Citation Nr: 1306970 Decision Date: 02/28/13 Archive Date: 03/01/13 DOCKET NO. 97-34 478 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). ATTORNEY FOR THE BOARD Tiffany Berry, Associate Counsel INTRODUCTION The Veteran had active service from November 1964 to November 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal following a December 2006 Board remand that determined that the issue of entitlement to a TDIU rating was raised during the pendency of the Veteran's previously appealed increased rating claim. See also Rice v. Shinseki, 22 Vet. App. 447 (2009). A February 2009 RO decision rating action denied a claim for a TDIU rating. In July 2000, May 2004, May 2009, September 2010, and May 2012, the Board remanded this appeal for further development. The Board notes that in an August 2011 statement, the Veteran raised the issue of entitlement to an effective date earlier than February 5, 1997, for service connection for gastritis. That issue was previously referred to the RO for appropriate action in the June 2012 Board decision. FINDINGS OF FACT 1. The Veteran service-connected disabilities are chronic anxiety, rated at 70 percent disabling, and gastritis, rated at 10 percent disabling. These ratings combine to 70 percent. 2. In May 2012, the Board remanded this appeal for a VA examination to decide the issue of entitlement to an increased evaluation for the service-connected gastritis, including obtaining an opinion as to whether the Veteran's service-connected disabilities, alone or in the aggregate, render him unable to secure or follow substantially gainful employment. 3. The Veteran failed to appear at the August 2012 examination, and he has not presented good cause for the failure to appear. CONCLUSION OF LAW The issue of entitlement to TDIU must be denied as a matter of law. 38 C.F.R. § 3.655 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran is seeking entitlement to a TDIU as a result of his service-connected disabilities of chronic anxiety and gastritis. Because the application of the law to the undisputed facts is dispositive of this appeal, no discussion of VA's duties to notify and assist is required. See Mason v. Principi, 16 Vet. App. 129 (2002). A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show (1) a single disability rated as 100 percent disabling; or (2) that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. While the Veteran may be unemployed, the dispositive issue is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The present matter was previously before the Board in May 2012. At that time, the Board found that a VA examination was necessary in order to reassess the severity of the Veteran's service-connected gastritis. The Board also requested an opinion as to whether the Veteran's service connected disabilities, alone or in the aggregate, render him unable to secure or follow substantially gainful employment. The claims file shows that the RO was notified in August 2012 that the Veteran failed to report for the scheduled VA examination. A claim for a TDIU is a claim for an increased rating. Dalton v. Nicholson, 21 Vet. App. 23, 31-32 (2007); see also Hurd v. West, 13 Vet. App. 449, 451-52 (2000); Norris v. West, 12 Vet. App. 413, 420 (1999). When entitlement to a benefit cannot be established without a current VA examination and a claimant, without good cause, fails to report for an examination scheduled in conjunction with a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655(a), (b). The Board must determine "(1) whether the examination was necessary to establish entitlement to the benefit sought, and (2) whether the Veteran lacked good cause to miss the scheduled examination." Turk v. Peake, 21 Vet. App. 565, 569 (2008). Here, the Board in May 2012 found that a VA examination was necessary in order to reassess the severity of the Veteran's service-connected gastritis, and any impact of the his service-connected disabilities on his employability. Subsequent to his failure to appear, the Veteran has not submitted any correspondence. The record does not contain any evidence showing that the Veteran was not informed of the date, time, and place of the August 2012 examination. In short, the Veteran was scheduled for a VA examination, which was necessary to decide his claim for entitlement to a TDIU. He failed to appear at the examination, and he has not presented good cause for the failure to appear. Accordingly, the claim must be denied. 38 C.F.R. § 3.655. As the disposition of this claim is based on the law, and not the facts of the case, the claim must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to a TDIU is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs