Citation Nr: 1422935 Decision Date: 05/20/14 Archive Date: 05/29/14 DOCKET NO. 11-14 660 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to a total disability rating based on individual unemployability due to a service-connected disability (TDIU). ATTORNEY FOR THE BOARD L. Buchs, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from October 1985 to October 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, in which the RO denied TDIU. The Board remanded the claim in September 2013 to provide the Veteran with a Board hearing. The remand instructions were completed, and the matter has properly been returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has reviewed the Veteran's physical claims file and both the Veterans Benefits Management System and "Virtual VA" files to ensure a complete review of the evidence in this case. FINDING OF FACT The Veteran is not service connected for any disability. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.15, 4.16 (2013) REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and to Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2013). Notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Such notice also must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004). Adequate notice was provided to the Veteran in September 2008, prior to the initial adjudication of the claim in November 2008. The Veteran was notified what information and evidence is needed to substantiate a claim for a TDIU, as well as of VA and the Veteran's respective duties for obtaining evidence. The notice letter also addressed VA's practices in assigning disability evaluations and effective dates for those evaluations. As noted above, the Veteran's claim was remanded in September 2013 to provide him with an opportunity to testify at a Board hearing. The Veteran did not appear for the Board hearing scheduled for January 2014. The Board notes the November 2013 letter of notice for the scheduled January 2014 Board hearing was sent to the address provided by the Veteran in his April 2013 request for a new hearing. Therefore, 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). VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A. TDIU The Veteran seeks a total disability rating based on individual unemployability due to service-connected disability (TDIU). VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from obtaining or maintaining "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. § 4.16 (2013). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2013). If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341 (2013). In this case, the Veteran is not service-connected for any disability. Therefore, it necessarily follows that the preponderance of evidence is against finding that he is unable to secure or follow substantially gainful employment as a result of a service-connected disability. Accordingly, his TDIU claim must be denied. ORDER A total disability rating based on individual unemployability is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs