Citation Nr: 1323907 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 07-25 828 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Evan M. Deichert, Counsel INTRODUCTION The Veteran served on active duty from February 1995 to December 2005. The matter before the Board of Veterans' Appeals (Board) did not originate from a decision by a Department of Veterans Affairs (VA) Regional Office (RO); rather, the Board determined in its November 2010 remand that the issue of entitlement to a TDIU had been raised by the record. On his June 2007 substantive appeal, the Veteran requested a hearing before a member of the Board. In June 2008, the Veteran withdrew his hearing request. In November 2010, the Board remanded the case for further development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. The Veteran is currently service-connected for six disabilities: instability of the right knee; a right knee disability with degenerative changes; left knee chondromalacia patella; residuals of a right ankle sprain; tinnitus; and bronchitis 2. The Veteran's service-connected disabilities do not render him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1154, 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and to Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. A December 2010 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (1). This letter notified the Veteran of regulations pertinent to a claim for entitlement to a TDIU, including how such a claim is established and the Veteran's and VA's respective duties for obtaining evidence. The claim was subsequently readjudicated, most recently in an August 2012 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice. See Shinseki v. Sanders, 556 U.S. 396 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield v. Nicholson, 444 F.3d at 1333-34. The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159(c)(2). VA examinations were conducted in February and March 2011; the Veteran has not argued, and the record does not reflect, that these examinations were inadequate for rating purposes. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). These examinations responded directly to the questions posed by the Board in its remand, and they contain sufficient information to make a decision on the Veteran's claim. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claim file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. 473, 486 (2006); Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009). II. Entitlement to a TDIU A TDIU rating may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more 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. The Veteran does not meet the schedular criteria for a TDIU. The Veteran is service-connected for six disabilities: instability of the right knee, rated at 20 percent; right knee disability with degenerative changes, rated at 10 percent; tinnitus, rated at 10 percent; left knee chondromalacia patella, rated at 10 percent; residuals of a right ankle sprain, rated as noncompensable; and bronchitis, rated as noncompensable. The Veteran's combined rating is 50 percent, below the schedular threshold for a TDIU. Despite the fact that the Veteran does not meet the schedular criteria, a TDIU may still be granted. If the claimant does not meet the schedular criteria yet the evidence still establishes that he is unable to secure and follow a substantially gainful occupation because of his service-connected disabilities, the Board may submit the matter to the Director, Compensation and Pension Service, for extraschedular consideration. 38 C.F.R. § 4.16(b). The Veteran underwent a VA examination in February 2011. With regard to his bronchitis, the examiner diagnosed him as suffering from recurrent bronchitis. She stated that, though the Veteran's bronchitis would result in increased absenteeism, it would not affect his ability to obtain or maintain employment. She noted that the Veteran stated that he is not claiming unemployabilty. She also noted that the Veteran was employed full-time as a tow truck driver, and that he had been in his current position for the preceding 1-2 years. With regard to the Veteran's musculoskeletal disabilities, the examiner noted that none of these disabilities (his two right knee disabilities, as well as his right ankle and left knee disabilities) would present any significant effects on his occupation. She noted that the Veteran would have difficulty walking long distances, but otherwise his disabilities would result in no effects on his daily activities. The Veteran underwent a VA audio examination in March 2011. After examining the Veteran, the examiner determined that the Veteran's tinnitus would have no significant effect on his occupation. In addendums of June 2011 and September 2011, the examiner stated that after reviewing the claim file, her opinion had not changed. She concluded that, given the longstanding and intermittent nature of the Veteran's tinnitus, that disability should have no effect on his ability to secure or follow a substantially gainful occupation. These examinations show that the Veteran's service-connected disabilities would not prevent him from securing or maintaining a substantially gainful occupation. Importantly, these examinations also show that the Veteran is currently employed. While the Veteran had previously complained that his service-connected disabilities prevented him from obtaining a job driving a truck, he is currently employed as a tow truck driver. The preponderance of the evidence is against the Veteran's claim for a TDIU; the schedular qualifications for consideration of a TDIU have not been met; there is no doubt to be resolved; and referring this matter to the Director, Compensation and Pension Service for extraschedular consideration is not warranted. ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs