Citation Nr: 1636397 Decision Date: 09/16/16 Archive Date: 09/27/16 DOCKET NO. 11-14 491 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION The Veteran represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD Nicole L. Northcutt, Counsel INTRODUCTION The Veteran served on active duty from May 1982 to May 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia (RO). The August 2009 rating decision adjudicated three increased rating claims, and in a February 2014 decision, the Board determined that a claim for entitlement to a TDIU had been implicitly raised as part and parcel of the Veteran's appeal of these increased rating claims. Accordingly, while the Board denied these three increased rating claims (for left ankle and bilateral wrist disabilities), the Board remanded the claim for a TDIU for development. Since this February 2014 Board decision, the Veteran has reasserted the three increased rating claims, which were last adjudicated by a March 2016 statement of the case. However, as the Veteran did not perfect an appeal of these claims, they are not within the purview of this appeal. Additional evidence was received subsequent to the most recent supplemental statement of the case issued in February 2016. As the evidence is not pertinent to the claim on appeal, a remand for RO consideration of the evidence is not necessary. See 38 C.F.R. § 20.1304(c) (2015). Incidentally, the Board acknowledges that the Veteran's claims file contains a June 2016 notification of his death. Rather confusingly, the notification form indicates that the Veteran was the reporting party. However, a subsequent note to the Veteran's file clarifies that this notification was erroneous, and subsequent statements of record, signed by the Veteran, underscore that the June 2016 notice was a miscommunication. FINDING OF FACT The Veteran has been gainfully employed. CONCLUSION OF LAW The criteria for the award of a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.16 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist VA has a duty to provide notice of the information and evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2015). A standard May 2009 letter satisfied the duty to notify provisions for the increased rating claims underlying the TDIU claim. Another standard letter issued in May 2015, pursuant to the Board's remand directives, satisfied the duty to notify provisions specifically for the TDIU claim. VA also has a duty to provide assistance to substantiate a claim. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c). The Veteran's service treatment and personnel records have been obtained. Post-service VA treatment records have also been obtained. The Veteran was provided with several VA examinations during the pendency of his appeal of the increased rating claims from which his TDIU stems, all of which contain various findings related to the effect of his service-connected wrist and ankle disabilities on his ability to perform tasks related to his current employment. However, further development of medical evidence is not required, as the record reflects that the Veteran is indeed currently gainfully employed, thereby negating the need to consider such medical evidence. Accordingly, no further development of the record is required, and the Board concludes that VA's duty to assist has been met. Entitlement to a TDIU Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is 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, such disability shall be ratable as 60 percent or more, and 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 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.16(a) (2015). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19 (2015). There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2015). As referenced above, when last reviewing this appeal in February 2014, the Board determined that a claim for a TDIU had been raised by the record, as part and parcel of the Veteran's increased rating claims on appeal, based on statements made by the Veteran in 2009 that he was unemployed and was having difficulty finding employment due to the physical limitations caused by his service-connected ankle and wrist disabilities. Subsequent evidence of record, including VA examinations in December 2014, indicates that the Veteran has full-time employment as a floor technician/custodian. A February 2014 record reflects this type of employment for about five years, which spans the rating period of the claim. Additionally, there is no indication that the employment is marginal in nature. Moreover, earlier evidence prior to the claim reflects employment as a forklift operator. Furthermore, the Veteran failed to complete and return the VA TDIU application provided to him in conjunction with his May 2015 notice letter. Notably, completing the application would require the Veteran to provide the date on which he became unemployed. Furthermore, the Veteran has not otherwise indicated that he is not currently employed. In sum, as the record reflects that the Veteran is currently gainfully employed and has been during the claim process, it is not shown that service-connected disabilities preclude his ability to secure and follow substantially gainful employment. As the preponderance of evidence is against the Veteran's claim seeking a TDIU, there is no benefit of the doubt to be resolved. See 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2015). Accordingly, a TDIU is not warranted. ORDER A TDIU is denied. ____________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs