Citation Nr: 1324732 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 02-04 605 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Evan M. Deichert, Counsel INTRODUCTION The Veteran served on active duty from February 1972 to February 1976, and from September 1978 to September 1982. He also had service with the U.S. Army Reserves and the National Guard of Texas until 1994. His personnel records indicate that he had periods of active duty for training and inactive duty for training from February 1988 to February 1989, from August 1992 to August 1993, and from August 1993 to July 1994. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision of January 2007 of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claim for a TDIU. The Veteran's case has been before the Board numerous times; previous decisions have addressed numerous other issues besides the Veteran's TDIU claim. After various grants and denials, the Veteran's TDIU claim is now the sole claim remaining on appeal. The Board has previously remanded the Veteran's claim in July 2008, September 2009, May 2011, and October 2012. Each remand instructed that the Veteran undergo an examination to determine whether his service-connected disabilities prevented him from securing and maintaining a substantially gainful occupation. The development ordered by the Board has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. The Veteran is currently service-connected for eight disabilities: scars of the forehead and right elbow; degenerative joint disease of the left wrist; traumatic arthritis of the right ankle; degenerative joint disease of the right knee; headaches; degenerative changes of the left shoulder; depression; and residuals of fracture of the third digit of the left hand. 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 March 2006 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 a July 2013 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). Over the course of his appeal, the Veteran has undergone numerous VA examinations; 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 contain information sufficient for the Board to decide 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 eight disabilities: scars of the forehead and right elbow, rated as 10 percent disabling; degenerative joint disease of the left wrist, rated as 10 percent disabling; traumatic arthritis of the right ankle, rated as 10 percent disabling; degenerative joint disease of the right knee, rated as 10 percent disabling; headaches, rated as 10 percent disabling; degenerative changes of the left shoulder, rated as 10 percent disabling; depression, rated as 10 percent disabling; and residuals of fracture of the third digit of the left hand, rated as noncompensably disabling. 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 June 2013. The Veteran stated that he is unemployed but volunteers at the VA. He contended that his various musculoskeletal conditions interfere with his ability to work, specifically mentioning his wrists, neck, back, and knees. Notably, the Veteran is not service-connected for his claimed neck or back disabilities. After examining the Veteran, the examiner concluded that the Veteran's service-connected headaches and scars "do not have any significant adverse impact on his functional capacity in the occupational environment." With regard to his various musculoskeletal disabilities, the examiner concluded that "these conditions would interfere with prolonged strenuous physical exertion and render an occupation as a manual laborer impractical." The examiner further opined that "a sedentary occupation is medically feasible for [the Veteran] and would not be contraindicated due to any of his service-connected conditions." The examiner summarized his conclusions, stating that more likely than not, the Veteran's service-connected conditions do not render him incapable of maintaining substantially gainful employment. None of the previous VA examinations found that the Veteran's service-connected disabilities would prevent him from securing or following a substantially gainful occupation. For instance, the examiner from a September 2008 VA examination concluded that the Veteran's medical conditions are stable and that none of them prevent him from being employed. A February 2010 VA examination concluded that the Veteran's neck and back (conditions for which he is not service-connected) would likely prevent him from being able to maintain any type of manual labor, but should not prevent him from maintaining gainful employment in a sedentary position. The only evidence in support of the Veteran's claim is his contentions that his service-connected disabilities prevent him from working. The Veteran, however, is not competent to offer an opinion regarding the effect of his service-connected disabilities on his employment outlook. Determining whether the Veteran's service-connected disabilities prevent him from securing or following a substantially gainful occupation requires specialized medical training that the Veteran does not have. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Further, in discussing his employment outlook, the Veteran has also mentioned non-service connected disorders, and these may not be considered in a TDIU decision. 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