Citation Nr: 0813333 Decision Date: 04/23/08 Archive Date: 05/01/08 DOCKET NO. 06-05 187 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for facial injury. 2. Entitlement to service connection for cranial injury. 3. Entitlement to service connection for loss of the right eye. 4. Entitlement to service connection for thoracolumbar strain. 5. Entitlement to service connection for a total disability rating based on individual unemployability. REPRESENTATION Veteran represented by: Minnesota Department of Veterans Affairs ATTORNEY FOR THE BOARD J. W. Kim, Associate Counsel INTRODUCTION The veteran served on active duty from February 1966 to December 1967 with subsequent service in the Naval Reserve. This case comes before the Board of Veterans' Appeals (Board) on appeal of August 2005 and September 2005 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. Although the veteran initially requested a Board hearing, he later stated that he elected not to have one. Thus, his request for a hearing before a member of the Board is considered withdrawn. See 38 C.F.R. § 20.704 (2007). FINDINGS OF FACT 1. The car accident resulting in the veteran's facial injury, cranial injury, loss of the right eye and thoracolumbar strain did not occur during active duty, active duty for training or inactive duty training. 2. The veteran has no rated service-connected disabilities. CONCLUSIONS OF LAW 1. Facial injury, cranial injury, loss of the right eye and thoracolumbar strain were not incurred in or aggravated by active service. 38 U.S.C.A. §§ 101(21)-(24), 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2007). 2. The criteria for a TDIU are not met. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.16 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). The notice requirements of the VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; what subset of the necessary information or evidence, if any, the VA will attempt to obtain; and a general notification that the claimant may submit any other evidence he has in his possession that may be relevant to the claim. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule); see also Sanders, 487 F.3d 881. In this case, in March, May and July 2005 letters, issued prior to the decisions on appeal, the RO provided notice to the veteran regarding what information and evidence is needed to substantiate his claims for service connection and a total disability rating based on individual unemployability (TDIU), as well as what information and evidence must be submitted by the veteran, what information and evidence will be obtained by VA and the need for the veteran to advise VA of or submit any further evidence he has in his possession that pertains to the claims. Through the rating decisions, statements of the case and supplemental statements of the case, the veteran was informed of the service requirement. Furthermore, the veteran's January 2006 correspondence stating his assertion that he was on active duty at the time of the accident indicates his actual knowledge of the service requirement. The claims were last readjudicated in February 2006. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the veteran. Specifically, the information and evidence that have been associated with the claims file include the veteran's service treatment and personnel records, and post- service medical records and examination reports. In addition, in February 2005 correspondence, the veteran indicated that medical records from two private facilities were unavailable. Moreover, in March 2006 correspondence, the veteran indicated that he had no other relevant information or evidence to submit to substantiate his claims. As discussed above, the VCAA provisions have been considered and complied with. The veteran was notified and aware of the evidence needed to substantiate his claims for service connection and a TDIU, the avenues through which he might obtain such evidence and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided and there has been a complete review of all the evidence without prejudice to the veteran. Moreover, as the Board concludes below that the preponderance of the evidence is against the claims, any question as to an appropriate disability rating or effective date to be assigned is rendered moot. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the veteran. See Sanders, 487 F.3d 881. Thus, any such error is harmless and does not prohibit consideration of these matters on the merits. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). With respect to the TDIU claim, because the claim is contingent upon the outcome of the service connection claims and they have been denied, the TDIU claim has no basis in law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Thus, any deficiency in notice with respect to the claim is harmless. II. Analysis The Board has reviewed all the evidence in the veteran's claims file, which includes: his contentions, service treatment records, service personnel records, private medical records, VA medical records, and VA examination reports. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). The term "active military, naval, or air service" includes active duty, any period of active duty for training during which the individual was disabled or died from a disease or injury incurred in or aggravated in the line of duty, and any period of inactive duty training during which the individual was disabled or died from an injury incurred in or aggravated in the line of duty. 38 U.S.C.A. § 101(24) (West 2002). In this case, the veteran contends that on April 13, 1968, he was involved in a car accident during a period of active service in the Naval Reserve that resulted in facial injury, cranial injury, loss of the right eye and thoracolumbar strain. He asserts that, although he was working for a railroad company, he was essentially functioning in a military capacity. Alternatively, he asserts that he was on active duty at the time of the accident. Initially, the Board observes that the veteran does not contend, and the record does not show, that his disabilities were incurred or aggravated during his period of active service from February 1966 to December 1967. Thus, the Board will focus on his period of service in the Naval Reserve. In this regard, the Board observes that the case will turn on whether car accident occurred during active duty, any period of active duty for training during or any period of inactive duty training. The veteran's service personnel records from Naval Reserve service show that he earned no points from April 1, 1968, to April 19, 1968. During that time, there were no drills, no group active duty for training, no active duty for training, no active duty and no correspondence courses completed. Only service department records can establish if and when a person was serving on active duty, active duty for training or inactive duty training. Cahall v. Brown, 7 Vet. App. 232, 237 (1994). Service department records are binding on VA for purposes of establishing service in the United States Armed Forces. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). Given the above, the Board finds that the car accident resulting in the veteran's facial injury, cranial injury, loss of the right eye and thoracolumbar strain did not occur during active duty, active duty for training or inactive duty training. Thus, service connection for the disabilities is not warranted. In reaching the conclusion above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). TDIU 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. 38 C.F.R. § 3.340 (2007). If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341 (2007). In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15 (2007). If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the veteran is unable to secure or follow a substantially gainful occupation as a result of service- connected disability, provided that he has one service- connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of nonservice- connected disabilities will be disregarded if the above- stated percentage requirements are met and the evaluator determines that the service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a) (2007). In this case, the veteran has no rated service-connected disabilities. Thus, the veteran's inability to secure or follow a substantially gainful occupation is not due to a service-connected disability, and the claim must be denied as a matter of law. See 38 C.F.R. § 4.16; Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Service connection for facial injury is denied. Service connection for cranial injury is denied. Service connection for loss of the right eye is denied. Service connection for thoracolumbar strain is denied. A TDIU is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs