Citation Nr: 1314726 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 07-36 883 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for an eye disorder, to include as secondary to service-connected malaria. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Tabitha G. Macko, Counsel INTRODUCTION The Veteran had active service from October 1965 to February 1970. These matters come before the Board of Veterans' Appeals (BVA or Board) on appeal from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, that denied the benefits sought on appeal. The Veteran appealed that decision and the case was referred to the Board for appellate review. In August 2012 the Board denied entitlement to service connection for a lung disorder, service connection for a skin disorder, service connection for an acquired psychiatric disorder, a compensable rating for service-connected malaria, and a compensable rating for service-connected left inguinal herniorrhaphy, and remanded the issues named on the title page for additional development. The appeal now returns to the Board for adjudication. In February 2013, additional evidence in the form of private medical treatment records was received at the Board. This material was accompanied by a waiver of initial agency of original jurisdiction (AOJ) consideration signed by the Veteran; therefore, the Board has no need remand this evidence for the RO's initial consideration. In an accompanying letter, the Veteran also indicated that he had additional information or evidence to submit in support of his appeal and requested that he be afforded a 30-day period to submit this information or evidence. More than 30 days have passed since the Veteran's February 2013 correspondence, and as no additional information or evidence has been received, and the Veteran has not indicated that he requires additional time to submit such information or evidence, the Board will proceed with the adjudication of his claim. Finally, the Board notes that it has reviewed not only the Veteran's physical claims file but also his file on the "Virtual VA" system to ensure a total review of the evidence. FINDINGS OF FACT 1. The Veteran does not have an eye disorder which began in service or has been shown to be causally or etiologically related to service or to a service-connected disorder. 2. The Veteran's service-connected disabilities, tinnitus, rated as 10 percent disabling; malaria, rated as 0 percent disabling; left inguinal herniorrhaphy with scar, rated as 0 percent disabling; and bilateral hearing loss, rated as 0 percent, have a combined 10 percent rating, and are not shown to be of such nature and severity as to preclude him from securing or maintaining substantially gainful employment; nor is referral warranted for extraschedular consideration. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an eye disorder, to include as secondary to service-connected malaria, have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012), 3.310 (as in effect prior to Oct. 10, 2006). 2. The schedular criteria for TDIU are not met, and TDIU is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19, 4.25 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claims. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claims prior to their initial adjudication. An August 2006 explained the evidence necessary to substantiate his claims, the evidence VA was responsible for providing, and the evidence he was responsible for providing. This letter also informed the Veteran of disability rating and effective date criteria. The Veteran has had ample opportunity to respond/supplement the record and he has not alleged that notice in this case was less than adequate. The Veteran's service treatment records (STRs) are associated with his claims file, and pertinent postservice treatment records (to include Social Security Administration (SSA) records) have been secured. The Veteran has also been afforded VA examinations pertaining to his claim for service connection for an eye disorder and for entitlement to TDIU. In February 2008, he was afforded a fee-based VA eye examination, and in March 2010, he was afforded another VA eye examination. The reports from those examinations reflect that the examiners obtained the Veteran's subjective history, recorded his current complaints, to include his factually accurate report of having experienced malaria in service, conducted appropriate physical examinations and rendered diagnoses and opinions consistent with the remainder of the evidence of record. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran failed to report for a VA audiology examination in April 2012 and for a VA eye examination in October 2012, which was ordered by the Board's August 2012 remand. VA's regulations provide that, when entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, action shall be taken in accordance as appropriate. 38 C.F.R. § 3.655(a). When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination is scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655(b). There is no statement of record from the Veteran reporting he did not receive notification of these examinations, and no mail was returned marked as undeliverable by the U.S. Post Office. Moreover, the Veteran has not reported that he is unwilling to attend another such examination. Accordingly, good cause has not been shown to schedule the Veteran for another VA audiological or eye examination. See 38 C.F.R. § 3.655; Wood v. Derwinski, 1 Vet. App. 190, 193(1991) (holding that the duty to assist is not a one-way street). As such, the Board is satisfied as to substantial compliance with its August 2012 remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). The Veteran has not identified any pertinent evidence that remains outstanding. Accordingly, VA's duty to assist is met and the Board will address the merits of the claim. B. Legal Criteria, Factual Background, and Analysis The Veteran has claimed entitlement to service connection for an eye disorder and entitlement for a TDIU. In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. If there is no showing of a resulting chronic disorder during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (continuity of symptomatology is applicable only to those conditions determined to be chronic under 38 C.F.R. §3.309(a)). Service connection may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prove service connection, the record must contain: (1) evidence of a current disability, (2) evidence, or in certain circumstances, lay testimony, of an in-service incurrence or aggravation of injury or disease, and (3) evidence of a nexus or relationship between the current disability and the in-service disease or injury. Coburn v. Nicholson, 10 Vet. App. 427 (2006); Disabled American Veterans v. Secretary of Veterans Affairs, 419 F. 3d 1317 (Fed. Cir. 2005). Certain disabilities, such as congenital or developmental defects and refractive error of the eye, are not deemed diseases or injuries for VA purposes. 38 C.F.R. § 3.303(c). However, under certain circumstances, service connection may be granted for such disorders if they are shown to have been aggravated during service. See 38 C.F.R. § 3.303(c); VAOPGCPREC 82-90 (July 18, 1990); VAOPGCPREC 67-90 (July 18, 1990). In a precedent opinion, VA General Counsel indicated that, for service connection purposes there is a distinction under the law between a congenital or development "disease" and a congenital "defect." Congenital diseases may be service connected if the evidence as a whole shows aggravation in service within the meaning of VA regulations. A congenital or developmental "defect," on the other hand, may not be service connected. However, service connection may be granted for additional disability due to disease or injury superimposed upon such a defect in service. VAOPGCPREC 82-90. Therefore, absent superimposed disease or injury, service connection may not be allowed for a congenital or developmental defect of the eyes, even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection. Id; Parker v. Derwinksi, 1 Vet. App. 522 (1991); McNeely v. Principi, 3 Vet. App. 357, 364 (1992). Service connection may be established on a secondary basis for a disability that is proximately due to, or the result of, or aggravated by a service-connected disease or injury. Establishing service connection on a secondary basis requires: (1) competent evidence (a medical diagnosis) of a current disability (for which secondary service connection is sought); (2) evidence of a service connected disability; and (3) competent evidence that the current disability was either (a) caused or (aggravated) by the service connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995)(en banc). Effective October 10, 2006, 38 C.F.R. § 3.310 was revised to implement the Allen decision. The revised 38 C.F.R. § 3.310 institutes additional evidentiary requirements that must be satisfied before aggravation may be conceded and service connection granted. In essence, it provides that in an aggravation secondary service connection scenario, there must be medical evidence establishing a baseline level of severity of disability prior to when aggravation occurred, as well as medical evidence showing the level of increased disability after aggravation occurred. As the Veteran's claim was pending prior to the effective date of the revised 38 C.F.R. § 3.310, the Board will consider the version in effect prior to October 10, 2006, as it is more favorable to the claimant. See Kuzma v. Principi, 341 F. 3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Eye Disorder The Veteran first claimed entitlement to service connection for an eye disorder, as secondary to his service-connected malaria in July 2006. The RO denied that claim in a December 2006 rating decision that was mailed to the Veteran in January 2007. The Veteran submitted a Notice of Disagreement (NOD) in January 2007. A Statement of the Case (SOC) was issued in October 2007 and the Veteran filed a Substantive Appeal (VA Form 9) in November 2007. The relevant evidence of record on this issue includes STRs, VA and private treatment records, and written statements from the Veteran. The Veteran's STRs show that in a September 1965 service entrance physical examination, his eyes were noted to be clinically normal. An examination of his visual acuity revealed that he had a defective vision that required the use of glasses and was "well corrected." In an associated report of medical history, the Veteran reported wearing glasses but denied having a history of eye trouble. In October 1965, the Veteran was afforded a vision examination as his prescription glasses were noted to be one year old. No apparent deviations were found during this examination. In April 1966, the Veteran's eyes were examined again after he reported that his prescription glasses had been broken two months earlier. The remainder of the Veteran's STRs are silent for any other requests for treatment, complaints of blurriness, or symptoms as to an eye disorder. In January 1970, the Veteran was examined for service separation. His eyes were again found to be clinically normal and his defective vision noted. VA treatment records begin in November 2005, when the Veteran reported during an initial evaluation that he had blurry vision. In June 2006, he reported for an annual ocular health examination wherein he complained of difficulty seeing with his glasses for the past year. He denied a personal history of eye injury or disease and denied a family history of glaucoma, macular degeneration, and blindness. Following an examination, the clinician assessed visually significant cataracts, more in the right eye than in the left; ocular hypertension with normal ONH (optic nerve hypoplasia) cupping; and high myopia/presbyopia with a myopic shift that was consistent with nuclear sclerotic cataracts. The Veteran was approved for cataract surgery for his right eye, though a subsequent note indicated that his intraocular hypertension would have to be lower for surgery. An August 2007 primary care evaluation noted the Veteran was assessed with glaucoma. In January 2008, the Veteran was afforded a fee-based VA examination for diabetes mellitus, to develop a claim then pending for that disorder. This examination included an examination of the eyes. The examiner observed retinopathy in both eyes, which he opined was most likely the result of the Veteran's primary hypertension. In February 2008, the Veteran was afforded a fee-based VA eye examination. The noted the Veteran's subjective history of having served in Vietnam, in combat, and that he was experiencing worsening vision. The Veteran also reported distorted and blurry vision, and that he had been assessed with glaucoma. The examiner conducted an eye examination with the eyes dilated and assessed visually significant cataracts in both eyes and pre-glaucoma. The examiner did not provide an opinion as to the etiology of the cataracts or pre-glaucoma, to include whether these eye disorders were caused or aggravated by the Veteran's service-connected malaria. In March 2010, the Veteran was afforded another VA eye examination. Although the Veteran's claims file was not made available to the examiner for review, the examiner noted that the Veteran was an established VA patient and reviewed his VA treatment records, noting the June 2006 eye examination and its assessments. The Veteran also reported to the examiner that he had had malaria twice while in the Republic of Vietnam. Following the objective examination, the examiner assessed visually significant cataracts; bilateral ocular hypertension, for which the Veteran was taking medication; and pseudomyopia. After conferring with a retina specialist, the examiner opined that the Veteran's cataracts were not caused by or a result of his service-connected malaria. In February 2011, the Veteran had a comprehensive eye examination at the VA medical facility. He reported a history of having had in 2010 a CE/IOL (cataract extraction with intraocular lens) for the right eye at a non-VA facility. His last comprehensive eye examination was also in the prior year at a non-VA facility. The Veteran reported to the clinician that he had had malaria in service while in Vietnam. The clinician conducted an examination and assessed refractive error with presbyopia and severe anisometropia, secondary to the unilateral CE/IOL; reduced best-corrected acuity in the left eye, secondary to cataract; pseudophakic right eye (intraocular lens was clear and well-centered); and OHTN (ocular hypertension) versus POAG-S (primary open-angle glaucoma). In August 2012, the Board remanded the Veteran's claim so that he could be afforded another VA examination. Specifically, the Board noted that the opinion provided during the March 2010 VA examination addressed only the etiology of the Veteran's cataracts; therefore, another examination and medical advisory opinion was needed to address the Veteran's other variously diagnosed eye/vision disorders. As was previously discussed, the Veteran failed to report for the VA examination that was scheduled in October 2012. He has also not provided good cause for failing to report for that examination. Therefore, his claim is to be considered based on the evidence of record. In February 2013, the Veteran did submit additional private treatment records regarding his bilateral eye disorders. These private treatment reports span from April 2010 to January 2013 and include the surgery report for his right eye CE/IOL in 2010, and for his left eye CE/IOL in January 2013. The private clinician gave the Veteran an assessment of open angle glaucoma and cataract nuclear sclerosis, which the Board notes are assessments already found in the claims file. The private clinician also noted the Veteran's cataracts were causing his decreased vision; he did not provide an opinion as to the etiology of those cataracts. After a thorough review of the entirety of the evidence of record the Board finds that entitlement to service connection for an eye disorder, to include as secondary to service-connected malaria, is not warranted. As noted above, in order to establish service connection for the claimed disorder on a direct basis, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the two. The Veteran's claim for direct service connection fails with respect to the second and third elements, though the requirement for a current disability has been met. Specifically, the Veteran's STRs show that when he entered service and separated from service, he was noted to have defective vision that was "well corrected" with prescription glasses. They do not show that he complained of or was treated for any other eye/vision disorders, such as glaucoma, cataracts, bilateral retinopathy, presbyopia, or ocular hypertension. VA regulations specifically prohibit service connection for refractory errors of the eyes unless such defect was subjected to a superimposed disease or injury, which created additional disability. See VAOPGCPREC 82-90, 55 Fed. Reg. 45711 (1990). Here, there is no evidence of a superimposed disease or injury occurring in service and, therefore, service connection for refractive error cannot be granted. Further, presbyopia is: "hyperopia and impairment of vision due to advancing years or old age. . . ." Dorland's Illustrated Medical Dictionary at 1511 (32d ed. 2012). Therefore, by the very assessment, the Veteran's presbyopia is attributable to his refractive error and his age, and not his service or a service-connected disability. The Board further notes that after the Veteran's January 1970 service separation examination wherein his eyes were noted to be clinically normal, he did not complain of or seek treatment for symptoms related to his eye until November 2005, when he reported having blurry vision. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disorder). Finally, the record does not show that any of the Veteran's clinicians or examiners have attributed his current eye disorders to an injury or disease that was incurred or aggravated by service. The Veteran himself does not report that he incurred cataracts or any of the assessed eye disorders in service, nor does he report having experienced these symptoms since service. The Board finds that direct service connection is not warranted. The Veteran's theory of entitlement in this matter is one of secondary service connection; he alleges that his eye disorder is due to his service-connected malaria. See July 2006 claim for service connection. As noted above, there are three requirements that must be met to substantiate a claim of secondary service connection. Of these, it is shown that the Veteran has been assessed with cataracts, glaucoma, pre-glaucoma, intraocular hypertension. Therefore, there is competent evidence of a current disability for which service connection is sought. He also has a service-connected disability, malaria. What he must still show to substantiate this claim is that the service-connected malaria caused or aggravated the cataracts or the other eye disorders. The only opinion in the record that addresses whether there is a relationship between the Veteran's cataracts and his service-connected malaria is that of the March 2010 VA examiner. In that opinion, the examiner reviewed the Veteran's VA treatment records, including the report from a comprehensive June 2006 eye health examination, and his STRs, which show that he suffered from malaria on two occasions while serving in Vietnam. After considering this evidence and consulting with a retina specialist physician, the March 2010 VA examiner opined that the Veteran's current cataract disorder was not caused by or the result of the malaria. The Board finds this opinion to be probative and persuasive. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008) (the relevant focus is not on whether the clinician had access to the claims file, but instead on whether the clinician was "informed of the relevant facts" in rendering a medical opinion). Significantly, no other opinion is of record, and as was previously noted, the Veteran failed to report for a VA examination that was scheduled for October 2012. It was expected that this examination would have provided a medical opinion as to whether any of the Veteran's other currently diagnosed eye disorders were caused or aggravated by any of his service-connected disabilities. The Board has considered the Veteran's assertions and acknowledges that he is competent to testify as to symptoms which are non-medical in nature or which come to him through his senses. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board). However, individuals without training are not competent to provide evidence as to more complex medical questions. The Veteran is not shown to have medical training and expertise, and so cannot provide a competent opinion on a matter as complex as the etiology of a specific disorder affecting his eyes or as to a matter as complex as whether his service-connected malaria had caused or has aggravated any of the eye disorders. Even according the Veteran's vague assertions some probative value, they are outweighed by the probative medical evidence indicating that there is no relationship between the Veteran's current cataract disorder and his service-connected malaria. See Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). The Board further emphasizes that none of the Veteran's private or VA medical treatment records suggest a relationship between any of his current eye disorders and his service-connected malaria. Notably, during a January 2008 VA examination that was conducted in conjunction with the Veteran's claim for service connection for diabetes mellitus, it was that examiner's opinion that the Veteran's retinopathy was most likely the result of his hypertension. In sum, the Board finds that there is a preponderance of evidence against a grant of service connection for an eye disorder. As there is a preponderance of evidence against the claim, the benefit-of-the-doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Accordingly, the Board finds that service connection is not warranted. TDIU VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). For those veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), total disability ratings for compensation may nevertheless be assigned when it is found that the service-connected disabilities are sufficient to produce unemployability; such cases should be referred to the Director, Compensation and Pension Service, for extraschedular consideration. 38 C.F.R. § 4.16(b). In Floyd v. Brown, 9 Vet. App. 95 (1996), the U.S. Court of Appeals for Veterans Claims (Court) held that the Board may not assign an extraschedular disability rating under 38 C.F.R. § 3.321(b)(1) in the first instance because 38 C.F.R. § 3.321(b)(1) establishes a specific procedure requiring all claims under that provision to be referred to the Under Secretary for Benefits or the Director of VA's Compensation and Pension Service for initial decision. However, the Court held that the Board may be required to consider the applicability of 38 C.F.R. § 3.321(b)(1) when the issue has been raised before the Board. The Veteran's service-connected disabilities and respective ratings are: tinnitus, rated as 10 percent; malaria, rated as 0 percent; left inguinal herniorrhaphy with scar, rated 0 percent; and bilateral hearing loss, rated as 0 percent. The combined rating for these disabilities is 10 percent. 38 C.F.R. § 4.25. Thus, the minimum schedular criteria for TDIU under 38 C.F.R. § 4.16(a) are not met. Hence, the Board will now consider whether the Veteran is entitled to consideration for extraschedular rating under 38 C.F.R. § 4.16(b). 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; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). A claim for TDIU presupposes that the rating for the service-connected disabilities is less than 100 percent, and only asks for a TDIU rating because of "subjective" factors that the "objective" rating does not consider. Vittese v. Brown, 7 Vet. App. 31, 34-35 (1994). The Board finds that the evidence fails to show that the Veteran's service-connected disabilities are so exceptional or unusual as to warrant referral to the Under Secretary for Benefits or the Director of VA's Compensation and Pension Service for extraschedular consideration. In particular, the evidence does not support a finding that the Veteran is demonstrably unable to obtain or maintain employment due to his service-connected disabilities. The Board has carefully considered the Veteran's statement in his July 2006 claim that was seeking TDIU because of his "legal blindness," which he reported was secondary to his service-connected malaria, and notes that no clinician, private or VA, or examiner has determined he is "legally blind" by any legal standard. Furthermore, the decision above denies the Veteran's claim for service connection for an eye disorder. The Board has also weighed evidence from SSA relating his inability to resume his past employment to his post-service, work-place left knee injury in 2004. The Board notes that the SSA administrative law judge's September 2006 decision made no mention of any of the Veteran's service-connected disabilities, and the underlying medical evidence of his decision did not either. Instead, the SSA administrative law judge reached the conclusion that the Veteran could not return to his past employment because of a non-service connected left knee (torn anterior cruciate ligament) disorder. The Board notes that the SSA disability determination and transmittal form lists only the non-service-connected left knee disorder when identifying conditions contributing to the Veteran's inability to work under that federal agency's standards. The Board further notes that the Veteran was notified of a scheduled April 2012 VA audiology examination; however, he failed to report for that examination, and so, any evidence that may have been gathered as to the impact of the tinnitus disability and the bilateral hearing loss disability on the Veteran's employability is not available to the Board. There was no statement of record from the Veteran reporting he had not received the notification for these examinations and no mail was returned marked as undeliverable by the U.S. Post Office. Moreover, the Veteran has not reported being willing to attend another such examination. No additional effort to schedule the Veteran for an audiological examination to consider employability is needed. See 38 C.F.R. § 3.655; Wood v. Derwinski, 1 Vet. App. 190, 193(1991) (holding that the duty to assist is not a one-way street). See also Friscia v. Brown, 7 Vet. App. 294, 297 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994) (where an appellant presents evidence of unemployability, VA has a duty to supplement the record by obtaining an examination which includes an opinion as to what effect the appellant's service-connected disability has on his ability to work). The Veteran was afforded a VA infectious diseases and a VA genitourinary examination in April 2011 and the examiner noted the Veteran reported he was retired and had been so since 2004 as a result of a knee injury. The examiner found the service-connected disabilities of malaria and left inguinal herniorrhaphy with scar had no effect on the activities of daily living. The fact that the Veteran is unemployed, and his numerous statements to clinicians and VA examiners that he is retired due to his work-place left knee injury, does not support the conclusion that the Veteran is unemployable due to his service-connected disabilities alone. The fact that he was no longer able to maintain his last employment also does not establish that he is unemployable. See Van Hoose, 4 Vet. App. at 363. The evidence, as described and discussed above, clearly shows that the Veteran is able to maintain some level of physical activity; he variously described his employment as that of a plant manager (November 2006 VA examination), chemical operator (November 2006 audiology examination), and as a machine operator (September 2006 SSA administrative law judge's decision) and the factual evidence does not reflect or suggest that employment in these fields would be precluded by his service-connected disabilities. For the reasons noted above, the evidence does not support a finding that the Veteran is unemployable because of his service-connected disabilities, alone. Accordingly, the preponderance of the evidence is against his claim for TDIU. ORDER Entitlement to service connection for an eye disorder, to include as secondary to service-connected malaria, is denied. Entitlement to a TDIU rating is denied. ____________________________________________ A. ISHIZAWAR Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs