Citation Nr: 0605051 Decision Date: 02/22/06 Archive Date: 03/01/06 DOCKET NO. 00-04 152 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a disability manifested by shortness of breath, secondary to nicotine dependency. 2. Entitlement to service connection for congestive heart failure, claimed as secondary to hypertension 3. Entitlement to service connection for obesity. 4. Entitlement to service connection for muscle atrophy. 5. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for loss of libido, self-esteem, and reputation. 6. Entitlement to a total rating based on individual unemployability resulting from service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Robert A. Leaf, Counsel INTRODUCTION The veteran served on active duty from January 1955 to January 1958. This case initially came before the Board of Veterans' Appeals (Board) by means of a September 1999 decision rendered by the New Orleans, Louisiana, Regional Office (RO) of the Department of Veterans Affairs (VA). During the pendency of this appeal, the veteran moved to Texas and his claim was transferred to the Board from the RO in Houston, Texas. In March 2001, the Board remanded the case to the RO for further evidentiary development. The Board issued a decision in December 2003, in which it was determined that new and material evidence had not been submitted to reopen a claim of compensation for depression under the provisions of 38 U.S.C.A. § 1151, or a claim of compensation for swelling and scarring of the extremities under the provisions of 38 U.S.C.A. § 1151. As well, the Board remanded to the RO for further development the issues that appear on the title page of this decision. The case has been returned to the Board for continuation of appellate review. In correspondence received in connection with this appeal, the veteran contended that VA's mismanagement of his medical care resulted in or caused an increase in severity of morbid obesity, and of a disability manifested by muscle atrophy. It appears that he is seeking compensation benefits for obesity and for a disability manifested by muscle atrophy, under the provisions of 38 U.S.C.A. § 1151. Neither issue has been developed or certified for appellate review. Accordingly, both issues are referred to the RO for any action deemed appropriate. FINDINGS OF FACT 1. The veteran, after June 9, 1998, filed his current claim for service connection for a disability manifested by shortness of breath, including chronic obstructive pulmonary disease (COPD), claimed as due to tobacco use during service and/or due to nicotine dependence that developed during service. 2. COPD was first identified many years after the veteran completed military service, and there is no competent medical evidence attributing that disorder to service. 3. Congestive heart failure was not shown to be present during service or within the first postservice year, and there is no competent medical evidence attributing that disorder to service. 4. Morbid obesity was first verified in postservice years, and there is no competent medical evidence attributing that disorder to service. 5. Any disability now present manifested by muscle atrophy was first identified many years after the veteran completed military service, and there is no competent medical evidence attributing that disability to service. 6. The medical treatment the veteran received from VA did not cause or worsen any disorder manifested by loss of libido, self-esteem, and reputation. 7. Service connection is in effect for allergic conjunctivitis associated with sinusitis, evaluated 10 percent disabling; postoperative residuals of nasal septal deviation with septoplasty, left antrum window with old, healed laceration wound scars of the left eyebrow, nose, and right upper lip, evaluated 10 percent disabling; sinusitis, evaluated 10 percent disabling; and headaches, resulting from cerebral concussion, evaluated 10 percent disabling. A combined rating of 40 percent is in effect for service- connected disabilities. 8. The veteran has completed four years of college and has attended law school; he has occupational experience in the insurance field, at a chemical plant, at construction in the petrochemical business, as a union organizer, as a title searcher in the oil business, and as an attorney; he last worked in 1996. 9. The veteran's service-connected disabilities are not so severe as to preclude some form of substantially gainful employment consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. The veteran's claim of entitlement to service connection for COPD, claimed as due to tobacco use during service, or nicotine dependence developed during service, lacks legal merit and entitlement under the law. 38 U.S.C.A. § 1103 (West 2002). 2. A disability manifested by shortness of breath, including COPD, was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2005). 3. Congestive heart failure was not incurred in or aggravated by service nor may service incurrence be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2005). 4. Obesity was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2005). 5. Muscle atrophy was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2005). 6. The criteria have not been met for compensation benefits for a disorder manifested by loss of libido, self-esteem, and reputation, resulting from VA treatment. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.358 (2005). 7. A TDIU is not warranted. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Procedural Due Process, Preliminary Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2005). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2005); 38 C.F.R. § 3.159(b) (2005); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). VA satisfied its duty to notify by means of an October 2004 letter from the RO to the appellant that was issued in connection with the initial RO decision in September 1999. The letter informed the appellant of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. The appellant was also asked to submit evidence and/or information in his possession to the RO. As for assisting him with his claims, the claimant's service medical records are on file, as are his VA medical records. The RO requested the Social Security Administration (SSA) to send copies of any disability determinations and accompanying medical records pertaining to the veteran. SSA advised that it had none on file. In any event, the veteran, in correspondence dated in August 2002, stated that, although he was receiving SSA retirement benefits, he had not submitted medical evidence to SSA nor had he been required to undergo a physical examination by SSA in connection with the award of retirement benefits. As well, he has not identified treatment records from private medical providers that must be obtained. There is no indication that any pertinent evidence was not received, which is obtainable. Therefore, the duty to notify of inability to obtain records does not arise in this case. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the U.S. Court of Appeals for Veterans Claims held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable RO decision on a claim for VA benefits. In the present case, the unfavorable RO decision of September 1999 that is the basis of this appeal was already issued prior to the enactment of the VCAA in November 2000. The Court acknowledged in Pelegrini that where, as here, the § 5103(a) notice was not mandated at the time of the initial RO decision, the RO did not err in not providing such notice. Rather, the appellant has the right to content complying notice and proper subsequent VA process. Pelegrini, 18 Vet. App. at 120. Here, the Board finds that any defect with respect to the timing of the VCAA notice requirement was harmless error. Although the notice was provided to the appellant after the initial adjudication, the appellant has not been prejudiced thereby. The content of the notice provided to the appellant fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. Not only has the appellant been provided with every opportunity to submit evidence and argument in support of his claims and to respond to VA notices, but the actions taken by VA have essentially cured the error in the timing of notice. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his claims. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal. The Board finds that VA has secured all available evidence and conducted all appropriate development. Hence, the Board finds that VA has fulfilled its duties under the VCAA. Legal Criteria In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in the active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and cardiovascular disease is manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A veteran's disability or death shall not be considered to have resulted from personal injury suffered or disease contracted on the basis that it resulted in injury or disease attributable to the use of tobacco products during the veteran's service. 38 U.S.C.A. § 1103. Compensation shall be awarded for a qualifying additional disability or death in the same manner as if such additional disability or death were service-connected. For purposes of this section, a disability or death is a qualifying additional disability if the disability or death was not the result of the veteran's willful misconduct and (1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary and the proximate cause of the disability or death was (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination, or (B) an event not reasonably foreseeable. 38 U.S.C.A. § 1151. In determining that additional disability exists, the veteran's physical condition immediately prior to the disease or injury upon which the claim for compensation is based will be compared with the subsequent physical condition resulting from the disease or injury. See 38 C.F.R. § 3.358(b)(1). Compensation will not be payable for the continuance or natural progress of diseases or injuries for which the hospitalization or treatment was authorized. 38 C.F.R. § 3.358(b)(2). The appellant must show that additional disability is actually the result of such disease or injury or an aggravation of an existing disease or injury suffered as the result of hospitalization or medical treatment and not merely coincidental therewith. The mere fact of aggravation alone will not suffice to make the disability compensable in the absence of proof that it resulted from disease or injury or an aggravation of an existing disease or injury suffered as the result of training, hospitalization, an examination, or medical or surgical treatment. 38 C.F.R. § 358(c)(1), (2). Further, compensation is not payable for the necessary consequences of medical or surgical treatment properly administered with the express or implied consent of the veteran. Necessary consequences are those which are certain to result from, or were intended to result from, the examination or treatment administered. 38 C.F.R. § 358(c)(3). Generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent, but total ratings usually will not be assigned for temporary exacerbations or acute infectious diseases except where prescribed by the VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. § 3.340; see also Fluharty v. Derwinski, 2 Vet. App. 409, 411 (1992); Hatlestad (I) v. Derwinski, 1 Vet. App. 164, 165 (1991). Total disability ratings are authorized for any disability - or combination of disabilities - for which the Rating Schedule prescribes a 100 disability evaluation, or, with less disability, if certain criteria are met. Where the schedular rating is less than total, a TDIU may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of his disability(ies) - provided that, if there is only one such disability, it shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19. Age and the effect of conditions that are not service connected are excluded from the determination regarding employability. And in exceptional circumstances, even where the veteran does not meet the aforementioned percentage requirements, a total rating may be assigned nonetheless - on an extra-schedular basis - upon a showing that he is unable to obtain or retain substantially gainful employment. 38 C.F.R. §§ 3.321(b)(1), 4.16(b). "Marginal employment," for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment." 38 C.F.R. § 4.16(a); Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). While the regulations do not provide a definition of "substantially gainful employment," VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), defines the term as "that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Also, in Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the veteran's earned annual income...." Other factors to be considered in determining whether a veteran is unemployable are his level of education, his employment history, and his vocational attainment. See Hyder v. Derwinski, 1 Vet. App. 221, 223 (1992); Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). The sole fact that the veteran is unemployed, or because he has difficulty obtaining employment is not enough; the question is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Analysis Claim for Service Connection for a Disability Manifested by Shortness of Breath, to Include COPD The veteran essentially argues that he has a disability manifested by shortness of breath, to include COPD, due to smoking during service, or that this condition was otherwise caused or aggravated as a result of nicotine dependence that was incurred as a result of the veteran's inservice tobacco use. He provided a statement from his brother indicating that the veteran had not smoked before entering military service. The Board believes that statement is credible, but nevertheless, as discussed below, the claim of service connection for disability based on inservice tobacco use or nicotine dependence must be denied. Congress has prohibited the grant of service connection for disability on the basis that such disability resulted from disease attributable to the use of tobacco products during the veteran's active service, for claims filed after June 9, 1998. 38 U.S.C.A. § 1103. Therefore, as a matter of law, any claims received by VA after June 9, 1998, are subject to this restriction. The veteran filed his current claim in May 1999. He has asserted that he developed a disability manifested by shortness of breath, to include COPD, due to his inservice use of tobacco products and/or nicotine dependence. In this case, the provisions of 38 U.S.C.A. § 1103 are dispositive of this theory of entitlement and require that the claim be denied. In a case where the law and not the evidence is dispositive, the claim should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). As the veteran filed his current claim in May 1999, after the promulgation of this section, his claim for service connection for a disability manifested by shortness of breath, to include COPD, as a result of inservice tobacco use or nicotine dependence, is prohibited as a matter of law. The Board notes an exception to the rule set forth in 38 U.S.C.A. § 1103(a). This aforementioned law will not preclude establishment of service connection for a disease which is otherwise shown to have been incurred or aggravated in active duty. 38 U.S.C.A. § 1103(b). With respect to a claim of direct service connection for a disability manifested by shortness of breath, to include COPD, the record shows that an examination was performed in November 1957 for the veteran's separation from service. The veteran reported having shortness of breath when exercising. The lungs and chest were normal to physical examination. A chest x-ray was negative. COPD first verified by VA during the 1990's, several decades after the veteran left military service. The veteran was afforded a VA medical examination in November 2004. The examiner reported claims file review. Clinical findings were recorded. The assessment was that the veteran had COPD, more likely than not due to tobacco use. There is no objective evidence in service medical records of a chronic disability manifested by shortness of breath, including COPD. Further, the Board notes that COPD was first identified several decades after the veteran's release from service. The veteran provided several articles from popular medical guides indicating that smoking may lead to chronic obstructive pulmonary disease (COPD). The Board does not dispute the validity of these medical articles demonstrating a link, generally, between smoking and lung disease. Moreover, a VA examiner has linked the veteran's COPD to tobacco use. However, the veteran has presented no competent medical evidence demonstrating that, in his particular case, current, tobacco-related COPD had its onset during military service, and that is a factual basis that must be established under current law for a grant of service connection for a tobacco-related disability. The veteran's unsubstantiated lay assertion is the only evidence linking a disability manifested by shortness of breath, to include COPD, to military service. There is no indication from the record that he has medical training or expertise. As a lay person, he is not competent to offer a medical opinion regarding the diagnosis or etiology of a disorder. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). For these reasons, the claim for service connection for a disability manifested by shortness of breath, secondary to nicotine dependency must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable in the current appeal. 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 38 U.S.C.A. 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). Claims for Service Connection for Obesity, for Muscle Atrophy, and for Congestive Heart Failure, Claimed as Secondary to Hypertension The veteran asserts that years of smoking limited the supply of oxygen to his circulatory system, leading to hypertension. In turn, he maintains that congestive heart failure developed secondary to hypertension. Additionally, he asserts that years of smoking limited the supply of oxygen to his circulatory system, leading to obesity. He also asserts that a disability manifested by muscle atrophy is attributable to military service. The veteran provided several articles from popular medical guides indicating that smoking may lead to heart disease; also, that high blood pressure may lead to congestive heart disease. The Board does not dispute the validity of these medical articles demonstrating a link between smoking and heart disease, as well as demonstrating a link between hypertension and congestive heart disease. Nevertheless, as discussed below, the claims of service connection for obesity; for a disability manifested by muscle atrophy; and for congestive heart failure, claimed as secondary to hypertension, must be denied. Turning to the facts in this case, the Board notes that service medical records contain no complaints or findings of heart disease or of muscle wasting. No disease process or clinical entity involving obesity is referenced in service medical records. Obesity and hypertension were first noted on VA examination in June 1974, a point in time more than 15 years after the veteran had completed military service. Cardiomegaly or heart enlargement was first verified by VA during the 1990's, and later, congestive heart failure was reported. Hence, congestive heart disease was first objectively demonstrated well beyond the one year period for a grant of service connection for heart disease on a presumptive basis. The veteran was afforded a VA medical examination in November 2004. The examiner reported claims file review. Clinical findings were reported. The assessment was the veteran's obesity was more likely than not due to his depression. There is no medical opinion in the record attributing obesity to the veteran's military service. The Board is aware that the November 2004 VA examiner found that the veteran did not have congestive heart failure, as evidenced by a normal ejection fraction of 50 percent on echocardiography in February 2004. In any event, the Board does not dispute that the veteran has congestive heart failure, in light of earlier VA medical findings to that effect. However, accepting as true that the veteran currently has congestive heart disease, he still has presented no medical opinion linking that condition to military service. Moreover, although his congestive heart failure may have developed as a result of high blood pressure, it should be noted that hypertension is not a condition for which service connection has been granted, and hence there is no basis for a grant of service connection for congestive heart failure as secondary to hypertension. See, 38 C.F.R. § 3.310(a) (2005). A VA physician, in September 2000, noted that the veteran had an unspecified type of mild neuromuscular disease. By contrast, a VA neurological examiner in November 2004 found no muscle atrophy. Also, the examiner observed that no motor losses were elicited and that bilateral lower extremity neuropathy was as likely as not due to uncontrolled diabetes mellitus. In any event, even accepting as true that the veteran does have some form of disability manifested by muscle atrophy, there is no medical opinion in the record attributing it to military service. At bottom, the veteran's unsubstantiated lay assertion is the only evidence linking his obesity, congestive heart disease, and any current muscle atrophy to military service. There is no indication from the record that he has medical training or expertise. As a lay person, he is not competent to offer a medical opinion regarding the diagnosis or etiology of a disorder. Espiritu, supra. In determining that service connection is not warranted for obesity; for congestive heart failure, claimed as due to hypertension; or for muscle atrophy, the Board has been mindful of the benefit-of-the-doubt doctrine. But since, for the reasons stated, the preponderance of the evidence is against the claims, the doctrine does not apply. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Claim for Compensation under the Provisions of 38 U.S.C.A. § 1151 for a Disability Manifested by Loss of Libido, Self- Esteem, and Reputation The veteran contends that VA's mismanagement of his medical care resulted in or caused an increase in severity of a disability manifested by loss of libido, self-esteem and reputation. The RO asked the veteran to provide dates and to identify the nature of the treatments he believes led to the alleged disability for which he seeks section 1151 compensation benefits. Other than his general assertion relating to inappropriate prescription of medications, he provided no details in response to the RO's request for dates and specific treatment modalities. A VA medical examination was performed in November 2004. The examiner reported claims file review. Clinical findings were recorded. The assessment was that the veteran's loss of libido, self-esteem, and reputation were more likely than not due to depression. The Board points out that depression is a condition for which service connection has been denied. As well, the examiner attributed loss of libido to a history of alcohol abuse. The Board notes that service connection may not be granted for conditions stemming from alcohol abuse. See, 38 C.F.R. § 3.301(d) (2005). There is no medical opinion in the record attributing a disability manifested by loss of libido, loss of self-esteem, and loss of reputation to treatment rendered by VA. At bottom, the veteran's unsubstantiated assertion is the only evidence that VA treatment resulted in a disability manifested by loss of libido, self-esteem, and reputation. The veteran's assertion amounts to an opinion about a matter of medical causation. But as alluded to earlier, as a lay person, he simply is not qualified to render a diagnosis or a probative opinion concerning medical causation. Espiritu, supra. The veteran has presented no competent medical evidence that VA treatment resulted in or caused an increase in disability beyond the natural progress of a condition manifested by loss of libido, self-esteem, and reputation. The record provides no basis to award compensation benefits under 38 U.S.C.A. § 1151 because the preponderance of the evidence is unfavorable-meaning the benefit-of-the-doubt rule does not apply. Claim for TDIU The Board notes that service connection is in effect for the following disabilities: allergic conjunctivitis associated with sinusitis, evaluated 10 percent disabling; postoperative residuals of nasal septal deviation with septoplasty, left antrum window with old, healed laceration wound scars of the left eyebrow, nose, and right upper lip, evaluated 10 percent disabling; sinusitis, evaluated 10 percent disabling; and headaches, resulting from cerebral concussion, evaluated 10 percent disabling. A combined rating of 40 percent is in effect for service-connected disabilities. The 40 percent combined rating for service-connected disabilities does not meet the minimum schedular requirements for a TDIU. The analysis, however, does not end there. The Board still must determine whether the veteran's service- connected disabilities nevertheless render him unemployable. Note, however, that unemployment is not synonymous with unemployability. In other words, just because the veteran is not currently working is not tantamount to concluding that he cannot work. The veteran reports that he completed four years of college and that he has a juris doctor degree from law school. He indicates that he has worked at many jobs, including positions in the insurance field, at a chemical plant, at construction in the petrochemical business, as a union organizer, as a title searcher in the oil business, and as an attorney. He does not describe significant, gainful employment since 1996. In a June 1999 statement, a VA physician found that the veteran was unable to work because of morbid obesity and congestive heart failure. Subsequently, in November 2004, a VA physician, who performed a general medical examination, determined that the veteran was unemployable because of morbid obesity, depression, and sleep apnea. Service connection is not in effect for any of the conditions to which physicians have attributed the veteran's inability to work. As well, the veteran has offered no explanation of how his service-connected disabilities, by themselves, have exerted an adverse impact of such magnitude that he can no longer perform the various types of jobs he has held in the past. Upon a review of the record in its entirety, the Board concludes that the veteran is capable of performing some form of substantially gainful employment consistent with his education and occupational experience, and taking into account only his service-connected disabilities. In reaching its determination that a TDIU is not warranted, the Board has been mindful of the benefit-of-the-doubt doctrine, but concludes that this doctrine does not apply. ORDER Service connection for a disability manifested by shortness of breath, including COPD, secondary to nicotine dependency is denied. Service connection for congestive heart failure, claimed as secondary to hypertension is denied. Service connection for obesity is denied. Service connection for muscle atrophy is denied. Compensation under the provisions of 38 U.S.C.A. § 1151 for loss of libido, self-esteem, and reputation is denied. TDIU is denied. ____________________________________________ Gary L. Gick Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs