Citation Nr: 1316407	
Decision Date: 05/20/13    Archive Date: 05/29/13

DOCKET NO.  09-18 261	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUE

Entitlement to a total disability rating for compensation on the basis of individual unemployability.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

J. M. Kirby, Counsel



INTRODUCTION

The Veteran served on active duty from December 1973 to January 1977.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.  


FINDING OF FACT

The evidence does not establish that the Veteran's sole service-connected disability, residuals of fracture to the right mandible, precludes him from securing and maintaining substantially gainful employment.


CONCLUSION OF LAW

The criteria for a total rating for compensation purposes based upon individual unemployability (TDIU) have not been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 3.655, 4.16 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA has met all statutory and regulatory notice and duty to assist provisions.  See 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, 3.326 (2012).  A June 2008 letter satisfied the duty to notify provisions, to include notifying the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

The Veteran's service treatment records, VA medical treatment records, and identified private medical records have been obtained.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. A March 2006 VA inquiry to the Social Security Administration (SSA) revealed that the Veteran was not in receipt of disability benefits from that agency.  38 C.F.R. § 3.159 (c) (2); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010).  A VA examination was not conducted in conjunction with the appeal as no questions of medical fact requiring an opinion were presented by the record.  38 C.F.R. § 3.159(c) (4).

Review of the record does not indicate that additional evidence pertinent to the issue adjudicated in this decision is available, but not associated with the claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication VA did not provide sufficient notice or assistance, such that it reasonably affects the outcome of the case, the Board finds that any such lack of sufficient notice is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009).  

VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience.  38 C.F.R. §§ 3.340, 3.341, 4.16.  TDIU benefits are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment.  If there is only one such disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a).  Here, the Veteran's sole service-connected disability is right mandible fracture residuals, which is rated as noncompensably disabling (0%).  

Although the percentage requirements are not met, entitlement to benefits on an extraschedular basis may also be awarded when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability or disabilities, and consideration is given to the veteran's background including employment and educational history.  38 C.F.R. §4.16(b).  The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance.  Bowling v. Principi, 15 Vet. App. 1 (2001).  In determining whether unemployability exists, consideration may be given to a veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19 (2012).  

It is important to note that the Veteran has been in receipt of nonservice-connected pension since April 2005; disabilities considered for pension at that time included emphysema, loss of use of the left foot status post cerebral vascular accident (CVA), left side hemiplegia status post CVA, left facial drop and left eye gaze palsy, status post CVA, hypertension, and left ventricle hypertrophy with mitral and tricuspid regurgitation.  Additionally, special monthly pension based on housebound status was granted effective January 2006, and the June 2009 and February 2010 rating decisions denied numerous claims including special monthly compensation based on the need for aid and attendance, and service connection for chronic low back pain, status post ischemic CVA, posttraumatic stress disorder (PTSD), diabetes mellitus type 2, and hypertension.

However, the record does not establish that the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected right mandible fracture residuals.  As noted in the June 1995 rating decision, and confirmed by the evidence dated since that time, the record does not establish any functional impairments resulting from the right mandible fracture residuals.  VA treatment records associated with the claims file do not show that any VA clinician found that the Veteran was precluded from gainful employment due to his right mandible fracture residuals.  Although July 2008, January 2009, and April 2009 opinions speak to the Veteran's need for special monthly pension based on the need for aid and attendance, these opinions are primarily focused on the impairment resulting from nonservice-connected disabilities.  The February 2006 VA examination reports also do not suggest that the Veteran is precluded from securing and maintaining gainful employment as a result of his service-connected right mandible fracture residuals.

Thus, the record establishes that the Veteran is precluded from securing and maintaining substantially gainful employment due to nonservice-connected disabilities.  As noted above, consideration in a TDIU claim may not be given to a claimant's age or to any impairment caused by nonservice-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19 (2012).  While the Veteran's overall medical condition is clearly severe - as evidenced by VA's previous awards of nonservice-connected pension and special monthly pension based on housebound status - VA has previously adjudicated that many of those disabling medical conditions are not related to his military service.  Accordingly, TDIU is not warranted.

Because the record does not reflect that the Veteran is unemployable due solely to his service-connected right mandible fracture residuals, the preponderance of the evidence is against his claim for TDIU.  As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied.  See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to TDIU is denied.



____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs