Citation Nr: 1313328	
Decision Date: 04/22/13    Archive Date: 05/03/13

DOCKET NO.  11-15 117A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to a total rating for individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

Bernard T. DoMinh, Counsel






INTRODUCTION

The Appellant served on active duty in the United States Navy from July 1944 to June 1946.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision by the Houston, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA) which, inter alia, denied the Appellant's claim of entitlement to a TDIU.

The Board notes that per the Appellant's request, he had been scheduled for a hearing at the RO before a traveling Veterans Law Judge, to be held on March 5, 2013.  The Appellant was duly notified in advance via written correspondence to appear for this hearing and also advised that if he failed to show and still desired to have a hearing, he must submit a written motion for a new hearing date within 15 days after the scheduled hearing date explaining why he did not appear and why a timely request for a new hearing date could not be submitted.  Otherwise, the claim would be processed as if his hearing request had been withdrawn.  The claims file indicates that the Appellant failed to show for the March 5, 2013 hearing, did not show good cause beforehand as to why he could not attend it, and thereafter did not file a timely written motion for a new hearing date by the March 20, 2013 deadline.  His hearing request is thusly deemed to have been withdrawn.  See 38 C.F.R. § 20.704(d) (2012).  The Board will now proceed with the adjudication of his TDIU claim.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002) and 38 C.F.R. § 20.900(c) (2012).  


FINDINGS OF FACT

The Appellant does not have any service-connected disabilities.



CONCLUSION OF LAW

The criteria for assignment of a TDIU have not been met.  38 C.F.R. § 3.340, 4.16(b) (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA has duties 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  

With regard to the Appellant's claim of entitlement to a TDIU, the issue presented is solely one of statutory interpretation and the claim is barred as a matter of law.  See Smith v. Gober, 14 Vet. App. 227, 231-32 (2000); aff'd 281 F.3d 1384  (Fed. Cir. 2002); cert. denied 537 U.S. 821 (2022).  See also 38 C.F.R. § 3.159(b)(3)(ii) (2012).  Tithe relevant facts are not in dispute and resolution of the claim is wholly dependent on interpretation of the applicable laws and regulations pertaining to entitlement to a TDIU.  The duties to notify and assist are therefore inapplicable and need not be considered.  See Mason v. Principi, 16 Vet. App. 129, 132  (2002); Dela Cruz v. Principi, 15 Vet. App. 143, 149  (2001); see also VAOPGCPREC 5-2004 (June 23, 2004).  

Nevertheless, the Board notes that the Appellant was notified via letter dated in August 2007 of the criteria for establishing a TDIU, the evidence required in this regard, and his and VA's respective duties for obtaining evidence.  He also was notified of how VA determines disability ratings and effective dates if service connection is awarded.  This letter accordingly addressed all notice elements and predated the initial adjudication by the AOJ/RO in October 2007.  Nothing more was required.  

As for VA's duty to assist, the Appellant does not contend that any additional evidence exists to support his claim for TDIU.  Rather, as discussed, the claim for a TDIU is being denied on the basis that the Appellant is not presently service connected for any disability, which thereby renders him ineligible for TDIU benefits.  He does not assert that there is any additional evidence, which is not already of record, that would support his claim.  Indeed, 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 Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007).

A TDIU 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 a result of a single service-connected disability ratable at 60 percent or more as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a).

The Appellant's claims file demonstrates that he does not presently have any service-connected disabilities.  To be entitled to TDIU, the Appellant must be unable to secure and following a substantially gainful occupation as a result of service-connected disabilities.  As he does not have any service-connected disabilities, as a matter of law, there is no basis for assignment of a TDIU.  Sabonis v. Brown, 6 Vet. App. 426 (1994).  His TDIU claim is therefore denied.


ORDER

The claim for a TDIU is denied.



____________________________________________
MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs