the Board finds that VA has complied, to the extent required, with the duty-to-assist requirements found at 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c)-(e). ORDER Entitlement to a total disability rating based on individual unemployability based on service-connected disability is denied. ____________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs