Citation Nr: 0810060	
Decision Date: 03/26/08    Archive Date: 04/09/08

DOCKET NO.  99-15 032	)	DATE
	)
	)


On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, 
Ohio



THE ISSUE

Entitlement to a total rating based on individual 
employability due to service-connected disability (TDIU).



REPRESENTATION

Appellant represented by:	The American Legion



ATTORNEY FOR THE BOARD

Van Stewart, Counsel




INTRODUCTION

The veteran had active military service from January 1948 to 
February 1950, and from August 1950 to July 1951. 

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal of December 1998 and November 1999 rating 
decisions by the Department of Veterans Affairs (VA) Regional 
Office (RO) in Cleveland, Ohio.  

This case has been advanced on the Board's docket.  38 
U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) 
(2007).

The Board notes that the veteran initially requested a 
hearing in connection with this claim, but withdrew the 
request in written correspondence dated in September 2002.  
See 38 C.F.R. § 20.704(d) (2007).

This issue was remanded by the Board in an action dated in 
April 2007 in order to provide the veteran with a VA medical 
examination seeking a medical opinion as to whether he is 
unable to secure or follow a substantially gainful occupation 
solely as a result of his service-connected disabilities, and 
to have the agency of original jurisdiction (AOJ) 
readjudicate the claim in light of ratings increases 
previously awarded.  


FINDINGS OF FACT

1.  The veteran is service connected for six disabilities, 
two of which are rated as 40 percent disabling; the 
disabilities have been combined by the AOJ to a 90 percent 
disability rating.  

2.  The veteran's service-connected disabilities do not 
combine to preclude substantially gainful employment.  


CONCLUSION OF LAW

The criteria for an award of TDIU have been not been met.  38 
U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 
(2007).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA) describes 
VA's duty to notify and assist claimants in substantiating a 
claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 
5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007).  

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his representative 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).  The VCAA 
notice must inform the claimant of any information and 
evidence not of record (1) that is necessary to substantiate 
the claim; (2) that VA will seek to provide; (3) that the 
claimant is expected to provide; and (4) must ask the 
claimant to provide any evidence in his possession that 
pertains to the claim in accordance with 38 C.F.R. 
§ 3.159(b)(1).  VCAA notice should be provided to a claimant 
before the initial unfavorable agency of original 
jurisdiction (AOJ) decision on a claim.  Pelegrini v. 
Principi, 18 Vet. App. 112 (2004).  But see Mayfield v. 
Nicholson, 19 Vet. App. 103, 128 (2005), rev'd on other 
grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 
2006) (when VCAA notice follows the initial unfavorable AOJ 
decision, remand and subsequent RO actions may "essentially 
cure[] the error in the timing of notice").

The Board notes that the veteran was apprised of VA's duties 
to both notify and assist in correspondence dated in February 
and March 2004, and February 2005.  (Although the complete 
notice required by the VCAA was not provided until after the 
RO adjudicated the appellant's claims, any timing errors have 
been cured by the RO's subsequent actions.  Id.)

Specifically regarding VA's duty to notify, the notifications 
to the veteran apprised him of what the evidence must show to 
establish entitlement to award of TDIU, what evidence and/or 
information was already in the RO's possession, what 
additional evidence and/or information was needed from the 
veteran, what evidence VA was responsible for getting, and 
what information VA would assist in obtaining on the 
veteran's behalf.  The RO specifically requested that the 
veteran submit any evidence he had pertaining to his claim.  
Though not necessarily relevant to a TDIU claim, the veteran 
was apprised of the criteria for assigning disability ratings 
and for award of an effective date.  See Dingess/Hartman v. 
Nicholson, 19 Vet. App. 473 (2006).  The RO also provided a 
statement of the case (SOC) and two supplemental statements 
of the case (SSOCs) reporting the results of its reviews of 
issues on appeal and the text of the relevant portions of the 
VA regulations.  Regarding VA's duty to assist, the RO 
obtained the veteran's service medical records (SMRs), and VA 
and private medical records, and secured examinations in 
furtherance of his claim.  VA has no duty to inform or assist 
that was unmet.  

Total disability is considered to exist when there is any 
impairment that is sufficient to render it impossible for the 
average person to follow a substantially gainful occupation.  
38 C.F.R. § 3.340(a)(1) (2007).  Total ratings are authorized 
for any disability or combination of disabilities for which 
the VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4, 
prescribes a 100 percent evaluation.  38 C.F.R. 
§ 3.340(a)(2).

The law also provides that a total disability rating based on 
individual unemployability due to service-connected 
disability may be assigned where the veteran is rated at 60 
percent or more for a single service-connected disability, or 
rated at 70 percent for two or more service-connected 
disabilities and at least one disability is rated at least at 
40 percent, and when the disabled person is unable to secure 
or follow a substantially gainful occupation as a result of 
the service-connected disability.  38 C.F.R. §§ 3.340, 3.341, 
4.16(a).  Marginal employment shall not be considered 
substantially gainful employment.  38 C.F.R. § 4.16(a).  
Factors to be considered are the veteran's education and 
employment history and loss of work-related functions due to 
pain.  Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 
(1991).  Individual unemployability must be determined 
without regard to any non-service-connected disabilities or 
the veteran's advancing age.  38 C.F.R. § 3.341(a); see 
38 C.F.R. § 4.19 (2007) (age may not be a factor in 
evaluating service-connected disability or unemployability); 
Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

Here, the veteran, an unemployed 79-year-old truck driver, is 
currently service-connected for left and right foot 
peripheral neuropathy, each rated as 40 percent disabling; 
for bilateral frostbite of the feet, each rated as 30 percent 
disabling; a nontender scar, rated as 10 percent disabling; 
and for varicose veins of the right leg, rated as non-
compensably (zero percent) disabling.  The veteran's service-
connected disabilities have been combined by the AOJ to a 90 
percent disability rating.  Thus, the veteran meets the 
requirement for being rated at 70 percent or more for two or 
more service-connected disabilities, with at least one 
disability rated at least at 40 percent.  

However, as noted, in addition to the mathematical 
calculation that permits award of TDIU in accordance with 
38 C.F.R. § 4.16, total disability cannot be considered to 
exist unless there is also service-connected impairment that 
is sufficient to render it impossible for the average person 
to follow a substantially gainful occupation.  38 C.F.R. § 
3.340(a)(1).  The fact that a veteran may be unemployed or 
has difficulty obtaining employment is not determinative.  
The ultimate question is whether the veteran, because of 
service-connected disability(ies), is incapable of performing 
the physical and mental acts required by employment, not 
whether he can find employment.  Van Hoose, supra.  Moreover, 
as already noted, an inability to work due to non-service-
connected disabilities or age may not be considered.  
38 C.F.R. §§ 4.14, 4.19.  In making its determination, VA 
considers such factors as the extent of the service-connected 
disabilities, and employment and educational background.  
38 C.F.R. §§ 3.321(b), 3.340, 3.341, 4.16(b), 4.19.  

As noted, on remand the veteran was afforded a VA medical 
examination to determine the extent of his disabilities, and 
to obtain a medical opinion as to whether the veteran, 
because of service-connected disabilities only-without 
taking into account non-service-connected disabilities or 
age-is incapable of performing the physical and mental acts 
required by employment.  

The examination, conducted in May 2007, recounted the 
veteran's current service-connected and non-service-connected 
disabilities.  In addition to the service-connected 
disabilities listed previously, the examiner noted that the 
veteran was determined to be suffering from dementia based on 
a neuropsychological examination given in July 2001.  The 
examiner noted that the veteran's service-connected 
peripheral neuropathy of the lower extremities caused pain 
and decreased ability to ambulate safely.  The examiner noted 
that the veteran had recently suffered a fall with injury to 
the right foot.  Prior to that, he had been using a cane.  He 
related that he receives assistance from grandchildren and a 
daughter-in-law in accomplishing many of the daily tasks such 
as housekeeping, laundry, and meal preparation.  

On examination, the examiner found that muscle tone was 
normal in all four extremities, and strength was 5/5 
throughout.  There was no muscle atrophy or fasciculations 
noted.  The veteran was wearing a brace on his right foot 
which he stated was related to he recent fall.  Sensory 
examination showed reduced discrimination of the pinprick 
sensation below the knees to the feet, and reduced vibration 
sensation over the shins and ankles.  The veteran would not 
attempt gait evaluation because of the non-weight bearing 
status resulting from his recent injury.  Reflexes were 2+ at 
the knees bilaterally and 2+ at the ankles.  Plantar reflexes 
were normal.  Sensory examination in the hands and upper 
extremities was normal.  

In response to the Board's specific question, the examiner 
opined that the veteran should not be unemployable based 
solely on his enumerated service-connected disabilities.  In 
support of this conclusion the examiner noted that the 
veteran can get a job where he does not have to be standing 
for long periods of time or lifting heavy weight, which 
activities would be hindered by his peripheral neuropathy.  

Taking into account all of the evidence of record, and 
relying on the medical opinion of the May 2007 VA examiner 
that the veteran should not be considered unemployable based 
solely on his service-connected disabilities, the Board finds 
that the evidence does not warrant award of TDIU.  While the 
veteran does meet the requirement that he be rated at 70 
percent for two or more service-connected disabilities with 
at least one disability rated at least at 40 percent, the 
evidence does not demonstrate that he is unable to secure or 
follow a substantially gainful occupation solely as a result 
of service-connected disability.  38 C.F.R. §§ 3.340, 3.341, 
4.16(a).  

The Board does not doubt that the veteran's service-connected 
disabilities may preclude continued employment in his chosen 
field as a truck driver.  However, as noted, the ultimate 
question is whether the veteran, because of service-connected 
disability(ies), is incapable of performing the physical and 
mental acts required by employment, not whether he can find 
employment, not because he is incapable of performing the 
tasks of his chosen career, and not because of his age.  

The Board has considered the benefit-of-the-doubt doctrine, 
but finds that the record does not provide even an 
approximate balance of negative and positive evidence on the 
merits.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. 
Derwinski, 1 Vet. App. 49 (1990).  Therefore, on the basis of 
the above analysis, and after consideration of all the 
evidence, the Board finds that the preponderance of the 
evidence is against this claim.  A total rating based on 
unemployability therefore is not warranted.


ORDER

Entitlement to a total rating based on individual 
employability due to service-connected disability is denied.



________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs