Citation Nr: 1331676	
Decision Date: 10/02/13    Archive Date: 10/07/13

DOCKET NO.  09-47 981	)	DATE
	)
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia


THE ISSUES

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).


ATTORNEY FOR THE BOARD

Aaron Bill, Associate Counsel


INTRODUCTION

The Veteran, who is the appellant in this case, served on active duty from June 1972 to June 1975.

This appeal comes to the Board of Veterans' Appeals (Board) from an August 2009 rating decision which denied entitlement to TDIU.  The Veteran's notice of disagreement indicated that he was appealing the decision not to increase monthly disability pension.  The November 2009 statement of the case addressed the issue of entitlement to TDIU.  In several letters responding to congressional inquiry on behalf of the Veteran, the RO clarified that the issue to be adjudicated is entitlement to TDIU and that while the Veteran is in receipt of nonservice-connected pension benefits, no issue regarding the payment of that benefit was pending.  Therefore the issue of entitlement to TDIU is the only issue in appellate status.  

In reviewing this case, the Board has not only reviewed the Veteran's physical claims file, but also the file on the "Virtual VA" system to ensure a total review of the evidence.


FINDINGS OF FACT

1.  The Veteran does not have any service-connected disabilities.

2.  Entitlement to TDIU may not be granted as a matter of law.


CONCLUSIONS OF LAW

The criteria for entitlement to TDIU have not been satisfied. 38 U.S.C.A. § 1155, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§  3.159, 3.340, 3.341, 4.16, (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

Since the appellant's claim is being denied as a matter of law, the duty-to-notify-and-assist provisions of the Veterans Claims Assistance Act (VCAA) do not apply.  See Manning v. Principi, 16 Vet. App. 534 (2002) (VCAA has no effect on appeal limited to interpretation of law); see also 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. § 3.102, 3.156(a), 3.159, 3.326(a) (2013).  The VCAA does not apply because the issue presented is solely of statutory and regulatory interpretation and/or the claim is barred as a matter of law in that it cannot be substantiated.  See Smith v. Gober, 14 Vet. App. 227, 230 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002).  See also VAOPGCPREC 5-2004 (June 23, 2004).  

In cases such as this, where a claim cannot be substantiated because there is no legal basis for the claim, VA is not required to meet the duty to assist a claimant.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit).  

TDIU

The Veteran contends that TDIU is warranted in this case.  Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation.  See 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2013).  In reaching such a determination, 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).  Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by non-service-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2013).

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is 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 must be rated as 60 percent or more disabling, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more disabling, and sufficient additional service-connected disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a). 

In this case, however, the Veteran does not have any disabilities for which service connection has been established.  For this reason, he does not meet the percentage rating standards for individual unemployability benefits at 38 C.F.R. § 4.16(a), and no consideration to such benefits are available under 38 C.F.R. § 4.16(b).  Because the undisputed facts show that there is no service-connected disability, thus no legal basis upon which to consider the claim for TDIU, the claim is without legal merit, and must be denied.  See Sabonis, supra (stating that where the law is dispositive, the claim must be denied due to a lack of legal merit). 

Accordingly, entitlement to TDIU is dismissed.  As the law, and not the facts, determines the outcome of this claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1Vet. App. 49,  55 (1990).


ORDER

The claim for TDIU is denied.



____________________________________________
K. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs