Citation Nr: 0814460 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 03-02 584 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Morgan G. Adams, Esq. ATTORNEY FOR THE BOARD F. Fuller, Associate Counsel INTRODUCTION The veteran served on active duty from February 1954 to September 1954. This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In July 2006 the Board remanded the appeal for further development by the originating agency. It has been returned to the Board for further appellate action. FINDING OF FACT The veteran's service-connected disabilities do not preclude him from obtaining or maintaining any form of substantially gainful employment consistent with his education and occupational background. CONCLUSION OF LAW The criteria for a total rating based on individual unemployability due to service-connected disabilities have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Legal Criteria A TDIU may be granted where the schedular rating is less than total and the service-connected disabilities preclude the veteran from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2007). If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a) (2007). 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). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19 (2006); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Analysis The veteran's service-connected disabilities are bilateral hearing loss, rated as noncompensable and tinnitus, rated at 10 percent. Thus, the veteran does not meet the schedular criteria for consideration of a total rating based on individual unemployability. See 38 C.F.R. § 4.16(a) (2007). Although the veteran does not meet the schedular criteria for consideration of a TDIU rating, the Board must also consider whether extra-schedular consideration is warranted. As set out above, such consideration is warranted when a veteran fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), and when two additional criteria are met. First, it must be shown that the claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities; see 38 C.F.R. § 4.16(b) (2007). Second, the case must present such an exceptional or unusual disability picture, with such related factors as marked interference with employment or frequent periods of hospitalization, that would render impractical the application of the regular schedular standards; see 38 C.F.R. § 3.321 (2007). In this case, as will now be addressed, neither criterion is met. Therefore, referral of this case to the Director of the VA Compensation and Pension Service for extra-schedular consideration is not in order. The Board finds that there is no evidence in the record to support a conclusion that the veteran is not able to maintain gainful employment due to his bilateral hearing loss or tinnitus. The record, including a report from the City of Chattanooga, where the veteran had been employed, shows that his employment as a custodian ended August 28, 1997 when the veteran took normal retirement at age 63 under the City of Chattanooga Pension Plan. In support of his claim, the veteran has also submitted a February 2007 statement from T.A. Kadrie, MD, who has treated the veteran since April 2004 for moderate to severe dementia. Dr. Kadrie states that the veteran is totally disabled due to the progression of his dementia. The veteran is not service connected for dementia, and Dr. Kadrie does not mention his service-connected hearing loss or tinnitus. In summary, the evidence does not establish or suggest that the veteran's service-connected disabilities are sufficient by themselves to preclude him from obtaining or engaging in substantially gainful employment. Accordingly, referral of the veteran's TDIU claim for extra-schedular consideration is not warranted, and the claim must be denied. Duties to Notify and to Assist Claimants VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 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 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 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). 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); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The 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, defined to 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. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that in April 2002, prior to the initial adjudication of the claim, and in December 2005 and September 2007, the veteran was provided with the notice required by section 5103(a), to include notice that he submit any pertinent evidence in his possession. The Board notes that, even though the letters requested a response within 60 days, they also expressly notified the veteran that he had one year to submit the requested information and/or evidence, in compliance with 38 U.S.C.A. § 5103(b) (evidence must be received by the Secretary within one year from the date notice is sent). The veteran was provided the specific notice required by Dingess v. Nicholson, 19 Vet. App. 473 (2006) in the September 2007 letter. Finally, the Board notes that veteran's service medical records and all other pertinent available records have been obtained in this case. Neither the veteran nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the denied claim. The Board is also unaware of any such outstanding evidence. The Board is satisfied that any procedural errors in the development and consideration of the claim were not prejudicial to the veteran. ORDER A total disability rating for compensation purposes based upon individual unemployability is denied. ____________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs