Citation Nr: 1331308 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 07-20 941 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The Veteran served on active duty from May 1964 to July 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision from the Department of Veterans Affairs (VA), Regional Office (RO), in Nashville, Tennessee. This matter was previously before the Board in November 2010 and March 2012, at which time the TDIU issue was remanded for additional development. It is now returned to the Board. In March 2012, the Board also remanded increased rating claims for service-connected diabetes mellitus and left knee disabilities on a procedural basis. In this respect, the Veteran's representative's argument in a September 2009 Post-Remand Brief was interpreted as a timely filed notice of disagreement (NOD) to a June 2011 rating decision. The claims were remanded for issuance of a Statement of the Case (SOC) as required by Manlincon v. West, 12 Vet. App. 238 (1998). A review of Virtual VA paperless claims file, the Veterans Benefits Management System (VBMS) and the Veterans Appeal Control and Locator System (VACOLS) does not reflect that the Veteran has perfected his appeal with the submission of a substantive appeal. Thus, the Board has no jurisdiction over those claims at this time. See 38 C.F.R. §§ 20.300, 20.302. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. There are additional VA clinic records within Virtual VA which are not associated with the paper claims file. The RO has reviewed these records in the April 2013 supplemental SOC (SSOC). FINDINGS OF FACT 1. For the entire appeal period, the Veteran's service-connected diabetes mellitus, chronic renal insufficiency with hypertension, residuals of femur fracture, glaucoma with diabetic retinopathy, peripheral neuropathy of the right and left lower extremities, and erectile dysfunction meet the schedular requirements for a TDIU rating when the disability ratings for complications of diabetes mellitus are combined. 2. The Veteran's service-connected disabilities have not rendered him unable to secure or follow a substantially gainful occupation consistent with his employment history, educational attainment, and vocational experience for any time during the appeal period. CONCLUSION OF LAW The criteria for entitlement to TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.16(a), 4.25, 4.26 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Duty to Notify and the Duty to Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty 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) (2013). Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. The notification requirements are referred to as Type One, Type Two, and Type Three, respectively. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. The Veteran filed his application for TDIU benefits in May 2006. A pre-adjudicatory RO letter dated July 2006 fully satisfied the generic type of notice required in an increased rating claim. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In this respect, the Veteran was notified of the types of evidence deemed necessary to substantiate that his service-connected disabilities rendered him unable to secure and follow substantially gainful employment, the relative duties upon himself and VA in developing his claim, how VA determines disability ratings, and how VA determines an effective date of award. VA has a duty to assist a claimant in the development of the claim. This duty includes assisting the claimant in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). In this case, the RO obtained the Veteran's STRs and all relevant VA clinical records pertinent to the time periods at issue. There are no outstanding requests to obtain any additional VA records, or any private medical records for which the Veteran has identified and authorized VA to obtain on his behalf that are relevant to the limited issues being decided on appeal. The Board is not aware of any relevant evidence in the possession of the Social Security Administration. Additionally, the Board finds that sufficient medical evidence is of record to decide the claim. The Veteran was last afforded VA C&P examinations in January and February 2011, and those examination reports contain all findings necessary to decide the claim. Since that examination, the Board finds no credible lay or medical evidence suggesting an increased severity of service-connected disabilities to the extent that the findings in the January and February 2011 examination reports are not reflective of the current state of disability. As such, there is no duty to provide further medical examination on this claim. See VAOPGCPREC 11-95 (Apr. 7, 1995). The Board further finds substantial compliance with its prior remand directives in November 2010 and March 2012. In this respect, the RO afforded the Veteran the opportunity to identify any pertinent evidence in a November 2010 letter, associated current VA treatment records with the claims folder, provided medical examination and opinion in January and February 2011, provided the Veteran an SOC on increased rating claims for diabetes mellitus and left knee disabilities in April 2013, readjudicated the TDIU claim, and furnished the Veteran an SSOC in April 2013. Thus, substantial compliance has been demonstrated by the record. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a claimant has a right to compliance with prior Board remand directives). Overall, the Board finds that the evidence of record is sufficient to decide the claim being decided on appeal, and that there is no reasonable possibility that any further assistance would aid in substantiating this claim. Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Analysis The Veteran seeks to establish his entitlement to TDIU. He alleges that the combined effects of his service-connected diabetes mellitus, chronic renal insufficiency with hypertension, residuals of left femur and patella fracture, glaucoma with diabetic retinopathy, peripheral neuropathy of the lower extremities, and erectile dysfunction render him unable to secure and maintain substantially gainful employment. In particular, the Veteran reports that his service-connected disabilities prevent him from performing the type of intricate and detailed work requirements necessary for a computer-aided design draftsman (CAD). Total disability ratings for compensation 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: Provided, that if there is only one such disability, this disability shall be ratable as 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. §§ 3.340, 3.341, 4.16. For TDIU purposes, marginal employment is not to be considered substantially gainful employment. 38 C.F.R. § 4.17. Factors to be considered, however, will include the veteran's employment history, educational attainment and vocational experience. 38 C.F.R. § 4.16. When the requirements of 38 C.F.R. § 4.16(a) are not met, rating boards are required to submit to the Director, Compensation and Pension Service, for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a) . Id. Where a claimant does not meet the schedular requirements of 4.16(a), the Board has no authority to assign a TDIU rating under 4.16(b) and may only refer the claim to the C&P Director for extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1 (2001). The Veteran filed his TDIU claim on appeal on May 26, 2006. Effective May 26, 2006, the Veteran holds a combined 60 percent service-connected disability rating based upon the following: diabetes mellitus rated as 20 percent disabling; chronic renal insufficiency with hypertension rated as 30 percent disabling; residuals of femur fracture rated as 20 percent; glaucoma with diabetic retinopathy rated as 20 percent disabling; peripheral neuropathy of the right lower extremity rated as 10 percent disabling; peripheral neuropathy of the left lower extremity rated as 10 percent disabling; and erectile dysfunction rated as noncompensable. As chronic renal insufficiency with hypertension, glaucoma with diabetic retinopathy, and peripheral neuropathy of the lower extremities stem from the same service-connected etiology of diabetes mellitus, the disability ratings of these diseases may be combined for purposes of 38 C.F.R. § 4.16(a). See 38 C.F.R. § 4.16(a)(2). When diabetes mellitus and its complications are combined pursuant to 38 C.F.R. §§ 4.25 and 4.26, the Veteran meets the schedular requirements for a TDIU rating under 38 C.F.R. § 4.16(a) for the entire appeal period. In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the Court discussed the meaning of "substantially gainful employment." In this context, it noted the following standard announced by the United States Federal Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total "basket case" before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. However, in order to be granted TDIU, the Veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Veteran has an educational background of attending DeVry Institute, International Business Machines (IBM), and Dutchess Community College. See VA Form 21-526 received in November 1999. He has occupational experience as a television service worker and CAD draftsman. Id. He reports being laid off by IBM in 1995, and having worked as an independent CAD contractor thereafter. See Private medical report dated October 1999; VA Form 21-4138 received in June 2003. The Veteran describes his occupation as a CAD draftsman as requiring a high degree of accuracy, particularly requiring fine motor skills of his hands and a high degree of concentration. He reports that his earned income since 2000 has been $7,000 or less due to an inability to work a full day. The symptoms which interfere with his work include headaches with blurred vision, eye burning, concentration difficulty due to pain, back pain, severe neck pain, ear aches, hearing loss, loss of feeling on skin surface, burning feeling in his feet and neck, erectile dysfunction, intermittent left knee pain, disorientation, gastrointestinal upset, and "varying degrees of pain from repetitive motions of head, neck, and right arm as required while performing CAD work." He has also reported that his diabetes mellitus makes him irritable, tired, and unable to concentrate. See VA Form 21-4138s received in February 2000 and May 2003, VA examination report dated May 2003, written statements received in April 2001 and July 2006, and VA Form 9 received in July 2007. The medical evidence reflects that the Veteran's diabetes mellitus is manifested by fluctuating blood sugar levels, the need for insulin, a specialized diet, and episodes of hypoglycemia. His diabetes mellitus has been described as resistant to insulin. See VA clinic record dated August 2003. More recently, his diabetes mellitus was deemed to restrict him from performing prolonged aerobic exercises. See VA examination report dated February 2011. The Veteran describes subjective report of decreased visual acuity when his blood sugar levels fluctuate. See VA clinic records dated August 2000, October 2001, and April 2003. He has further reported daily eye strain which can be decreased with less computer use. See VA clinic record dated October 2006. He has been diagnosed with non-proliferative diabetic retinopathy medically described as mild to moderate in degree. See VA clinic records dated October 2007, August 2009, and January 2013. He has also been diagnosed with incipient cortical cataracts and glaucoma. See Private ophthalmology examination report dated August 2006. The Veteran's additional diabetes mellitus complications include chronic renal insufficiency with hypertension, peripheral neuropathy of the right and left lower extremities, and erectile dysfunction. The Veteran also has a history of service-connected residuals of fracture of the left femur and patella. He has reported episodes of severe knee pain with stiffness and swelling, and experiencing knee pain with any activity. See VA clinic records dated December 2010, January 2011, and September 2012. A December 2010 VA x-ray examination was interpreted as showing degenerative changes with chondrocalcinosis and ossific bodies projecting in the suprapatellar fossa which may represent loose bodies. The Veteran uses a crutch to assist in ambulation, and has been issued a double-hinged knee brace due to complaint of increased symptoms with weightbearing and associated locking. The Veteran's clinic records also reflect a history of nonservice-connected disability involving diverticulitis status-post sigmoid colectomy in 1997. He was found to have microcytic anemia in 2009. See VA clinic record dated May 2009. A VA esophagogastroduodenoscopy (EGD) in January 2010 was interpreted as showing mild antral erythema. The Veteran has a history of cervical spine disability status-post anterior cervical discectomy of C5-6 with donor iliac crest graft fusion. He has reported neck pain of 8/10 severity with activities such as working outside clearing branches and sitting at the computer for prolonged periods of time. See VA clinic records dated December 2009, June 2010, and January 2011. A cervical spine magnetic resonance imaging (MRI) scan in December 2009, to investigate the Veteran's complaint of right hand numbness, was significant for reversal of normal lordotic curvature as well as degenerative disc changes with myelopathy. The Veteran has a history of lumbar spine disability status-post left L5-S1 microdiscectomy in October 1990, and status-post lumbar laminectomies and foraminotomies of left L4-5 and L5-S1 in January 1991. At times, the Veteran's lumbar spine disability has been productive of pain of 4-5/10 severity with forward flexion limited to 40 degrees. See VA clinic records dated July 2005 and August 2007. A July 2006 MRI of the lumbar spine was interpreted as showing loss of height with diffuse circumferential disc bulge at L1-L2 with mild encroachment on the anterior aspect of the thecal sac and mild spinal stenosis; loss of height and desiccated signal changes of L4-L5 with slight flattening of the anterior aspect of the thecal sac causing mild posterior bulge, mild facet degenerative changes and mild spinal stenosis; mild degenerative changes of L4-L5; and left paracentral focal disc bulge with probable small annular tear at L5-S1 with slight posterior displacement in the descending left-sided nerve root, moderate facet degenerative changes and mild to moderate bilateral neural foraminal narrowing. The Veteran has also reported intermittent periods of dizziness with no clear cause identified. See VA clinic records dated November 2008. A VA clinician has commented that the Veteran may manifest ocular migraines causing a kaleidoscope effect in vision. See VA clinic record dated April 2006. In March 2009, the Veteran was treated for cerebrovascular accident (CVA) with left-sided numbness which resolved without residuals. See Parkwest Medical Center records dated March 2009 and VA clinic record dated May 2009. A VA echocardiogram performed in May 2009 showed normal left ventricular systolic function, an ejection fraction of 55-60 percent, early diastolic dysfunction, and mild mitral and aortic valve sclerosis without sclerosis. With respect to functional impairment, a July 2006 VA examination report noted that the Veteran's lower extremities were significant for sensory abnormality in a stocking distribution without motor loss consistent with diabetic neuropathy. The examiner opined that the Veteran's diabetes mellitus prevented him from shopping, exercise, and sports; had severe effects on activities such as recreation; had moderate effects on driving; had mild effects on chores and traveling; and no effects on feeding, bathing, dressing, toileting, and grooming. The examiner opined that the Veteran "should be fit for sedentary occupation." Another VA examiner opined that the Veteran's erectile dysfunction resulted in mild effects on chores, shopping, exercise, sports, recreation, and traveling, but no effects on other activities. Additionally, a VA examiner in July 2006 opined that the Veteran's lumbar spine disability prevented activities such as exercise, sports, and recreation; had severe effects on chores and shopping; had moderate effects on traveling; and had mild effects on bathing, dressing, and toileting. The Veteran underwent VA general medical examination in January 2011 to determine whether his service-connected disabilities, either singly or combined, rendered him unable to secure or follow a substantially gainful employment. At that time, the Veteran described a progressive worsening of his diabetes mellitus. He reported symptoms of frequent urination and dysuria which he attributed to renal failure. He had a history of uncontrolled hypertension with CVA in 2009 that had resolved without residuals. The Veteran described fracture residuals of his left femur and patella as resulting in left leg and knee pain with reduced range of motion. He had standing limitations to 30 minutes, and could only walk 1/4 of a mile. He self-described the functional impairment due to his knee disability as "moderate" in degree. The Veteran also reported numbness and tingling in the lateral aspect of his feet, a reduced ability to obtain and retain an erection, and chronic low back pain which radiated to his left lower extremity. On examination, the Veteran demonstrated an antalgic gait and walked with crutches. There were positive findings for 4/5 strength of the lower extremities with decreased vibratory, pain, and light touch sensation. The left knee demonstrated painful motion with crepitation. On repetitive testing, the left knee demonstrated flexion from 12 to 78 degrees and extension from 78 to 10 degrees. There was guarding of the lumbosacral spine. The examiner found no impaired strength or dexterity of the hands with a normal sensory examination of the upper extremities. However, there was 4/5 strength with movement of the elbows, wrists, finger, thumbs, hips, and knees. The Veteran's serum chemistry profiles in 2009 and 2010 did not show laboratory evidence of chronic renal insufficiency. With respect to service-connected disabilities, the Veteran's diabetes mellitus was manifested by episodes of hypoglycemia or ketoacidosis and an inability to perform prolonged aerobic exercises. His hypertension caused problems with lifting, carrying, and lack of stamina which prevented exercise and sports; had moderate effects on chores and recreation; and had mild effects on travel and diet. His diabetic peripheral neuropathy of the lower extremities had moderate effects on sports and recreation; and mild effects on dressing, grooming, travel, and driving. His renal insufficiency was not shown on laboratory testing and had no effects on his work or activities of daily living. The only effects of erectile dysfunction concerned the relationship with his wife. The left knee disability caused significant occupational effects due to decreased mobility, problems with lifting, decreased strength, and pain. His left knee disability prevented sports; had severe effects on chores and exercise; had moderate effects on shopping, recreation, and traveling; and mild effects on bathing, dressing, and toileting. The left femur disability resulted in decreased mobility and pain and had moderate effects on chores, exercise, sports, recreation and traveling; and had mild effects on shopping, bathing, and dressing. With respect to nonservice-connected disabilities, the examiner diagnosed intervertebral disc syndrome (IVDS) of the lumbar spine with left sciatica which had severe effects on activities such as sports and exercise; moderate effects on chores and recreation; and mild effects on travel, driving, and shopping. The Veteran had cervical spine IVDS which had severe effects on activities such as sports and exercise; moderate effects on chores and recreation; and mild effects on driving and travel. On review of the entirety of the record, the VA examiner opined that the Veteran's service-connected disabilities of hypertension, residuals of fracture of the left femur and patella, diabetes mellitus, peripheral neuropathy of the lower extremities, and erectile dysfunction prevented the Veteran from performing any physical occupations due to pain, reduced joint motion, joint stiffness, crutches, lack of stamina, the need for daily Insulin, occasional hypoglycemic episodes, and a requirement for a special diet. However, the examiner found that it was at least as likely as not that the Veteran could perform his usual occupation and all sedentary occupations. On VA eye examination in February 2011, the Veteran described eye symptoms of diplopia, blurring, redness, and growing eyelashes. The examiner found visual field defects in both eyes with a generalized constriction of approximately 20 degrees with 360 degrees possible inferior to the nasal step. There was corrected 20/25 distance visual acuity bilaterally, and corrected near visual acuity of 20/30 bilaterally. The examiner diagnosed primary open angle glaucoma (POAG) of both eyes which was attributed as a complication of diabetes mellitus. The examiner stated that, despite his POAG and diabetes mellitus, the Veteran still had correctable vision to 20/25 in both eyes (OU). The examiner then stated that, even with the visual field (VF) restriction, the Veteran would be able to be employed in a sedentary or office setting. The visual field deficit would affect employment requiring commercial driving or quick decisions, but his visual status would not affect his ability to perform office jobs. The Board finds, by a preponderance of the evidence, that the Veteran's service-connected disabilities have not rendered him unable to secure or follow a substantially gainful occupation consistent with his employment history, educational attainment, and vocational experience for any time during the appeal period. At the outset, the Board notes that the Veteran's arguments regarding his inability to perform substantially gainful employment cites many nonservice-connected factors. For example, the Veteran has cited symptoms of headaches with blurred vision, back pain, severe neck pain, ear aches, hearing loss, gastrointestinal upset, and "varying degrees of pain from repetitive motions of head, neck, and right arm as required while performing CAD work" as factors in his unemployability. See VA Form 21-4138s received in February 2000 and May 2003, VA examination report dated May 2003, written statements received in April 2001 and July 2006, and VA Form 9 received in July 2007. However, the Board may only consider the effects of service-connected disabilities in a TDIU determination. 38 C.F.R. § 4.16(a); Hatlestad, 5 Vet. App. at 529. Here, the VA examiners in January and February 2011 described the Veteran's functional impairment due to service-connected disabilities to include episodes of hypoglycemia with an inability to perform prolonged aerobic exercises, lack of stamina, decreased mobility, decreased strength and pain of the lower extremities, limitations with lifting and carrying, and decreased visual acuity with visual field constriction. The February 2011 VA examiner further noted that the Veteran's visual deficit would preclude commercial driving and making quick decisions. These examiners separately described the overall functional impairment with activities of daily living caused for each service-connected disability and rendered the opinion that the combined effects of service-connected disabilities did not render the Veteran unable to obtain substantially gainful employment in a sedentary occupation. On the other hand, the only evidence suggesting that the Veteran's service-connected disabilities, when considered alone, render him unable to perform substantially gainful employment is the self-diagnosis by the Veteran himself. His report of significant limitations due to service-connected disabilities is credible and consistent with the medical evidence of record. His allegations are also consistent with his combined disability ratings during the appeal period - 60 percent effective April 22, 2002, 70 percent effective March 25, 2003, and 80 percent effective January 6, 2011. However, the Veteran also cites multiple nonservice-connected factors as contributing to his disability, to include the effects his cervical spine disability has on specific aspects of his chosen profession as a CAD draftsman, such as working prolonged periods of time on his computer as well as his need for fine hand skills. Overall, the Board finds that the opinions of the VA examiners in January and February 2012 hold substantially more probative weight than the Veteran's personal opinion, as these examiners possess greater training and expertise than the Veteran in evaluating the occupational effects of diseases and disabilities. Additionally, these examiners carefully considered the functional effects of all service-connected and nonservice-connected disabilities, and rendered an opinion with consideration only to the service-connected disabilities. The Veteran's belief is premised, in part, on nonservice-connected factors which the Board may not consider in a TDIU determination. In so finding, the Board is cognizant of the Veteran's argument that he would be making more money if not for his service-connected disabilities and/or that he can no longer perform his chosen profession as a CAD draftsman. In general, VA's Rating Schedule is "based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations." 38 U.S.C.A. § 1155. The practical effect of this method of evaluation is that some Veterans receiving benefits may experience a greater or lesser impairment of earning capacity than average for their disability. Thun v. Peake, 22 Vet. App. 111 (2008). Here, the Veteran possesses significant computer skills through his education at DeVry Institute, IBM, and Dutchess Community College with his practical experience as a CAD draftsman for many years. Thus, he possesses the educational and technical skills to perform sedentary work. The VA examiners in January and February 2012 found that the Veteran possessed the physical and mental capabilities to work at a sedentary occupation. Thus, consistent with the framework discussed in Moore, the Board finds that the credible lay and medical evidence demonstrates that the Veteran's service-connected disabilities do not prevent him mentally or physically from performing substantially gainful employment in sedentary occupation which is practically within reach of his educational and vocational background. The Board has also considered the argument from the Veteran's representative that the Veteran's current combined 80 percent rating would render him unfit for military service and, thus, the Veteran is not fit for duty in the civilian world. The military standards of fitness have no bearing on VA's Ratings Schedule which, again, is based upon the average impairments of earning capacity resulting from injuries in civil occupations. 38 U.S.C.A. § 1155. In summary, the Board concludes that the evidence of record is against the Veteran's claim of entitlement to TDIU. As there is not an approximate balance of evidence, the "benefit-of-the-doubt rule" enunciated in 38 U.S.C.A. § 5107(b) is not applicable. See Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). ORDER The claim of entitlement to TDIU is denied. ____________________________________________ JENNIFER HWA Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs