Citation Nr: 0810753 Decision Date: 04/01/08 Archive Date: 04/14/08 DOCKET NO. 03-01 075 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. Sorisio, Associate Counsel INTRODUCTION The veteran had active service from December 1978 to February 1979. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an April 2002 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Indianapolis, Indiana. In November 2003, the veteran provided testimony before a Member of the Appeals Team at the RO. A transcript of that hearing is of record. The record reflects that the Board received new evidence from the veteran that was associated with the claims folder after the issuance of the October 2007 supplemental statement of the case. As such, the RO has not considered such evidence in compliance with Bernard v. Brown, 4 Vet. App. 384, 394 (1993). However, the Board observes that the record contains a statement by the veteran's representative, dated in March 2008, waiving agency of original jurisdiction (AOJ) consideration of all evidence received after VA's most recent denial of the claim. In light of this waiver, the Board will consider the aforementioned evidence and proceed to adjudicate the claim. FINDINGS OF FACT 1. The veteran's service-connected disabilities are residuals of a low back injury, status post laminectomy (low back disability), rated as 40 percent disabling from October 12, 2000, and 20 percent disabling from September 26, 2003; chronic neurologic disease, left lower extremity associated with low back disability, rated as 20 percent disabling from September 26, 2003; and chronic neurologic disease, right lower extremity associated with low back disability, rated as 10 percent disabling from September 26, 2003; the combined service-connected disability rating is 40 percent from October 12, 2000, and 50 percent from September 26, 2003. 2. There has been no demonstration by competent clinical evidence of record that, at any time during the rating period on appeal, the veteran's service-connected disabilities precluded him from maintaining substantially gainful employment consistent with his education and occupational experience. CONCLUSION OF LAW The criteria for the award of TDIU benefits have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19 (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). Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her 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) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper 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 her or 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 AOJ decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In March 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and/or an effective date will be assigned in the event of award of benefits sought. Because the Court's decision is premised on the five elements of a service connection claim, it is the consensus opinion within VA that the analysis employed can be analogously applied to any matter that involves any one of the five elements of a "service connection" claim, to include an increased rating claim. In the present case, VA issued VCAA notice letters to the veteran dated in October 2001, June 2002, August 2003, February 2005, and July 2006. The letters informed the veteran of what evidence was required to substantiate his claim for TDIU and of his and VA's respective duties for obtaining evidence, as well as requested that the veteran submit any additional evidence in his possession pertaining to the claim. The July 2006 letter also informed the veteran as to the law pertaining to the assignment of a disability rating and effective date as the Court required in Dingess/Hartman. According to Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), for an increased-compensation claim, section 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation, e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. In the case currently before the Board, the VCAA notice did not make specific reference to the relevant diagnostic codes and other applicable information. In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the Federal Circuit stated that all VCAA notice errors are presumed prejudicial and require reversal unless the VA can show that the error did not affect the essential fairness of the adjudication. To do this, the VA must show that the purpose of the notice was not frustrated, such as by demonstrating that any defect was cured by actual knowledge on the part of the claimant, that a reasonable person could be expected to understand from the notice what was needed, that a benefit could not have been awarded as a matter of law, or perhaps where the claimant has stated that he or she has no further evidence to submit, or where the record reflects that VA has obtained all relevant evidence. There must be a demonstration that there was no prejudicial error. See Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). The Court has stated that "[n]othing in law or common sense supports a conclusion that the Court should put on blinders and ignore [the 'extensive administrative appellate process'] or a conclusion that a notice error prior to the initial decision by the Secretary could not be rendered non- prejudicial when the full panoply of administrative appellate procedures established by Congress are provided to the claimant. It is well settled that a remand is not warranted when no benefit would flow to the claimant." See Vazquez- Flores, 22 Vet. App. at 46. In the present case, the claimant demonstrated that there was actual knowledge of what was needed to establish the claim. Actual knowledge is established by statements by the claimant and the claimant's representative, to include sworn testimony and arguments presented at the November 2003 local RO hearing on appeal, that demonstrates an awareness of what was necessary to substantiate the claim. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007); see also Short Bear v. Nicholson, 19 Vet. App. 341, 344 (2005). In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that compliance with 38 U.S.C.A. § 5103 required that VCAA notice be provided prior to an initial unfavorable agency of original jurisdiction decision. Because the VCAA notice in this case was not completed prior to the initial AOJ adjudication denying the claim, the timing of the notice does not comply with the express requirements of the law as found by the Court in Pelegrini. Here, the Board finds that any defect with respect to the timing of the VCAA notice was harmless error. Although the notice was provided to the appellant after the initial adjudication, the claim was readjudicated thereafter, and the appellant has not been prejudiced thereby. The content of the notice fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), and Dingess/Hartman. After the notice was provided, the case was readjudicated and a Supplemental Statement of the Case was provided to the veteran (most recently in October 2007). The veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notices. Therefore, not withstanding Pelegrini, to decide the appeal would not be prejudicial to him. Duty to assist With regard to the duty to assist, the claims file contains the veteran's service medical records and reports of post- service private and VA treatment and examination. Additionally, the claims file contains the veteran's statements in support of his claim, to include testimony at a local RO hearing. The claims file also contains several lay statements submitted on behalf of the veteran. The Board has carefully reviewed the veteran's statements and testimony and concludes that there has been no identification of further available evidence not already of record. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the veteran's claim. The record reflects that the veteran was in receipt of benefits from the Social Security Administration (SSA). (See RO Transcript "Tr." at 7.) The veteran also testified that that SSA discontinued the benefits because his spouse earned too much money. (Id.) The Board notes that the record does not contain the related SSA records. In this regard, the record reflects that the AOJ attempted to obtain the veteran's SSA records. A response from the SSA, dated in February 2004, indicates that the veteran's "folder has been destroyed." In light of this response, the Board finds that further development would serve no useful purpose and would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the veteran in developing the facts pertinent to his claim. Essentially, all available evidence that could substantiate the claim has been obtained. Legal criteria and analysis The Board has thoroughly reviewed all the evidence in the veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The veteran contends that his service-connected disabilities render him unemployable, thus warranting a TDIU. For the reasons that follow, the Board concludes that TDIU is not warranted. 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 a 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 service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). To establish a total disability rating based on individual unemployability, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. In reaching such a determination, the central inquiry is whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation; provided that permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 4.15. The veteran's service-connected disabilities are residuals of a low back injury, status post laminectomy (low back disability), rated as 40 percent disabling from October 12, 2000, and 20 percent disabling from September 26, 2003; chronic neurologic disease, left lower extremity associated with low back disability, rated as 20 percent disabling from September 26, 2003; and chronic neurologic disease, right lower extremity associated with low back disability, rated as 10 percent disabling from September 26, 2003. The combined service-connected disability rating is 40 percent from October 12, 2000, and 50 percent from September 26, 2003. Thus, the veteran does not meet the schedular criteria listed in 38 C.F.R. § 4.16(a) at any time during the rating period on appeal. However, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Rating boards should refer to the Director of the Compensation and Pension Service for extra-schedular consideration all cases of veterans who are unemployable by reason of service- connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). The veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). The rating board did refer this case to the Veterans Benefits Administration (VBA) for extra-schedular consideration under 38 C.F.R. §§ 3.321(b)(1) and 4.16(b). The record contains a letter from a designee for the Director of Compensation and Pension Service, dated in August 2007. After a review of the veteran's claims folder, the letter indicates that "this Service finds that entitlement to an extra-schedular total disability evaluation based on IU [individual unemployability] is not warranted." The decision not to award entitlement to an extra-schedular total disability evaluation based on IU was based on the findings pertaining to the lumbar spine (noting fair ranges of motion and minimal neurological findings on VA examinations in March and August 2006), the severity of the veteran's nonservice- connected disabilities, and the lack of a reliable work history. In this case, the Board finds that the veteran's service- connected disabilities have not been shown to preclude employment consistent with his education and occupational experience. The veteran submitted two VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, dated in September 2001 and in June 2002, respectively. The veteran indicated that he lasted worked as a cook/laborer in approximately the mid-1980s. See also July 2005 Social and Industrial (S&I) survey (indicating that the veteran worked for Amvets prior to and after his military service). On each of the VA Form 21-8940s, the veteran also indicated that he had completed two years of high school. The July 2005 S&I survey indicates that the veteran's educational and training history consists of completing the 8th grade. It was noted that the veteran was not able to obtain his GED. The S&I survey also noted that the veteran volunteers at the American Legion on a daily basis. With regard to the veteran's service-connected neurologic disabilities of left and right lower extremities, the veteran was provided a VA examination in August 2006. The veteran reported back spasms that occur only about three to four times a year that go down his legs that can last anywhere from a few days to a week. The veteran also noted a tingling-type sensation down the back part of his legs that he reported being continual for the last 20 years. Although the veteran had strength testing of 4+/5 in the left lower extremity, all muscles tested at 5/5 in all other extremities. The examination report indicated that bilaterally there was decreased sensation to pinprick in a L4-L5 distribution across the medial lower leg extending into the foot, but the veteran's sensation to light touch was intact. The veteran's reflexes were present and 2+ throughout. Additionally, a December 2006 VA peripheral nerves examination reflects that the above August 2006 VA examination, a September 2006 EMG, and the claims file were reviewed. The VA examiner found that the veteran's left lower extremity neurologic disability was of a moderate degree and the right lower extremity neurologic disability was of a mild degree. Regarding the veteran's service-connected low back disability, the record reflects that the veteran has had several VA spine examinations since he filed his TDIU application in September 2001. A February 2002 VA spine examination report indicates that the veteran reported that he has a significant amount of low back pain and he takes Percocet for his discomfort. Upon physical examination, the veteran had intact sural, saphenous, deep peroneal and superficial peroneal sensation. All muscle strength was 5/5. He had no pain with palpation about his well-healed scar in the L3 to L5 region of his back. The veteran had range of motion of approximately 15 degrees of lateral bending, bilaterally. He had extension to approximately 10 degrees and was able to bend over to touch his ankle. He denied a history of bowel or bladder changes (except for one isolated incident) and radiation down his bilateral lower extremities, weakness, or paresthesias. It was noted that he was otherwise asymptomatic. X-rays, dated in February 2002, revealed degenerative disc disease at L4-5. A private medical record from T.E.M., M.D., dated in October 2003, indicates that this physician treated the veteran for many years. The private physician opined that the veteran is unable to work due to the seriousness of his health conditions. It was noted that the veteran has had problems with his back, sciatica, and Rheumatoid arthritis. Dr. T.M. further opined that the veteran cannot maintain or function normally because of his chronic back and nonservice-connected Rheumatory arthritis of his back. The Board notes that this private opinion indicates that a cause of the veteran's inability to maintain or function normally is his service- connected low back disability, but it further indicates that a non service-connected disability is a factor. In light of this, the Board does not find this private opinion to be dispositive of the veteran ability to maintain substantially gainful employment solely due to his service-connected disabilities. A report of a March 2004 VA spine examination reveals that the veteran's sciatic problems were gone so his exclusive complaint was low back pain. He also complained of a pain that seemed to go into his left hip. It was noted that he used a cane almost full-time and has been on Percocet for a long time. Although it was noted that prolonged positions of standing or sitting seemed to bother the veteran's back, the veteran's sensation was intact to light touch. The veteran's EHL (extensor hallucis longus), dorisflexors, plantar flexors, quadriceps and hamstrings were 5/5. Even though the veteran needed to stabilize by leaning forward onto the examination table, once stabilized, he was able to touch his mid-shin and be at approximately 55 degrees of flexion. His extension was 10 degrees and he rotated 45 degrees, bilaterally, with 20 degrees of lateral bend, bilaterally. At a May 2005 VA spine examination the veteran reported symptoms that radiate into his leg. He reported that his symptoms were most pronounced when he had to sit for a prolonged period of time. It was noted that the veteran was taking Percocet and that he had some physical therapy and has had a course of injections. On physical examination, the veteran had minimal discomfort on palpation of his lumbar spine and paraspinal musculature. The veteran had forward flexion to 50 degrees, extension to about 5 degrees, and lateral bend to about 25 degrees. The VA examiner noted that repetitive motion aggravated his low back pain, but it did not further limit his motion. The veteran had 5 out of 5 muscle strength in the pertinent muscles and his sensation was intact in all distributions. It was noted that March 2004 lumbosacral X-rays revealed degenerative changes at L4 and L5. The impression was low back pain, status post laminectomy with symptoms of lumbar radiculopathy. In discussing the veteran's employability, the VA examiner stated that he agreed with the veteran that there would be considerable difficulty for the veteran to "find" a job of any kind of a physical nature where the veteran would not have to lift anything more than 10 to 20 pounds because of lifting restrictions. The examiner also stated that because of the veteran's symptoms while sitting, he would be unable to "obtain" any kind of job that would require him to sit at a desk for any prolonged period of time. The Board notes here, as it did in its August 2006 remand, that this VA examiner only addressed the veteran's ability to "obtain" or "find" employment consistent with his functional impairment due to his service-connected low back disability, and not as to his employability or ability to "maintain" substantially gainful employment in light of his service- connected low back disability. As such, the Board finds the opinion of the May 2005 VA examiner to be of little or no probative value. Upon VA spine examination in March 2006, the veteran reported that his back pain ranges from a 3 to a 9/10 in severity and it will radiate down his left leg. It was noted that the veteran is on Percocet and that he does not have any bowel or bladder issues. It was noted that prolonged weight bearing and twisting exacerbate his back pain as well. The VA examination report indicates that the veteran ambulated with a straight cane when his back flared up. The veteran described three to four incapacitating episodes a year during which he will take pain medication and lie still until the pain gradually resolves. In this regard, the objective evidence does not establish incapacitating episodes, as defined by Note (1) to the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, which defines such as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Indeed, there is no evidence of any bed rest prescribed by a physician. Upon physical examination, the veteran was noted as being pleasant and not in acute distress. Despite some prominent paraspinals at the lower thoracic and upper lumber levels on the right that were mildly tender to palpation, there was no midline, sacroiliac, piriformis, or greater trochanteric tenderness to palpation. The standing Gillet test was symmetric, bilaterally. The veteran had flexion to 50 degrees, extension to 5 degrees, lateral bend to 25 degrees, bilaterally, and lateral rotation to 15 degrees, bilaterally. It was noted that repetitive motion caused a little bit of aggravation of the veteran's pain, but it did not change the range of motion values just noted. The veteran pertinent muscles had strength of 5/5. After a review of the record, the March 2006 VA examiner opined that given the veteran's prior work history and education status, that it would be difficult for the veteran to "obtain or find" employment. The VA examiner then stated that if the veteran were to obtain and find employment, such employment would likely be a position that would require some degree of manual labor or stress on his back. Next, the VA examiner stated that after taking this into consideration, it was the examiner's opinion that it is less likely than not that the veteran would be able to maintain substantially gainful employment in light of his service-connected back disability. The examiner's rationale was that employment in a position, such as a laborer, would greatly exacerbate his back pain and likely preclude the veteran from long-term employment at such a position. Looking at the veteran's occupational history, it is possible that his service-connected disability would prevent him from engaging in his prior employment of a laborer. However, the medical evidence does not reflect that the veteran is functionally incapable of performing other jobs, to include performing sedentary work with little or no manual labor. Indeed, there are no objective findings that the veteran had forward flexion to at least 50 degrees. The record does not reflect that the veteran uses or used a TENS unit. The veteran had muscle strength of 5/5 upon VA examinations in March 2004 and in March 2006. Further, upon the most recent VA spine examination, the veteran was noted as being pleasant and not in acute distress. As previously noted, the Board acknowledges that some of the veteran's prominent paraspinals at the lower thoracic and upper lumber levels on the right that were mildly tender to palpation, but further physical examination reveals no midline, sacroiliac, piriformis, or greater trochanteric tenderness to palpation. Additionally, the last VA examiner (in March 2006) only opined as to the preclusion of manual labor or a position requiring stress to the veteran's back. The examiner did not include preclusion of the veteran's ability to maintain substantially gainful employment in an occupation that was sedentary in nature or required little or no strenuous labor or stress to the veteran's back. Based on the foregoing, the Board finds that the veteran is not precluded from securing and maintaining substantially gainful employment, consistent with his education and occupational experience, due to his service-connected disabilities. The Board acknowledges the veteran's contentions, and the several lay statements submitted on his behalf, that he cannot work due to his service-connected disabilities. The Board notes that the veteran and other lay persons are competent to make factual observations, but specialized training and knowledge are necessary to make competent medical conclusions. As such, the veteran's and the other lay contentions are at odds with the objective medical evidence of record that shows that the veteran has no exceptional or unusual factor associated with his service- connected disabilities that render the regular schedular standards impracticable. The Board places less weight or probative value on the veteran's and other lay statements concerning the symptoms from his service-connected disabilities than it does on the objective medical reports. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Thus, to the extent that his service-connected disabilities cause occupational impairment, the Board finds that the veteran is appropriately compensated by the current combined rating of 50 percent. As noted above, the veteran's situation does not present such an exceptional or unusual disability picture as to warrant entitlement to a TDIU on an extraschedular basis. For the reasons stated above, the Board concludes that the preponderance of the evidence is against the veteran's claim for a TDIU and, as such, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to TDIU is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs