Citation Nr: 21062336 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 15-12 395 DATE: October 7, 2021 ORDER As new and material evidence sufficient to reopen the previously denied claim for service connection for a bilateral hip disorder has not been received, the application to reopen this issue is denied. As new and material evidence sufficient to reopen the previously denied claim for service connection for gastroesophageal reflux disease (GERD) has not been received, the application to reopen this issue is denied. As new and material evidence sufficient to reopen the previously denied claim for service connection for ischemic heart disease (IHD) (previously claimed as cardiovascular disease, congestive heart failure, and myocardial infarction) has not been received, the application to reopen this issue is denied. Service connection for a gastrointestinal disorder other than GERD (previously claimed as bowel resection) is denied. Service connection for a sinus disorder is denied. Service connection for a low back disorder is denied. A total disability based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDINGS OF FACT 1. An unappealed December 1981 rating decision denied service connection for a bilateral hip injury based essentially on a finding that the Veteran had not received any treatment for the hips in service; a final August 2004 Board decision denied his most recent attempt to reopen such claim. 2. A final Board decision in August 2004 denied service connection for IHD and GERD based essentially on findings that neither disability had their onset in service nor were they related to the Veteran's service; it was also not shown that the Veteran's IHD manifested within one year of his separation from service. 3. Evidence received since the August 2004 Board decision does not relate to an unestablished fact necessary to substantiate the claims for service connection for a bilateral hip disorder, IHD, or GERD, nor does it raise a reasonable possibility of substantiating the claims. 4. The preponderance of the evidence is against a finding that a gastrointestinal disorder (other than GERD) manifested in service, or within one year of the Veteran's separation from service, and/or is otherwise shown to be related to service. 5. The preponderance of the evidence is against a finding that the Veteran's current sinus disorder manifested within one year of the Veteran's separation from service or is otherwise shown to be related to service. 6. The preponderance of the evidence is against a finding that the Veteran's low back disorder manifested in service, within the one-year presumptive period, or is otherwise related to service. The evidence reasonably establishes that the Veteran had a congenital back disorder that did not result in disability apart from the congenital defect due to any superimposed injury. 7. The Veteran does not currently have any service-connected disabilities. CONCLUSIONS OF LAW 1. The August 2004 Board decision declining to reopen the claim of service connection for a bilateral hip disorder and denying service connection for IHD and GERD is final. 38 U.S.C.§ 7104; 38 C.F.R.§§ 3.104, 20.302, 20.1103. 2. New and material evidence has not been received to reopen the claims for entitlement to service connection for a bilateral hip disorder, IHD, and GERD. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for a gastrointestinal disorder other than GERD have not been met. 38 U.S.C. § 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 4. The criteria for service connection for a sinus disorder have not been met. 38 U.S.C. § 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 5. The criteria for service connection for a low back disorder have not been met. 38 U.S.C. § 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306, 3.309, 4.9. 6. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1980 to December 1980. In October 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript is of record. In a decision issued in July 2018, the Board, in pertinent part, declined to reopen the claims for service connection for bilateral hip disorders, IHD, and GERD. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In February 2020, the Court issued a Memorandum Decision vacating the Board's July 2018 decision as indicated above and remanding the matters on appeal for adjudication consistent with the instructions outlined in the Memorandum Decision. Specifically, the Court instructed that the Board should allow the Veteran to submit a request for correction of any perceived errors in the October 2017 Board hearing transcript in accordance with the procedures specified in 38 C.F.R. § 20.714. In consideration of the February 2020 Memorandum Decision, the Veteran was mailed a March 2021 letter requesting that he provide a response within 30 days to seek correction of any perceived errors in the October 2017 hearing transcript. A copy of the transcript was provided with that correspondence. No response was received. Accordingly, the Board finds that the requirements of 38 C.F.R. § 20.714 have been met and no further development is necessary. In the July 2018 decision, the Board also remanded the issues of entitlement to service connection for a gastrointestinal disorder other than GERD, a low back disorder, and a sinus disorder and entitlement to a TDIU. The Board requested that the Veteran be scheduled for VA examinations in conjunction with his claims for service connection to address the etiology of these claimed conditions. The Agency of Original Jurisdiction (AOJ) scheduled the Veteran for VA examinations. However, the Veteran declined the examinations. VA regulations provide that where entitlement to a benefit cannot be established without an examination and the Veteran fails to report to a VA examination without good cause, the claim will be decided based on the evidence of record. 38 C.F.R. § 3.655(a), (b). Good cause includes the illness or hospitalization of a claimant, death of a claimant or a member of the claimant's family, and other similar circumstances. 38 C.F.R. § 3.655(a). As the Veteran declined and did not attend the VA examinations and did not otherwise provide good cause, the Board must proceed to adjudicate the Veteran's claims based on the other evidence of record. The Board also notes that the Veteran indicated he was receiving medical treatment outside VA. See April 2018 Correspondence. In consideration of this, the Veteran was mailed March 2019 and July 2019 letters requesting that he return VA Form 21-4142, Authorization to Disclose Information, and VA Form 21-4142a, General Release for Medical Provider Information, so that VA could obtain treatment information relevant to his claim. However, the Veteran did not respond to either request. Thus, while VA has a statutory duty to assist in developing evidence pertinent to a claim, to include obtaining relevant private treatment records, the Board recognizes that the duty to assist is not a one-way street and the Veteran also has a duty to assist and cooperate with VA in developing evidence. See Wood v. Derwinski, 1 Vet. App. 190 (1991). Accordingly, the Board finds that the duty to assist is satisfied in this regard and additional development is not required. New and Material Evidence A claim that has been denied in an unappealed Regional Office (RO) decision or an unappealed Board decision may not then be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Board has jurisdictional responsibility to determine on its own whether there is new and material evidence to properly reopen a service-connection claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38U.S.C.§§5108, 7105(c)); see also Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); VAOPGCPREC 05-92. The submission of "new and material" evidence is a jurisdictional prerequisite to the Board's review on the merits of a previously-denied claim. In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether there is new and material evidence sufficient to reopen the previously denied claim for service connection for a bilateral hip disorder. In September 1981, the RO denied service connection for a bilateral hip disorder. The basis for the denial was that the "medical records [were] negative as to any complaint or treatment for hip injury." The Veteran did not appeal that denial or submit new and material evidence within one year of that decision. Therefore, it became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(a), (b). Subsequently, the Veteran attempted to reopen that claim. In August 2004, the Board issued a decision upholding the RO's denial finding that new and material evidence had not been submitted to reopen the claim. Specifically, the Board found that the additional evidence submitted "[did] not include evidence which shows that the Veteran had disease or injury of the hips during service." See August 2004 Board Decision. In July 2011, the Veteran submitted his current claim for service connection for a bilateral hip disorder. See July 2011 VCAA Notice Acknowledgement. Such claim has been construed as a request to reopen his previously denied claim for a bilateral hip disorder. The pertinent evidence of record at the time of the August 2004 Board decision included the Veteran's service treatment records (STRs), VA and private treatment records, the Veteran's various lay statements, and an August 2003 hearing transcript. The evidence received since the August 2004 Board decision includes additional VA and private treatment records, the Veteran's lay statements regarding hip pain, and an October 2017 hearing transcript. While this evidence is new because it was not previously associated with the claims file, this evidence is not material because it does not relate to an unestablished fact necessary to substantiate the claim on appeal. In relevant part, while this evidence shows the Veteran's description of symptoms of hip pain, there is otherwise no evidence that his hips caused functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Therefore, this additional evidence does not establish competent evidence of a current hip disability and does not otherwise provide a nexus to the Veteran's service. The Board acknowledges that, while the Veteran's has provided lay statements and testimony regarding his bilateral hip disorder, these statements are cumulative of the statements he previously submitted in support of his claim. Additionally, the Board emphasizes that, while the Veteran is competent to report current symptoms, he is not competent to diagnose a chronic bilateral hip disorder or opine as to its etiology as this requires medical training and imaging studies. Davidson v. Shinseki, 81 F.3d 1313 (Fed. Cir. 2009). Likewise, as no competent new and material evidence has been received since the final disallowance of the claim to show that the Veteran has a current bilateral hip disorder that is related to his service, the Board finds that new and material evidence has not been received and the claim for service connection for a bilateral hip disorder is not reopened. 2. Whether there is new and material evidence sufficient to reopen the previously denied claim for service connection for GERD. In August 2004, the Board denied service connection for GERD. The basis of the denial was that there was no chronic gastrointestinal disease during service and there were no complaints, findings, treatment, or diagnosis of a gastrointestinal disability for approximately 16 years. Thus, the Board found that the Veteran's "GERD was not manifest during service[,] nor [was] it related to service." That decision is final. 38 U.S.C. § 7104; 38 C.F.R. § 3.156. In July 2011, the Veteran submitted his current claim for service connection for GERD. Such claim has been construed as a request to reopen his previously denied claim for GERD. The pertinent evidence of record at the time of the August 2004 Board decision included the Veteran's STRs, VA and private treatment records, the Veteran's various lay statements, and an August 2003 hearing transcript. This evidence establishes that the Veteran had an in-service report of experiencing bloody stools and diagnosis of functional bowel syndrome, and diagnosis of GERD in 2000. See November 1980 STRs and September 2000 VA Treatment records. The evidence received since the August 2004 Board decision includes additional VA and private treatment records, the Veteran's various lay statements, and an October 2017 hearing transcript. While this evidence is new because it was not previously associated with the claims file, this evidence is not material because it does not relate to an unestablished fact necessary to substantiate the claim on appeal. In pertinent part, this evidence does not otherwise establish a nexus between the Veteran's current GERD and his active duty service. The Board acknowledges the Veteran's October 2017 testimony that suggests his GERD is related his previous bowel resection. However, this is cumulative of statements he previously submitted in support of his claim. Although, the Board must presume the credibility of the Veteran's reported history, the Board is not obligated to presume the Veteran's competency. See Justus v. Principi, 3 Vet. App. 510 (1992). Here, the Veteran is not competent to opine as to medical etiology or render medical opinions. Barr, 21Vet. App.at 303. Thus, his statement as to the cause of his GERD, whether the specific condition is related to his previous bowel resection, cannot be accepted as competent evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1377(Fed.Cir.2007). Therefore, the Veteran has not provided competent evidence that raises a reasonable possibility of substantiating the claim for service connection for GERD and his statements are therefore not material evidence sufficient to reopen the claim. Accordingly, as the Veteran has not provided competent evidence that raises a reasonable possibility of substantiating his claim for service connection for GERD, his request to reopen that claim must be denied. 3. Whether there is new and material evidence sufficient to reopen the previously denied claim for service connection for IHD. In August 2004, the Board denied service connection for a cardiovascular disability. The basis of the denial was that "[t]he competent evidence of record does not establish that the [V]eteran's post-service diagnoses of angina, hypertension, coronary artery disease, and myocardial infarction due to valve abnormality are related to service[] and [n]o cardiovascular disease or injury was manifest during service or within the first post-service year." That decision is final. 38 U.S.C. § 7104; 38 C.F.R. § 3.156. In July 2011, the Veteran submitted his current claim for service connection for IHD. Such claim has been construed as a request to reopen his previously denied claim for a cardiovascular disability. The pertinent evidence of record at the time of the August 2004 Board decision included the Veteran's STRs, VA and private treatment records, the Veteran various lay statements, and an August 2003 hearing transcript. These records revealed that the Veteran had a myocardial infarction in 1987 due to valve abnormality. See February 1999 VA Treatment records. Subsequently, angina, hypertension, and possible coronary artery disease were also demonstrated. See id. The evidence received since the August 2004 Board decision includes additional VA and private treatment records, the Veteran's various lay statements, and an October 2017 hearing transcript. While this evidence is new because it was not previously associated with the claims file, this evidence is not material because it does not relate to an unestablished fact necessary to substantiate the claim on appeal. In pertinent part, this evidence is cumulative of evidence previously submitted to show that the Veteran has a heart disorder and it does not otherwise establish a nexus between his current heart disorder and his active duty service. The Board acknowledges the Veteran's October 2017 testimony that his IHD began during an in-service incident when he passed out in front of the battalion. This evidence, however, is not new as it is redundant of the Veteran's previous August 2003 hearing testimony. Additionally, while the Board must presume the credibility of the Veteran's reported history, the competency of the Veteran to opine as to the etiology of the claimed disability is not presumed. Justus, 3 Vet. App.at 510. Thus, to the extent that the Veteran's statements indicate that his heart disorder began during active service or is related to his active service, as a lay person, he is not competent to render such an opinion. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Grover v. West, 12 Vet. App. 109, 112 (1999). Thus, as the Veteran has not provided competent evidence that raises a reasonable possibility of substantiating his claim for service connection for a heart disorder, his request to reopen the claim for service connection for a heart disorder must be denied. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id. In addition, service connection for certain chronic diseases, including arthritis, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Service connection for congenital or developmental defects is precluded by VA regulation. 38 C.F.R. §§ 3.303(c), 4.9. Service connection for a congenital defect can only be established if the congenital defect was subject to a superimposed disease or injury during military service that resulted in disability apart from the congenital or developmental defect. See VAOPGCPREC 82-90 (July 18, 1990). Although all of the evidence must be reviewed, only the most salient evidence must be discussed. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Persuasive or unpersuasive evidence must be identified, however, and reasons must be provided for rejecting favorable evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994), Wilson v. Derwinski, 2 Vet. App. 614 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Both medical and lay or non-medical evidence may be discounted in light of its inherent characteristics and relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 53. 4. Entitlement to service connection for a gastrointestinal disorder other than GERD (previously claimed as bowel resection) and a sinus disorder. The Veteran seeks service connection for gastrointestinal and sinus disorders. The Veteran's treatment records reflect current problems with his sinuses and symptoms of reflux (which the Veteran attributes to his bowel resection). See October 2017 Hearing Transcript. STRs also reflect that the Veteran had a functional bowel syndrome in November 1980 and sinusitis in June 1980. Likewise, the Board finds that the evidence reasonably establishes that the first two elements have been met for entitlement to service connection for a gastrointestinal disorder other than GERD and a sinus disorder. Thus, the remaining issues for consideration are whether a nexus exists between these disorders and the Veteran's active duty service. As discussed in the Introduction, in order to address the etiology of the Veteran's gastrointestinal and sinus disorders, the Board remanded the Veteran's claims and requested that VA examinations be performed. However, the record reflects that the Veteran declined the scheduled examinations and did not appear for any of the scheduled examinations. See August 2019 VA Form 21-2507a Request for Physical Examination. The medical evidence and opinions which would have been obtained from those examinations would have been helpful in the adjudication of this claim. The Veteran has not provided any good cause for why he declined the scheduled examinations. The Board emphasizes that VA's duty to assist in the development and adjudication of a claim is not a one-way street. Wood, 1 Vet. App. at 193. Rather, the Veteran must also cooperate in obtaining the evidence necessary to adjudicate his claim, including attending VA examinations. See 38 C.F.R. § 3.159(c). There is also no evidence that the Veteran's current gastrointestinal disorder (other than GERD) and sinus disorder manifested in service or to a compensable degree in the first year following his separation from active duty service and continued since. In fact, neither the Veteran nor his representative has alleged (nor have they submitted competent evidence to show) that the Veteran has suffered from these disorders continuously since service. 38 C.F.R. § 3.303(b). Consequently, service connection for a gastrointestinal disorder (other than GERD) and sinus disorder on the basis that such became manifest in service and persisted, is not warranted. Additionally, while the Board acknowledges the Veteran's contentions that his gastrointestinal disorder is related to an in-service bowel resection and that his sinus disorder is related to an in-service head injury, there is no competent evidence in the file that links his current disabilities with any in-service event or injury. As noted, VA attempted to obtain medical evidence and opinions relating to these contentions in the examinations which were not performed due to the Veteran's failure to appear. While the Veteran is competent as a layperson to testify to observable symptoms that he experiences, he does not have the medical training or credentials to provide a competent opinion as to the diagnosis or etiology of the claimed disabilities. See Jandreau, 492 F.3d at 1377. Therefore, as the Veteran's statements are not competent, they are not entitled to any probative value. In sum, the Board finds that the preponderance of the evidence is against a finding that the Veteran's current gastrointestinal disorder (other than GERD) and sinus disorder manifested during service and/or are otherwise related to service. The Veteran's post-service records only reflect treatment and do not include any medical opinions linking the Veteran's claimed disabilities to his military service. The only evidence in the file indicating such a relationship exists is from the Veteran himself. However, as indicated, the Veteran's statements are not competent or probative as to the etiology of his disabilities. Therefore, the Board finds that the preponderance of the evidence is against the Veteran's claims for service connection for a gastrointestinal disorder (other than GERD) and sinus disorder, and they must be denied. 5. Entitlement to service connection for a low back disorder. The Veteran seeks service connection for a low back disorder. STRs show that a few months after entrance onto active duty, the Veteran developed lower back pain and he was assessed with a bruised back. Upon separation from service, a service separation examination was not performed because the Veteran elected to forgo one. Following separation from service, the Veteran appears to have first reported back problems in 1984. VA X-ray evidence showed that the Veteran had congenital kyphoscoliosis, without evidence of degenerative joint disease or narrowing of any disc space. At that time, the VA physician noted the Veteran's contention that his congenital kyphoscoliosis was aggravated by an injury during military service. See March and September 1984 VA Treatment records. VA treatment records from August 1991 document the Veteran's reports that his kyphoscoliosis was slowly worsening. Examination of the spine revealed mild thoracic scoliosis, convex to the left, moderate thoracolumbar scoliosis convex to the right and mild mid lumbar scoliosis convex to the left; mild anterior wedging of several of the thoracic vertebral bodies with associated mild dorsal kyphosis (this may be secondary to compression fracture of uncertain age or could be congenital); and slight sclerosis overlying the mid and inferior portions of the left S1 joint (this may be secondary to previous trauma). During the October 2017 Board hearing, the Veteran testified that there was an APC accident in service, where he fell and injured his low back. More recent VA treatment records show that the Veteran has a lumbar spine disorder with lumbar spinal stenosis. See August 2018 VA Treatment records. As noted above, the Veteran was to be scheduled for a VA examination to determine whether the Veteran had a back disorder that both preexisted service and was aggravated beyond its natural progression by such service. However, the Veteran did not attend the scheduled VA examination and, therefore, the Board's consideration is limited to the available evidence of record. [The Board emphasizes that a VA examination would have provided necessary information regarding the Veteran's congenital back condition. Nevertheless, the decision must be based on the evidence of record. See 38 C.F.R. § 3.655(b)]. The Board acknowledges the Veteran's contentions/testimony suggesting that his current back disorder is related to an in-service injury and that his congenital kyphoscoliosis was aggravated by his military service. While the Veteran is competent to report symptoms, as previously indicated, there is no indication that he is competent to render a diagnosis or a competent opinion as to medical causation. See Jandreau, 492 F.3d at 1377. Accordingly, the Veteran's lay statements do not constitute competent medical evidence and they lack probative value. Based upon the forgoing, the Board finds that the preponderance of the evidence is against a finding that the Veteran's current low back disorder manifested in service or to a compensable degree in the first year following his separation from service or is otherwise related to service. In pertinent part, the evidence shows that, almost four years after separation from service, in September 1984, the Veteran underwent diagnostic testing that showed moderate kyphoscoliosis with primarily a kyphosis and minimal scoliosis. It was also noted that there was no evidence of degenerative joint disease or narrowing of any disc space. Subsequently, in 1991, VA treatment records showed evidence of lumbar scoliosis, anterior wedging of the thoracic vertebral bodies and slight sclerosis that may have been secondary to previous trauma. The Board emphasizes that, while this evidence suggests the Veteran may have developed additional back disabilities due to trauma, the evidence reasonably establishes that the trauma associated back issues were not present as of September 1984. Per the September 1984 diagnostic testing results, there was only evidence of moderate kyphoscoliosis/scoliosis. As such, the Board finds that there is no evidence that the Veteran's current lumbar spine disorder with lumbar spinal stenosis manifested in service or to a compensable degree within the first year following separation from service. The Board also concludes that the preponderance of the evidence is against a finding that the Veteran developed an additional disability (other than his congenital kyphoscoliosis) subject to any in-service superimposed injury. See 38 C.F.R. § 3.303(c). As noted, following the Veteran's service, in September 1984, the Veteran's back disability was only manifested as kyphoscoliosis and scoliosis. The Veteran did not appear to develop additional/non-congenital back problems until 1991 (over 10 years after separation from service). Thus, there is no evidence the Veteran developed an additional disability apart from the Veteran's kyphoscoliosis/scoliosis (which is a congenital defect) due to any superimposed in-service injury. See 38 C.F.R. § 3.303(c). Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for a low back disorder, and the claim must be denied. TDIU Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § § 3.340(a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability 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. 38 C.F.R. § § 4.16(a). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. 6. Entitlement to a TDIU. The Veteran reports that he is unemployable due to his nonservice-connected disabilities, to include a back disorder, heart disorder, and a neurological disorder. See June 2013 Veterans Application for Increased Compensation Based on Unemployability and August 2013 Notice of Disagreement. However, as he currently has no service-connected disabilities, a TDIU cannot be granted as a matter of law. See 38 C.F.R. §§ 3.340, 3.341, 4.16. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Metzner, Paul The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.