Citation Nr: 21011537 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 11-10 305 DATE: March 2, 2021 ORDER The claim to reopen a claim of entitlement to service connection for migratory polyarthritis or Reiter’s syndrome, on the basis of substitution, is denied. Entitlement to service connection for a cervical spine disorder, to include as secondary to migratory polyarthritis or Reiter’s syndrome, on the basis of substitution, is denied. Entitlement to service connection for a thoracic spine disorder, to include as secondary to migratory polyarthritis or Reiter’s syndrome, on the basis of substitution, is denied. Entitlement to service connection for hammer toes, to include as secondary to migratory polyarthritis or Reiter’s syndrome, on the basis of substitution, is denied. Entitlement to service connection for a lung disorder, to include as secondary to migratory polyarthritis or Reiter's syndrome, on the basis of substitution, is denied. Entitlement to service connection for a heart disorder, to include as secondary to migratory polyarthritis or Reiter's syndrome, on the basis of substitution, is denied. Entitlement to service connection for erectile dysfunction, to include as secondary to migratory polyarthritis or Reiter's syndrome, on the basis of substitution, is denied. Entitlement to service connection for a psychiatric disorder, to include as secondary to migratory polyarthritis or Reiter's syndrome, on the basis of substitution, is denied. Entitlement to service connection for a left ankle disorder, to include as secondary to migratory polyarthritis or Reiter’s syndrome, on the basis of substitution, is denied. Entitlement to service connection for a left knee disorder, to include as secondary to migratory polyarthritis or Reiter’s syndrome, on the basis of substitution, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, on the basis of substitution, is denied. FINDINGS OF FACT 1. In a January 2005 rating decision, the RO determined new and material evidence had not been submitted to reopen a previously denied claim of service connection for migratory polyarthritis. The claimant did not appeal or submit new and material evidence within one year of this decision 2. Evidence received since the final January 2005 rating decision is cumulative, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim. 3. A cervical spine disorder is not incurred in or aggravated during any period of ACDUTRA, is not due to injury during a period of INACDUTRA, and is not caused or aggravated by a service-connected disorder. 4. A thoracic spine disorder is not incurred in or aggravated during any period of ACDUTRA, is not due to injury during a period of INACDUTRA, and is not caused or aggravated by a service-connected disorder. 5. Hammertoes are not incurred in or aggravated during any period of ACDUTRA, are not due to injury during a period of INACDUTRA, and are not caused or aggravated by a service-connected disorder. 6. A lung disorder is not incurred in or aggravated during any period of ACDUTRA, is not due to injury during a period of INACDUTRA, and is not caused or aggravated by a service-connected disorder. 7. A heart disorder is not incurred in or aggravated during any period of ACDUTRA, is not due to injury during a period of INACDUTRA, and is not caused or aggravated by a service-connected disorder. 8. Erectile dysfunction is not incurred in or aggravated during any period of ACDUTRA, is not due to injury during a period of INACDUTRA, and is not caused or aggravated by a service-connected disorder. 9. A psychiatric disorder is not clinically diagnosed, functional impairment due to psychiatric symptoms is not incurred in or aggravated during any period of ACDUTRA, is not due to injury during a period of INACDUTRA, and is not caused or aggravated by a service-connected disorder. 10. The medical evidence does not show a separately diagnosed left ankle disorder other than the non-service-connected migratory polyarthritis or Reiter’s syndrome. 11. The medical evidence does not show a separately diagnosed left knee disorder other than the non-service-connected migratory polyarthritis or Reiter’s syndrome. 12. The claimant did not have any service-connected disabilities. CONCLUSIONS OF LAW 1. The January 2005 rating decision determining that new and material evidence had not been received to reopen the previously denied claim of service connection for migratory polyarthritis is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.1103. 2. New and material evidence has not been received to warrant reopening of the claim of service connection for migratory polyarthritis or Reiter’s syndrome. 38 U.S.C. §§ 5107, 5108 (2012); 38 C.F.R. § 3.156. 3. The criteria for service connection for a thoracic spine disorder, to include as secondary to migratory polyarthritis or Reiter’s syndrome, on the basis of substitution, have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303, 3.310. 4. The criteria for service connection for hammertoes, to include as secondary to migratory polyarthritis or Reiter’s syndrome, on the basis of substitution, have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303, 3.310. 5. The criteria for service connection for a lung disorder, to include as secondary to migratory polyarthritis or Reiter's syndrome, on the basis of substitution, have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303, 3.310 6. The criteria for service connection for a heart disorder, to include as secondary to migratory polyarthritis or Reiter's syndrome, on the basis of substitution, have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303, 3.310. 7. The criteria for service connection for erectile dysfunction, to include as secondary to migratory polyarthritis or Reiter's syndrome, on the basis of substitution, have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303, 3.310. 8. The criteria for service connection for a psychiatric disorder, to include as secondary to migratory polyarthritis or Reiter's syndrome, on the basis of substitution, have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303, 3.310. 9. The criteria for service connection for a left ankle disorder, to include as secondary to migratory polyarthritis or Reiter’s syndrome, on the basis of substitution, have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303, 3.310. 10. The criteria for service connection for a left knee disorder, to include as secondary to migratory polyarthritis or Reiter’s syndrome, on the basis of substitution, have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303, 3.310. 11. Entitlement to a TDIU is denied as a matter of law. 38 C.F.R. §§ 3.340, 4.16(a), (b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The claimant, DD, served on active duty for training (ACDUTRA) in the Air Force National Guard from July 26, 1968 to November 22, 1968 and from January 27, 1969 to January 29, 1969. He had additional inactive duty for training (INACDUTRA) for brief periods from July 1968 to April 1970. This matter initially came to the Board of DDs’ Appeals (Board) on appeal from an August 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office. Sadly, the claimant died in January 2011, and the appellant is the claimant’s surviving spouse. In June 2013, the RO informed the appellant that it had determined that she was eligible as a valid substitute in place of the claimant for the issues on appeal. The appellant testified before the undersigned Veterans Law Judge at a Board hearing in July 2013 and a transcript of the proceeding is of record. The Board finds that all requirements for hearings have been met. 38 C.F.R. § 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). This matter was most recently remanded in September 2019 following a February 2019 Order of the United States Court of Appeals for DDs Claims (Court) that granted the parties’ Joint Motion for Remand (JMR). In the JMR, the parties’ agreed that the AOJ failed to provide notice to the appellant’s representative of a June 2016 rating decision. The required notice was then provided in January 2020. The appeal period for that decision has expired, and the appellant did not perfect an appeal. The AOJ complied with the remand directives and the Board will address the merits of the claim. New and Material Evidence - Service Connection In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.104, 20.1100, 20.1103. A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108 (2012). Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). New evidence means existing 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. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. Additionally, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Furthermore, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence. 38 C.F.R. § 3.156(c)(1). A claim is not reconsidered, however, where VA could not have obtained the records when it initially decided the claim because the records did not exist at that time, or because the claimant failed to provide sufficient information to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or any other official source. 38 C.F.R. § 3.156(c)(2). To establish service connection, a DD must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called nexus requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability. 38 C.F.R. § 3.310 (2018); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In this case, the claimant only had service periods of ACDUTRA and INACDUTRA. The claimant’s only ACDUTRA periods were July 26, 1968 to November 22, 1968 and from January 27, 1969 to January 29, 1969. When a claim for service connection is based on a period of ACDUTRA, there must be some evidence that a veteran became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of ACDUTRA. In regard to INACDUTRA, there must be some evidence that a veteran became disabled as a result of an injury (not disease) incurred or aggravated in the line of duty during the period of INACDUTRA. Smith v. Shinseki, 24 Vet. App. 40, 47 (2010). In the absence of such evidence, the period of ACDUTRA or INACDUTRA would not qualify as “active military, naval, or air service” and the appellant would not qualify as a “veteran” by virtue of ACDUTRA service alone. Id. Generally, no presumptions (including the presumptions of soundness, aggravation, or for presumptive diseases) attach to periods of ACDUTRA and INACDUTRA unless “veteran” status is attained during those periods. Paulson v. Brown, 7 Vet. App. 466, 470 (1995). The presumption of soundness under 38 U.S.C. § 1111 does not apply when a claimant, veteran or otherwise, has not been examined upon entering a period of ACDUTRA. Smith v. Shinseki, 24 Vet. App. 40, 45 (2010). Likewise, the presumption of aggravation under 38 U.S.C. § 1153 does not apply to ACDUTRA or INACDUTRA service. Smith, 24 Vet. App. at 45. See also Acciola v. Peake, 22 Vet. App. 320 (2008); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). Neither the presumption of soundness nor the presumption of aggravation is at issue here for the claims on appeal. 1. The claim to reopen a claim of entitlement to service connection for migratory polyarthritis or Reiter's syndrome, on the basis of substitution, is denied. Originally, a June 1980 rating decision denied service connection for migratory polyarthritis. The RO concluded that migratory polyarthritis or Reiter’s syndrome was not incurred in or aggravated by the claimant’s period of active duty for training. The claimant did not appeal that decision nor submit new and material evidence within one year. The rating decision is thus final based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. In a January 2005 rating decision, the RO declined to reopen the claim for service connection because new and material evidence had not been submitted. The notice letter was sent to the claimant in February 2005. The claimant did not appeal that decision nor submit new and material evidence within one year. The rating decision is thus final based on the evidence then of record. See 38 U.S.C. § 7105 (c); 38 C.F.R. § 20.1103. Evidence of record at the time of the January 2005 decision includes the claimant’s service treatment records (STRs), service personnel records (SPRs), lay testimony from multiple persons, private medical records, and a January 2004 letter from Dr. R.R. The STRs and SPRs show the claimant complained of left knee pain for two days in June 1969; was hospitalized with left knee and right hip pain in July 1969; had knee, ankle, and hip edema in December 1969, and was medically discharged from the Air Force National Guard due to rheumatoid arthritis in February 1970. Private medical records document the claimant was diagnosed with migratory polyarthritis that was possibly rheumatoid or reactionary in July 1969. In July 2002 the claimant wrote that his arthritis began during his period of service and he was treated in service. In February 2004, the claimant’s friend K.C. wrote he recalled the claimant had knee and hip problems in November 1968. N.C. wrote the claimant had knee and hip pain in October 1968. In September 2004, Dr. R.R. wrote the claimant had the condition for many years and was totally disabled. The appellant wrote that DD had severe arthritis and was unable to work. The medical evidence available did not show that DD became disabled due to migratory polyarthritis during one of the periods of ACDUTRA. Evidence submitted after the January 2005 decision includes VA treatment records and lay statements from the claimant and the appellant. Generally, the claimant and the appellant expressed their belief that migratory polyarthritis had onset during a period of qualifying service and was due to service. See e.g. April and June 2009 Statements in Support of Claim. The VA treatment records generally show ongoing treatment for migratory polyarthritis but do not include evidence the condition had onset during a qualifying period of ACDUTRA service. Other evidence received was duplicative of evidence already in the claims file. The Board finds that new and material evidence has not been presented. The evidence, including the lay testimony and VA treatment records, is new because it was not previously submitted to VA. The evidence is not material, however, because it does not relate to an unestablished fact necessary to establish the claim - evidence that migratory polyarthritis had onset during a period of qualifying ACDUTRA service. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. The lay testimony, though new, is also redundant as it makes the same assertions previously addressed in the January 2005 rating decision. See 38 C.F.R. § 3.156(a). Further, it does not raise a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 117. The Board is sympathetic to the appellant’s assertions; however, service connection cannot be established for a disease that had onset during a period of INACDUTRA as opposed to ACDUTRA. Accordingly, the appellant’s claim cannot be reopened. 2. Entitlement to service connection for a cervical spine disorder, to include as secondary to migratory polyarthritis or Reiter’s syndrome, on the basis of substitution, is denied. 3. Entitlement to service connection for a thoracic spine disorder, to include as secondary to migratory polyarthritis or Reiter’s syndrome, on the basis of substitution, is denied. 4. Entitlement to service connection for hammertoes, to include as secondary to migratory polyarthritis or Reiter’s syndrome, on the basis of substitution, is denied. 5. Entitlement to service connection for a lung disorder, to include as secondary to migratory polyarthritis or Reiter's syndrome, on the basis of substitution, is denied. 6. Entitlement to service connection for erectile dysfunction, to include as secondary to migratory polyarthritis or Reiter’s syndrome, on the basis of substitution, is denied. 7. Entitlement to service connection for a heart disorder, to include as secondary to migratory polyarthritis or Reiter’s syndrome, on the basis of substitution, is denied. At the July 2013 hearing, the appellant asserted that all other issues on appeal were secondary to migratory polyarthritis or Reiter’s syndrome. First, there are current disabilities. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). June 1985 private records and June 2010 VA x-ray reports document a diagnosis of ankylosing spondylitis of the spine and stable old compression fracture of the T12 body. VA treatment records dated June and October 2008 document hammertoe deformities and hallux valgus of the right foot. March 2009 VA records note tachycardia. May 2010 VA treatment notes report a diagnosis of chronic obstructive pulmonary disorder (COPD) and November 2010 VA imaging studies show a lung nodule in the upper left lobe. February 2010 VA treatment notes report a medical history of erectile disorder. Second, there was not an in-service event, injury or disease. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The weight of the evidence does not demonstrate the a hammertoe deformity, a thoracic spine disorder, a cervical spine disorder, erectile dysfunction, a lung disorder, or a heart disorder manifested during a period of ACDUTRA, or that the claimant became disabled as a result of such disability during a period of ACDUTRA. The claimant has not alleged that a cervical spine disorder, thoracic spine disorder, hammertoe disorder, lung disorder, heart disorder, or erectile dysfunction had onset during a period of ACDUTRA or was due to an injury incurred during a period of INACDUTRA. The STRs do not show that a cervical spine disorder, a thoracic spine disorder, a hammertoe disorder, a lung disorder, heart disorder, or erectile dysfunction had onset during claimant’s periods of ACDUTRA, nor do they document an injury during a period of INACDUTRA. His examinations throughout service including his enlistment examination in July 1968 and periodic examinations following were normal for his feet. The claimant’s STRs do not show any indication of spine injury, symptomatology, pain or diagnosis. The STRs do not make any mention of any erectile dysfunction. Regarding the claimant’s lung and heart disorder, a June 1969 chest X-ray showed that the claimant’s lungs were clear, and there are no other implications of lung or heart disorder during ACDUTRA and INACDUTRA. At the July 2013 Board hearing the appellant noted the claimant reported his toes began curling when he got out of service. He also told her he would have to go pick up dead bodies and his back would hurt doing so. With regard to the claimant’s lung disability, the appellant reported that he had difficulty breathing and that he was prescribed inhalers. She also explained that the claimant had one episode where he had a problem with his heart rate. Finally, the appellant testified that the claimant had erectile dysfunction and was prescribed Viagra through the VA for such but did not specify how such diagnosis was related to his service. The Board observes that lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person (e.g. any evidence not requiring that the proponent has specialized education, training, or experience). 38 C.F.R. § 3.159(a)(2). As such, the appellant and claimant can competently testify about symptoms the claimant experienced in service. However, competency must be distinguished from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In the present case, the Board finds that the appellant’s and claimant’s history that the claimant had hammertoe, cervical spine, thoracic spine, erectile dysfunction and lung disabilities since service is outweighed by the objective evidence of record in light of both the lack of any post service treatment or complaints of this disability until more than three decades after discharge. As such, the appellant’s and claimant’s statements lack probative value. The weight of the evidence also does not show the claimant became disabled as a result of an injury (not disease) incurred or aggravated in the line of duty during the period of INACDUTRA. There is no medical evidence of an injury during INACDUTRA, or that the claimed disabilities are due to an injury incurred during a period of INACDUTRA. To the degree the claimant and appellant assert a nexus between the claimed disabilities and a period of INACDUTRA, as laypersons they are not competent to provide an opinion on a complex medical question. In sum, the criteria for service connection for a hammertoe deformity, a thoracic spine disorder, a cervical spine disorder, erectile dysfunction, a heart disorder, or a lung disorder based on a period of ACDUTRA or INACDUTRA are not met. Service connection for a hammertoe deformity, a thoracic spine disorder, a cervical spine disorder, erectile dysfunction, a heart disorder or a lung disorder as secondary to migratory polyarthritis or Reiter’s syndrome cannot be granted because service-connection is not in effect for migratory polyarthritis or Reiter’s syndrome. Thus, the criteria for secondary service connection are also unmet. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the claimant’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 8. Entitlement to service connection for a psychiatric disorder, to include as secondary to migratory polyarthritis or Reiter's syndrome, on the basis of substitution, is denied. The claimant and appellant similarly assert that a psychiatric disorder is secondary to migratory polyarthritis. See July 2013 hearing testimony. Initially, the record does not show a diagnosed psychiatric disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). For the period on appeal, there is also not competent evidence demonstrating that psychiatric disability resulted in functional impairment that in fact affected earning capacity during the appeal period. See Wait v. Wilkie, No. 18-4349, 2020 U.S. App. Vet. Claims LEXIS 1609 (August 16, 2020). Although scattered VA treatment records note a problem list that includes anxiety, the DD denied anxiety and depression throughout the period on appeal and no formal diagnoses or treatment are of record. See June 2010, October 2010, and November 2010 VA treatment records. At the July 2013 hearing, the appellant testified that the claimant was depressed and withdrawn. The record does not show a diagnosed psychiatric disability, but there is some indication of psychiatric symptoms of depression and anxiety. Even if the claimant had functional impairment that in fact affected earning capacity due to anxiety or depression, the appellant does not assert and the evidence does not otherwise show that DD became disabled due to a psychiatric disease during a period of ACDUTRA, or that a psychiatric disorder is related to an injury sustained during a period of INACDUTRA. Rather, the claim is based on a theory of secondary service connection. Service connection cannot be granted on a secondary basis either, however, as service-connection is not in effect for migratory polyarthritis or Reiter’s syndrome. In sum, the claim for service connection for a psychiatric disorder is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the claimant’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 9. Entitlement to service connection for a left ankle disorder, to include as secondary to migratory polyarthritis or Reiter’s syndrome, on the basis of substitution, is denied. 10. Entitlement to service connection for a left knee disorder, to include as secondary to migratory polyarthritis or Reiter’s syndrome, on the basis of substitution, is denied. The claimant alleged that a left ankle and left knee condition had onset during a qualifying period of service, or is otherwise secondary to the migratory arthritis or Reiter’s syndrome. See June 2009 correspondence; see July 2013 hearing testimony. Here, the medical evidence does not demonstrate a left ankle or left knee disorder present during the appeal period that is independent of the migratory polyarthritis or Reiter’s syndrome. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). Although the claimant is competent to report symptoms of the left knee or ankle, lay persons are not competent to diagnose medical conditions. Overall, there is no evidence of a separately diagnosed left knee or left ankle disorder. Entitlement to service connection for migratory polyarthritis or Reiter’s that may affect the left knee and left ankle is not in effect. In sum, there is no separately diagnosed left knee or left ankle condition for which service connection may be granted and the claim is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the claimant’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 11. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, on the basis of substitution, is denied. VA will grant TDIU when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU is granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. 38 C.F.R. § 4.16(a). If there are two or more such 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. § 4.16(a). In this case, the claimant has no service-connected disabilities. Without satisfying this predicate requirement for a TDIU, the instant claim for TDIU is denied as a matter of law. K. MILLIKAN DDs Law Judge Board of Veterans’ Appeals Attorney for the Board C. Smith, Counsel 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.