Citation Nr: 1007484	
Decision Date: 03/01/10    Archive Date: 03/11/10

DOCKET NO.  08-12 531	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office 
Center in Wichita, Kansas


THE ISSUE

Entitlement to a total disability evaluation based on 
individual unemployability due to service-connected 
disabilities (TDIU).


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of 
the United States


ATTORNEY FOR THE BOARD

P. Olson, Counsel


INTRODUCTION

The Veteran had active military service from February 1962 to 
August 1962.

This matter comes before the Board of Veterans' Appeals 
(Board or BVA) on appeal from a November 2007 rating decision 
of the Department of Veterans Affairs (VA) Regional Office 
(RO) in St. Louis, Missouri.


FINDING OF FACT

The percentage rating for the Veteran's sole service-
connected disability, 20 percent, does not meet the minimum 
percentage requirements for an award of a TDIU; the Veteran 
is not unable to secure and follow a substantially gainful 
occupation by reason of service-connected disability.


CONCLUSION OF LAW

The criteria for a TDIU are not met.  38 U.S.C.A. §§ 1155 
(West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.16, 4.19 
(2009).


REASONS AND BASES FOR FINDING AND CONCLUSION

Preliminary Matters

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, all of the 
evidence submitted by the Veteran or on his behalf.  See 
Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) 
(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) (the law 
requires only that the Board address its reasons for 
rejecting evidence favorable to the veteran).  

Veterans Claims Assistance Act of 2000

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 claimants in substantiating a 
claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 
5103A, 5107, 5126 (West 2002); 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 
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); 
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 
183 (2002).  Proper notice from VA 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; and (3) that the claimant is expected to provide.  

With respect to service connection claims, the U.S. Court of 
Appeals for Veterans Claims held that, upon receipt of an 
application for a service-connection claim, 38 U.S.C. 
§ 5103(a) and 38 C.F.R. § 3.159(b) require VA 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, each of the 
five elements of the claim, including notice of what is 
required to establish service connection and that a 
disability rating and an effective date for the award of 
benefits will be assigned if service connection is awarded.  
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

With respect increased rating claims, In Vazquez-Flores v. 
Peake, 22 Vet. App. 37 (2008), the United States Court of 
Appeals for Veterans Claims held that, pursuant to 38 U.S.C. 
§ 5103(a) (2008) (currently at 38 U.S.C. § 5103(a)(1)), a 
VCAA notice for an increased rating claim must include the 
following information:  (1) the VA must notify the Veteran 
that in order to substantiate a claim, he or she must provide 
(or ask the VA to obtain) medical or lay evidence 
demonstrating that his or her disability has worsened or 
increased in severity and the effect the worsening has had on 
his or her employment and daily life; (2) if the Veteran's 
current diagnostic code "contains criteria necessary for 
entitlement to a higher disability rating that would not be 
satisfied" by providing the evidence described above-the 
example provided was where a "specific measurement or test 
result" would be required-then the VA must give "at least 
general notice" of that requirement; (3) the VA must tell 
the Veteran that if he or she is assigned a higher rating, 
that rating will be determined by applying relevant 
diagnostic codes, which generally provide for disability 
ratings between 0-100%, "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"; and (4) the notice must also 
provide examples of the types of medical and lay evidence-
such as job application rejections-that the Veteran may 
submit (or ask the VA to obtain) "that are relevant to 
establishing [her or] his entitlement to increased 
compensation."

Recently, the United States Court of Appeals for the Federal 
Circuit issued a decision on appeal that vacated and remanded 
the decision of the Veterans Claims Court in Vazquez-Flores.  
See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 
Sept. 4, 2009).  In view of some potentially qualifying 
language included in the Federal Circuit's decision in 
vacating the CAVC's decision ("insofar as"), it appears 
that only the generic first, third, and fourth elements 
[contained in the CAVC's decision] are in fact required under 
the Federal Circuit's decision.

VA has met all statutory and regulatory notice and duty to 
assist provisions.  A letter dated in August 2007 fully 
satisfied the duty to notify provisions. 38 U.S.C.A. § 
5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 6 Vet. App. at 
183, Dingess, 19 Vet. App. at 473, 22 Vet. App. at 37.  The 
letters informed the appellant of what evidence was required 
to substantiate the claim and of the appellant's and VA's 
respective duties for obtaining evidence, as well as how VA 
determines disability ratings and effective dates. 

In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) 
(Pelegrini II), the United States Court of Appeals for 
Veterans Claims (Court) held that VA must request that the 
claimant provide any evidence in his possession that pertains 
to the claim based upon 38 C.F.R. § 3.159(b).  The 
requirement of requesting that the claimant provide any 
evidence in his possession that pertains to the claim was 
eliminated by the Secretary during the course of this 
appeal.  See 73 Fed. Reg. 23353 (final rule revising 
38 C.F.R. § 3.159(b) to rescind fourth element notice as 
required under Pelegrini II, effective May 30, 2008).  Thus, 
any error related to this element is harmless.  However, 
although this notice is no longer required, the Board notes 
that the Veteran was aware that it was ultimately his 
responsibility to give VA any evidence pertaining to the 
claim.  The August 2007 letter told him to provide any 
relevant evidence in his possession.  See Pelegrini, 18 Vet. 
App. at 120.  
 
The notice required by 38 U.S.C.A. § 5103(a) 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).  That was 
done in this case.

The Veteran's service treatment records and VA medical 
treatment records have been obtained, to the extent 
available.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The 
Veteran has identified no private treatment records that he 
wished VA to obtain on his behalf.  There is no indication in 
the record that any additional evidence, relevant to the 
issues decided herein, is available and not part of the 
claims file.  

The duty to assist also includes providing a medical 
examination or obtaining a medical opinion when such is 
necessary to make a decision on the claim, as defined by law.  
The Veteran was accorded a VA examination in January 2007. 38 
C.F.R. § 3.159(c)(4).  The January 2007 VA examiner addressed 
the severity of the Veteran's left knee disability in 
conjunction with a physical examination of and interview with 
the Veteran.  There is no objective evidence indicating that 
there has been a material change in the severity of the 
Veteran's service-connected disorders since he was last 
examined.  38 C.F.R. § 3.327(a).  The duty to assist does not 
require that a claim be remanded solely because of the 
passage of time since an otherwise adequate VA examination 
was conducted.  VAOPGCPREC 11-95.  The January 2007 VA 
examination report is thorough.  

The Veteran has not been afforded a VA examination, with an 
opinion as to whether the Veteran's service connected 
disability alone renders him unable to secure and follow a 
substantially gainful occupation.  The Board concludes an 
examination is not needed in this case because the only 
evidence indicating the Veteran's service-connected left knee 
disability alone renders him unable to secure and follow a 
substantially gainful occupation is his own lay statements.  
Such evidence is insufficient to trigger VA's duty to provide 
an examination.  

As there is no indication that any failure on the part of VA 
to provide additional notice or assistance reasonably affects 
the outcome of this case, the Board finds that any such 
failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 
103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 
2006).

TDIU

The Veteran contends that his service-connected left knee 
disability renders him unemployable.  Thus, he claims that he 
is entitled to a TDIU rating.

A total disability evaluation may be assigned where the 
schedular evaluation is less than total when the disabled 
person is 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, or if 
there are two or more disabilities, there shall be at least 
one ratable at 40 percent or more, and sufficient additional 
disability to bring the combined rating to 70 percent or 
more.  38 C.F.R. §§ 3.340, 3.341, 4.16(a).

A TDIU rating is based solely on the level of disability due 
to service-connected disabilities.  The Veteran is only 
service-connected for left knee postoperative medial 
meniscectomy with degenerative joint disease with a 
disability rating of 20 percent.  As such, he is not eligible 
for consideration of a TDIU rating under 38 C.F.R. § 4.16(a).

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 are required to submit to the Director, Compensation 
and Pension Service, for extraschedular consideration all 
cases of Veterans who are unemployable by reason of service-
connected disabilities, but who fail to meet the percentage 
standards set forth in 38 C.F.R. § 4.16(a).  Id.  Where a 
claimant does not meet the schedular requirements of 4.16(a), 
the Board has no authority to assign a TDIU rating under 
4.16(b) and may only refer the claim to the C&P Director for 
extraschedular consideration.  Bowling v. Principi, 15 Vet. 
App. 1 (2001).

An assessment for extra-schedular referral requires 
consideration of the Veteran's service-connected disability, 
employment history, educational and vocational attainment and 
all other factors having a bearing on the issue.  38 C.F.R. § 
4.16(b). The Veteran's age and effects of non-service 
connected disability, however, are not factors for 
consideration.  38 C.F.R. §§ 3.341(a), 4.19.  The issue at 
hand involves a determination as to whether there are 
circumstances in this case, apart from the non-service-
connected conditions and advancing age, that would justify a 
total disability rating based on unemployability.  Van Hoose 
v. Brown, 4 Vet. App. 361 (1993).

In addressing the extraschedular issue, the Board must 
determine if there is some service connected factor outside 
the norm which places the Veteran in a different position 
than other Veterans with a 70 percent combined disability 
rating.  Id.  The fact that the Veteran is unemployed or has 
difficulty obtaining employment is not enough as a schedular 
rating provides recognition of such.  Id.  Rather, the 
Veteran need only be capable of performing the physical and 
mental acts required by employment.  Id.  The schedular 
criteria contemplate compensating a Veteran for considerable 
loss of working time from exacerbations proportionate to the 
severity of the disability.  See 38 C.F.R. § 4.1.

The Board has considered the potential application of various 
provisions of Title 38 of the Code of Federal Regulations, 
but the record does not indicate that the Veteran is 
unemployable solely due to service connected disability.  38 
C.F.R. § 4.16(b).  In this regard, the Board finds that there 
has been no medical showing by the Veteran that his service-
connected disability results in his unemployability as the 
Veteran has not submitted competent medical evidence 
indicating he is unable to work due to his service-connected 
disability.  In the absence of such factors, while the 
Veteran is currently unemployed, the Board finds that 
criteria for submission for assignment of an extraschedular 
rating pursuant to 38 C.F.R. § 4.16(b) are not met.


ORDER

Entitlement to a TDIU is denied.



____________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs