Citation Nr: 1004389 Decision Date: 01/29/10 Archive Date: 02/16/10 DOCKET NO. 04-22 849 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to service connection for cognitive disorder, claimed secondary to service-connected hypertension. 2. Entitlement to service connection for vision impairment, claimed secondary to service-connected hypertension. 3. Entitlement to an increased (compensable) rating for erectile dysfunction. 4. Entitlement to an increased rating for hypertension, currently rated as 10 percent disabling. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to October 15, 2008. 6. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from October 15, 2008 to January 7, 2009. 7. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) beginning January 7, 2009. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nancy S. Kettelle, Counsel INTRODUCTION The Veteran served on active duty from July 1965 to July 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. In a rating decision dated in April 2003, the RO, in pertinent part, denied an increased rating for hypertension and denied service connection for cognitive disorder, claimed secondary to hypertension. In addition, in a rating decision dated in July 2007, the RO denied service connection for vision impairment, claimed secondary to hypertension, and denied an increased (compensable) rating for erectile dysfunction. Also, in a rating decision dated in July 2008, the RO denied TDIU. In November 2009, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the claims file. FINDINGS OF FACT 1. At the November 2009 hearing, the Veteran indicated that he wished to withdraw the appeal concerning the matter of entitlement to service connection for cognitive disorder, claimed secondary to hypertension. 2. There is no evidence of chronic vision disability in service or for many years after service, nor is their competent evidence that relates any current vision disability to service or to any service-connected disability, including the Veteran's service-connected hypertension or diabetes mellitus. 3. At no time during the appeal period is the Veteran's hypertension shown to have been manifested by diastolic pressures predominantly 110 or more, or systolic pressures predominantly 200 or more. 4. Throughout the appeal period, the Veteran's erectile dysfunction has been manifested by loss of erectile power and deformity of the penis characterized as shrinkage and retraction. 5. The evidence of record does not demonstrate that prior to October 15, 2008, the Veteran was unemployable solely as a result of his service-connected disabilities. 6. Resolving all reasonable doubt in favor of the Veteran, the evidence demonstrates that from October 15, 2008, to January 7, 2009, the date of aortic valve replacement surgery, the Veteran's service-connected disabilities precluded all forms of substantially gainful employment. 7. The evidence of record does not demonstrate that subsequent to post-surgical convalescence, which ended July 31, 2009, that the Veteran's service-connected disabilities precluded all forms of substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the substantive appeal by the Veteran concerning the matter of entitlement to service connection for cognitive disorder, claimed secondary to hypertension, have been met, and that appeal is dismissed. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2009). 2. Vision impairment was not incurred in or aggravated by active service, nor is any vision disability proximately due to or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2009). 3. The criteria for a rating in excess of 10 percent for hypertension have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.104, Diagnostic Code 7101 (2009). 4. The criteria for a 20 percent evaluation for erectile dysfunction have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.20, 4.21, 4.31, 4.115b, Diagnostic Code 7522 (2009). 5. The criteria for a total disability rating based on individual unemployability were not met prior to October 15, 2008. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 4.16 (2009). 6. The criteria for a total disability rating based on individual unemployability were met from October 15, 2008, to January 7, 2009. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 4.3, 4.16 (2009). 7. The criteria for a total disability rating based on individual unemployability after July 31, 2009, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 4.16 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Claim withdrawal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.202. A Substantive Appeal may be withdrawn in writing or on the record at a hearing at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his authorized representative. Id. The Veteran and his representative clearly indicated on the record at the November 2009 Board hearing that the Veteran wished to withdraw his appeal concerning entitlement to service connection for cognitive disorder, claimed secondary to hypertension. The Veteran has met the criteria of 38 C.F.R. § 20.204 for withdrawal of the appeal on this issue. As there remain no allegations of errors of fact or law for appellate consideration, the Board does not have jurisdiction to review the appeal as to this claim, and it will be dismissed. VA duty to notify and assist The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the Courts have been fulfilled by information provided to the Veteran by correspondence dated in July 2002, February 2007, April 2007, October 2007, January 2008, and June 2008. Those letters notified the Veteran of VA's responsibilities in obtaining information to assist in completing his claims and identified his duties in obtaining information and evidence to substantiate his claims. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006), Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006). The Board also notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008, removing the sentence in subsection (b)(1) stating that VA will request the claimant provide any evidence in the claimant's possession that pertains to the claim. 73 Fed. Reg. 23,353-23,356 (Apr. 30, 2008). As to the duty to assist, service treatment records are in the claims file, and the RO obtained VA medical records, Social Security Administration (SSA) records pertaining to the Veteran's claim for SSA disability benefits, post- service private treatment records as well as statements from past employers. The Veteran has been provided multiple VA examinations, he participated in an August 2007 conference with a Decision Review Officer at the RO and he testified at the Board videoconference in November 2009. After the Board hearing, he submitted additional evidence from a private physical with a waiver of initial consideration of that evidence by the RO. The Veteran has not indicated that he has or knows of additional evidence pertaining to his claims. Claims on appeal In this decision, the Board will decide the claims that remain on appeal, that is, service connection for vision impairment, increased rating claims for hypertension and erectile dysfunction and TIDU. Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Service connection - vision impairment Law and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Congenital or developmental defects, refractive error of the eye, personality disorders and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303(c). Service connection may 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). In order to prevail on the merits on the issue of service connection, there must be medical evidence of current disability; medical or, in certain circumstances lay, evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). A disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a) (effective before and after October 10, 2006). The United States Court of Appeals for Veterans Claims (Court) has held that when aggravation of a nonservice-connected condition is proximately due to or the result of a service-connected condition the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). Effective October 10, 2006, VA regulations were amended to include that any increase in severity of a nonservice- connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. It was noted, however, that VA will not concede a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b) (effective after October 10, 2006); see 71 Fed. Reg. 52744 (Sept. 7, 2006) (noting the revision was required to implement the Court's decision in Allen, 7 Vet. App. 439). To establish entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Factual Background and Analysis Service treatment records do not show, nor does the Veteran contend, that he had vision problems in service. The chronological records do not include complaint, finding or diagnosis of any vision impairment. At his service separation examination in July 1968, distant vision was 20/20 in each eye, and the examiner evaluated the Veteran's eyes as normal. The Veteran's service-connected disabilities include hypertension and type II diabetes mellitus. During an October 1979 VA medical examination, the examiner specifically stated that there was no eye pathology noted on examination. The Veteran contends that he has vision impairment secondary to his service-connected hypertension, and in this regard he has submitted the report from his private optometrist, C.H., at Cumberland Hill Vision. Office records dated from February 1991 to April 2007 show the Veteran underwent periodic eye examinations and was prescribed corrective lenses for refractive error. On a regular basis, the Veteran reported constant blurred vision in both eyes while reading and at distance and also reported occasional floaters/spots. Following the January 2007 examination, the optometrist noted trace cortical lens changes in both eyes. He said there were no signs of pathology or side effects due to diabetes mellitus. In a February 2007 report, the optometrist stated he advised the Veteran that the small changes and ocular health appeared within normal limits. He said he advised the Veteran that medicines such as HCTZ (hydrochlorothiazide), Trazodone, Cymbalta, and others, individually could cause blurred vision as a side effect and in combination also. The optometrist advised the Veteran to follow-up with his physician. In April 2007, the Veteran reported problems with night vision with spotting, glare, and halos. After examination, the optometrist noted glare secondary to cataracts in both eyes and said that some symptoms could well be secondary to meds and high blood pressure and other side effects. Records from the Veteran's private physician, P.E., M.D., show that at a visit in July 2007, the Veteran reported that he had developed some blurred vision over the last six months. Dr. P.E. said he had a note from the Veteran's optometrist who found his vision was "okay" and wondered if the blurred vision could be a side effect of any one of the Veteran's multiple medications. The physician noted the Veteran wondered if it was from one of his blood pressure medicines, or his Cymbalta, which he said had been the best of the different antidepressants he had been on. It was noted that the Veteran's current medications included Lipitor, Lopressor, hydrochlorothiazide, Accupriol, omeprazole, Trazodone, Cymbalta, Norvasc, Glucosamine-MSM, and Allegra. After examination, the physician said that regarding the Veteran's blurry vision, it did not sound like it was related to diabetes mellitus and the Veteran was comfortable to watch it without changing any of his medications. The physician said he tended to doubt this was a drug side effect, but anything was possible. Office notes from Dr. P.E. show that at his next visit in January 2008, on review of systems, the Veteran reported no eyesight problems. The Veteran underwent a VA eye examination in June 2008, and the physician who examined the Veteran reported that he reviewed the Veteran's claims file prior to the examination. He noted the Veteran had no history of eye diseases, eye operations, or eye injuries. At the examination, the Veteran complained of floaters in both eyes and said he had trouble focusing, especially at near. He stated he sometimes missed words and had to go over them a couple times. Following the examination, the physician stated that he did not appreciate any hypertensive retinopathy or diabetic retinopathy. The diagnosis was mild cortical cataract in both eyes unrelated to the Veteran's hypertension or diabetes mellitus. Office notes from Dr. P.E. include reports of visits in May 2008, November 2008, and December 2008. None of those records mentions any complaint, finding, diagnosis, or opinion regarding vision. At the November 2009 videoconference hearing, the Veteran testified that when his hypertension became active is the time he started having floaters and he also testified that floaters were very heavy about the time his diabetes started, which he said was in the past two to three years. He also testified that in addition to floaters he has trouble focusing while driving and reading books and doesn't pick up the written letters. He said the confusing part is that when his eyes were examined he had 20/20 vision in each eye. He testified that although he does not have any kind of specific evidence, he is pretty sure his vision problems are secondary to his service-connected hypertension. As noted above, in conjunction with his claim for service connection for vision impairment, the Veteran argues that he has vision problems that should be service-connected as secondary to his service-connected hypertension. He has made no argument for service connection for vision disability on a direct basis or as secondary to his service- connected diabetes mellitus. The Board has considered the Veteran's claim for service connection for vision impairment, but finds that service connection is not warranted on a direct basis because there is no evidence of any chronic eye disorder or vision loss in service, nor is there any basis for attributing any current vision problems to service. As outlined above, the Veteran's service treatment records include no complaint, finding, or diagnosis of chronic vision disability. Although the Veteran has said that when his hypertension became active is when he started having floaters, the earliest post-service medical records dated in the 1970s and showing treatment for hypertension include no complaints of blurred vision or floaters, and at his first VA examination for hypertension, which was in October 1979, the examiner specifically noted there was no eye pathology. The first evidence of complaints of blurred vision and floaters was not until an optometry report in June 1998, and it was not until January 2007 that traces of cataracts were noted. The passage of many years between discharge from active service and the medical documentation of a claimed disability may be considered evidence against a claim of service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Additionally, no competent evidence of record provides a link between the Veteran's current vision loss or trace cataracts and his active service, and refractive errors of the eye are not recognized as disease or injuries within the meaning of applicable VA legislation. As to the Veteran's contention that his vision problems, which he describes as blurred vision and floaters, are related to his service-connected hypertension, the Board acknowledges that in his February 2007 report pertaining to the January 2007 visit and in April 2007, the Veteran's optometrist said that various medications, including hydrochlorothiazide [one of the medications prescribed for the Veteran's hypertension] could cause blurred vision and advised the Veteran to check with his physician. In this regard, the Board notes that the United States Court of Veterans Appeals (Court) has held that the use of equivocal language such as "could have" makes a statement by an examiner speculative in nature. See Bostain v. West, 11 Vet. App. 124, 127-28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus); see also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (doctor's statement framed in terms such as "could have been" is not probative); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) ("may or may not: language by a physician is too speculative). As the optometrist's opinion is speculative, it cannot provide a competent nexus between the Veteran's claimed vision impairment and his service- connected hypertension or medication used in its treatment. The Board further notes that the Veteran's private physician said that although anything was possible, he tended to doubt that the Veteran's blurry vision was a drug side effect, which weighs against the claim. Further, that physician said it did not sound like the blurry vision was related to diabetes mellitus (which is a service-connected disability), and at the VA eye examination, the examining physician who reviewed the claims file specifically stated he found neither diabetic retinopathy nor hypertensive retinopathy. He further stated the mild cortical cataracts were unrelated to the Veteran's hypertension or diabetes mellitus. To the extent that the Veteran has argued that his claimed vision problems of blurred vision and floaters are due to his hypertension or has argued implicitly that the trace cataracts identified in 2007 are related to service or his service-connected hypertension or diabetes, the Board notes that the record does not show, nor does the Veteran contend, that he has specialized education, training, or experience that would qualify him to provide a medical opinion in this regard. Although he is competent to report observable symptoms, it is now well established that a lay person such as the Veteran is not competent to opine on matters beyond the scope of his competence such as diagnoses and opinions as to medical causation. Thus any opinion from him that trace cataracts are causally related to service or his service-connected diabetes or hypertension or that any current vision problems including blurred vision and floaters are due to his service-connected hypertension is entitled to no weight of probative value. See Cromley v. Brown, 7 Vet. App. 376, 379 (1995); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Based on the foregoing, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for vision impairment, including as secondary to his service-connected hypertension and diabetes mellitus. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine in not applicable where, as here, the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107(b); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Increased ratings - in general Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. To evaluate the severity of a particular disability, it is essential to consider its history. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. §§ 4.1, 4.2 (2009). It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2009). Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). Evaluation of disabilities based upon manifestations not resulting from service-connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses is prohibited. 38 C.F.R. § 4.14 (2009). The Court, however, has held that disabilities may be rated separately without violating the prohibition against pyramiding unless they constitute the same disability or symptom manifestations. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). The Court has also held that where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993); see Espiritu v. Derwinski, 2 Vet. App. 492 (1992). VA is free to favor one medical opinion over another provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429 (1995). Where there is a question as to which of two disability evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2009). In every instance where the Rating Schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (2009). Where a veteran's diagnosed condition does not match any of the diagnostic codes contained in the Rating Schedule, it is permissible to rate the condition under a closely related disease or injury, in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. 38 C.F.R. § 4.20 (2009). The Board observes that the words "mild," "moderate" and "severe" as used in the various diagnostic codes are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2009). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3 (2009). The Court has held that in a claim of disagreement with the initial rating assigned following a grant of service connection separate ratings can be assigned for separate periods of time, based on the facts found. See Fenderson v. West, 12 Vet. App. 119 (1999). The Board further acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time an increased rating claim was filed until a final decision is made. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Hypertension 710 1 Hypertensive vascular disease (hypertension and isolated systolic hypertension): Ratin g Diastolic pressure predominantly 130 or more 60 Diastolic pressure predominantly 120 or more 40 Diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more 20 Diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control 10 Note 1: Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. For purposes of this section, the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. Note 2: Evaluate hypertension due to aortic insufficiency or hyperthyroidism, which is usually the isolated systolic type, as part of the condition causing it rather than by a separate evaluation. Note 3: Evaluate hypertension separately from hypertensive heart disease and other types of heart disease. 38 C.F.R. § 4.104, Diagnostic Code 7171 (2009) Review of the record shows that in a November 1979 rating decision, the RO granted service connection for hypertension with a 10 percent rating effective from April 1979. The 10 percent rating was continued in subsequent rating decisions. In a statement received at the RO in May 2002, the Veteran said he wanted to initiate a claim for an increased rating for his hypertension. In a history and physical examination report from Roger Williams Medical Center in conjunction with back surgery in August 2001, blood pressure was 120/80. VA outpatient records show blood pressure readings were 110/80 and 132/76 in September 2001, 146/90 in March 2002, and 136/90 in April 2002, and in those records it was noted that medication for hypertension was prescribed by his private physician, Dr. P.E. At a VA examination in October 2002, blood pressure was 144/82, recheck on the right was 152/98, and recheck on the left was 166/102. The examiner noted the blood pressure was under moderate control and that the Veteran was taking medications though his private doctor. At a VA outpatient visit in January 2003, blood pressure was 124/82, and at a VA neurological examination in March 2003, blood pressure was 120/80. At an office visit to Dr. P.E. in July 2003, blood pressure was 130/82, and in January 2004, blood pressure was 110/80. Later records show that at a VA outpatient visit in April 2005, it was noted that in September 2004 the Veteran's blood pressure had been up while taking Vioxx following back surgery. At the April 2005 visit, blood pressure was 144/100 on recheck. The physician noted that the blood pressure was not well controlled on Accupril 40 mg in the office but the Veteran asserted it was often normal or lower; the examiner said that the regimen would not be changed on isolated readings. At a visit to Dr. P.E. in November 2005, blood pressure was 130/90. At VA in December 2005, blood pressure was 130/90, and it was noted that the Veteran continued on Accupril 40 mg. Records from R.M., M.D., a private cardiologist, show he first saw the Veteran in May 2006. At that time he gave a long history of hypertension and said he had had chest discomfort for years. On examination, blood pressure was 140/110 in the right arm and 150/110 in the left arm at the beginning of the examination; at the end it was 150/110, and it was 160 by palpation in the leg. The cardiologist's impression was that the Veteran had inadequately controlled hypertension. He prescribed hydrochlorothiazide. At a visit in June 2006, the Veteran said he had had two brief episodes of chest pain since the last visit. At the June 2006 visit, blood pressure was initially 135/95 and was 130/95 at the end of the visit. Dr. R.M. stated it was his impression that the Veteran had moderately controlled hypertension and moderate aortic stenosis. He added Norvasc 2.5 mg a day and asked the Veteran to decrease his alcohol intake. The Veteran returned in July 2006 because of episodes of burning chest pain. His blood pressure was 160/100, and his heart rate was 104. The impression was that the Veteran's chest pain syndrome was not ischemic in origin. The physician commented that the Veteran's blood pressure remained quite elevated as did his heart rate. He increased the Norvasc to 5 mg a day and added Lopressor 25, twice a day. At a follow-up visit in late July 2006, blood pressure was 115/90, and heart rate was 100 and regular. The cardiologist stated it was his impression that the Veteran's blood pressure was better controlled. The cardiologist reviewed a list of home readings in July and stated they were generally good but the Veteran occasionally had systolics over 140 and diastolic over 100. He increased Lopressor to 50 twice a day. The highest readings on the list of home blood pressures (dated from mid-July to the date of the office visit in late July) were 180/102, 150/80, 162/88, 144/108, 164/100, and 140/100. At a VA examination in August 2006, blood pressure readings were 126/96, 124/96, and 130/92. Eye examination showed no palperbral edema, no mild AV nicking, no neovascularization, and no hemorrhage. In September 2006, Dr. P.E. noted the Veteran had been working with his cardiologist on blood pressure control and on a few visits there his blood pressure was significantly elevated resulting in multiple adjustments in medication. At the September 2006 visit to Dr. P.E. blood pressure was 110/80. When the Veteran saw Dr. R.M. in October 2006, blood pressure initially was 125/85 and at the end of the exam was 105/70. The physician commented that his impression was that blood pressure was a little bit on the low side, and he adjusted the Veteran's medication. At VA examination in November 2006, blood pressure was 130/96. When the Veteran returned to Dr. R.M. in December 2006, blood pressure was 100/75, and the physician said his impression was that blood pressure was under good control. At Dr. P.E.'s office in January 2007, blood pressure was 110/70. At a visit to Dr. R.M. in April 2007, blood pressure was 115/85, and the physician's impression was well-controlled hypertension. In June 2007, blood pressure was 120/90. Dr. R.M. commented that the Veteran's blood pressure remained very labile, but had been well controlled at his last two visits. In a letter dated in July 2007, Dr. R.M. stated that Veteran's blood pressure had been very difficult to treat because of its lability. When Dr. P.E. saw the Veteran in July 2007, blood pressure was 120/90. At a VA examination in August 2007, blood pressure readings were 118/76, 106/76, and 112/78. The examiner noted the Veteran's prescribed medications and that he had well-documented labile blood pressure. She stated that blood pressure was well controlled and within normal limits on three separate readings. At Dr. R.M.'s office in November 2007, blood pressure was 130/95; it was 120/90 in December 2007. At a VA examination in December 2007, blood pressure was 106/80. At a January 2008 visit to Dr. P.E., blood pressure was 110/80, and at a VA examination in February 2008, blood pressure was 108/76. On the same date in June 2008, blood pressure was 150/78 at a VA heart examination and 140/90 at a VA genitourinary examination. At visits to Dr. P.E., blood pressure was 100/70 in May 2008, 124/88 in November 2008, and 130/85 in December 2008. The Veteran underwent a VA heart examination in April 2009, and at that time it was noted he had a history of aortic stenosis and had undergone aortic valve replacement at Miriam Hospital in January 2009. At the April 2009 examination, blood pressure was 115/77. At a VA outpatient visit in August 2009, it was noted that the April 2009 blood pressure was 115/77. At the November 2009 hearing, the Veteran testified that he realized that blood pressure readings had been normal at VA examinations. He testified that he monitored his blood pressure on a daily basis and for several days in the recent past the morning reading had been 157 over close to 90, and he said his pressure fluctuated during the day. He testified that his physician had adjusted his medication when he saw him a couple days before the hearing. Based on the evidence of record, the Board finds that at no time during the appeal has the Veteran's hypertension been manifested by diastolic pressure readings predominately 110 or more, or systolic pressure readings predominantly 200 or more, which is required for the next higher, or 20 percent, rating. See 38 C.F.R. § 4.104, Diagnostic Code 7101. The Board acknowledges that the Veteran has reported, and his cardiologist has confirmed, difficultly controlling fluctuations in his hypertension. The Board notes, however, that reported readings have always been below those required for the next higher, 20 percent rating, and medication adjustments have maintained readings well within the criteria for the presently assigned 10 percent rating. As there is nothing in the record to suggest that the schedular criteria are inadequate, or that the disability picture presented by the hypertension is somehow exceptional, referral for extraschedular consideration is not indicated. See 38 C.F.R. § 3.321 (2009); Thun v. Peake 22 Vet. App. 111 (2008). The Board has considered the evidentiary rule requiring that reasonable doubt be resolved in a claimant's favor (38 C.F.R. §§ 3.102, 4.3). However, as the preponderance of the evidence is against this claim, that rule does not apply. The claim must be denied. Erectile dysfunction In September 2003, the RO granted service connection for erectile dysfunction with a noncompensable rating from the date of receipt of the service connection claim in May 2003. Effective the same date, the RO granted special monthly compensation based on loss of use of a creative organ. The current claim for an increased (compensable) rating for erectile dysfunction was filed in January 2007. Erectile dysfunction is not listed in the Rating Schedule; however, when an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. §§ 4.20, 4.27. The Veteran's erectile dysfunction has been rated as follows: 752 2 Penis, deformity, with loss of erectile power 201 1Review for entitlement to special monthly compensation under §3.350 of this chapter. In conjunction with his claim for an increased rating, the Veteran submitted a January 2007 letter from Dr. P.E. who stated that the Veteran has a deformity of the penis with loss of erectile function. At a VA genitourinary examination in February 2007, the Veteran reported that he began having erectile dysfunction approximately seven or eight years ago worsening over the past few years. He stated he only got about half of an erection and it was not firm enough for penetration and it was not long lasting. He reported a strong libido but said he had had no luck with Viagra, Levitra, or Cialis, although he had had luck with Viagra in the past. He said he had not tried MUSE, Caverject, or VED. The Veteran described his penis as small and retracted. He stated he was informed he was circumcised but now believed he had a foreskin and stated this was because his penis had retracted. The diagnosis after exanimation was erectile dysfunction. The nurse practitioner said the phallus was normal in appearance and had been normal in appearance at a previous examination in 2003. Office notes from a private urologist, B.M., M.D., show that in March 2007, the Veteran reported his penis was getting smaller. He complained of continued erectile dysfunction and said he wanted spontaneity. In a statement dated in October 2007, the Veteran said that in office visits to Dr. B.M he had described how his penis had gone from a non-overlapping skin over the head of his penis to an overlapping skin, which closed at the end. The Veteran said that this was his interpretation of a deformity of his penis. He said he complained a number of times regarding the shrinkage of his penis to his primary care physician, Dr. P.E., and that Dr. P.E. understood that he took this issue very seriously as a deformity of his penis. The Veteran said about six years ago, when he had weighed 285 pounds and his legs and abdomen were enlarged, his penis did not have an overlapping foreskin nor did his penis pull back into the groin. He said that it was not until the past couple years that he had had the overlapping foreskin and his penis and testicles had receded into his groin area. He said his current weight was 248 pounds and his abdomen no longer protruded as it had when he weighed more, yet penis retraction and overlapping skin had increased and his penis size had significantly decreased. The Veteran also said that for the past three years and continuing to the present time, even with foreplay and prescribed medication, he had had no erection. When the Veteran saw his general physician, Dr. P.E., in January 2008, he complained of inadequacy of penile erection and said that medications did not help. In a letter dated in April 2008, Dr. B.M. said the Veteran had been a urologic patient of his since 1996 and had undergone a transurethral resection of the prostate (TURP) in 1997. He said that recently the Veteran had been complaining of erectile dysfunction. The physician said that he felt that while a small portion of the erectile dysfunction may be secondary to the TURP, it was far more likely that the Veteran's [service-connected] hypertension and diabetes were the cause of his erectile dysfunction. At a VA genitourinary examination in June 2008, the Veteran gave a history of erectile dysfunction for approximately eight or nine years, with more over the past few years. He reported no luck with Viagra, Levitra, and Cialis although he had had luck with Viagra in the past. He said he had not tried Caverject or EED. On examination, the physician said the Veteran had some penile deformity. He said the Veteran had a small penis and it retracted a little bit. He said the Veteran was not circumcised. The diagnosis was erectile dysfunction. In a letter dated in July 2008, the Veteran's private urologist, Dr. B.M., said the Veteran had been his urologic patient since 1996 and had undergone TURP procedures in 1997 and 2003. The physician said the Veteran complained of erectile dysfunction, which was probably secondary to hypertension and diabetes. He said this had been increasing despite the use of Viagra and that the Veteran had been given information regarding the vacuum erection device and MUSE therapy. In a letter dated in July 2008, the Veteran's wife said that for the past five years or so the Veteran had not been able to sustain and erection during intercourse. She said this problem started slowly but for the last four years there had been no possibility of an erection, even with the use of Viagra. In a letter dated in November 2009, Dr. B.M. repeated that the Veteran had been his urologic patient and had undergone TURPs in the past. He said the Veteran has erectile dysfunction, which apparently under government vocabulary is described as a penis deformity with loss of erectile power. The physician said the Veteran's erectile function had failed treatment with Viagra therapy. Based on the foregoing, the Board concludes that a 20 percent rating is warranted under Diagnostic Code 7522. The loss of erectile power has been adequately established. A deformity is a "distortion of any part or general disfigurement of the body..." Dorland's Illustrated Medical Dictionary 481 (30th ed. 2003). There is no specific requirement that the deformity be traumatic in nature. The footnote in 38 C.F.R. § 4.115b dictates that special monthly compensation should be considered with the schedular rating. See 38 C.F.R. §§ 4.14, 4.115b. Loss of erectile power has been established clearly by the evidence outlined above. As to deformity of the penis, although the nurse practitioner who examined the Veteran in February 2007 said the phallus was normal in appearance, medical records and statements from the Veteran show he has complained of shrinkage of his penis, and his private physician, Dr. P.E., in January 2007, and the VA physician who examined the Veteran in June 2008 have said he has penile deformity. Based on this, the Board finds that throughout the appeal period the Veteran's has had loss of erectile power and deformity of the penis characterized by shrinkage and retraction of the penis. As such, the Veteran's erectile dysfunction symptoms more nearly approximate the criteria for a 20 percent rating than the noncompensable rating, so with application of the provisions of 38 C.F.R. § 4.7 and resolution of all reasonable doubt in favor of the Veteran, the Board concludes that the criteria for a 20 percent rating under Diagnostic Code 7522 have been met. This is the highest schedular rating under Diagnostic Code 7522. The Board has considered the possibility of a higher evaluation different rating code, but there is no other rating code that is more appropriate for evaluation of the Veteran's disability. As to this issue, there is nothing in the record to suggest that the schedular criteria are inadequate, or that the disability picture presented by the Veteran's erectile dysfunction is somehow exceptional, referral for extraschedular consideration is not indicated. See 38 C.F.R. § 3.321 (2009); Thun v. Peake 22 Vet. App. 111 (2008). TDIU Laws and Regulations Total disability will be considered to exist when there is present any impairment of mind or body, which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. See 38 C.F.R. § 3.340 (2009). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service- connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; (2) Disabilities resulting from common etiology or a single accident; (3) Disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular- renal, neuropsychiatric; (4) Multiple injuries incurred in action; or (5) Multiple disabilities incurred as a prisoner of war. See 38 C.F.R. § 4.16. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service- connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the Veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. See 38 C.F.R. § 4.16(a). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, in the case of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet these schedular percentage standards, the case should be submitted to the Director, Compensation and Pension Service, for extra- schedular consideration. The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. See 38 C.F.R. § 4.16(b). If the schedular rating is less than 100 percent, the issue of unemployability must be determined without regard to the advancing age of the Veteran. See 38 C.F.R. §§ 3.341(a), 4.19. Factors to be considered are the Veteran's education, employment history, and vocational attainment. See Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). A high disability rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. However, the question in a total rating case based upon individual unemployability due to service-connected disabilities is whether the Veteran is capable of performing the physical and mental acts required by employment and not whether the Veteran is, in fact, employed. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Factual Background and Analysis In a rating decision dated in January 2008, the RO awarded an increased rating, from 10 percent to 60 percent, for the Veteran's hypertensive heart disease effective October 31, 2007. The Veteran filed his TDIU claim in January 2008. In addition to hypertensive heart disease, the Veteran's service-connected disabilities are hypertension, type 2 diabetes mellitus, and erectile dysfunction. In a statement dated in February 2008, the Veteran said his work day was limited and he became tired and had chest discomfort after a half hour of light labor. He said that when he was able to put in four hours of light labor, he had to rest the next day and that when he worked more than four hours he experienced shortness of breath, chest pain, and dizziness. He said he could not do painting or routine repairs on the three-family dwelling he owns and could not do moderate or heavy yard work. He said he had no skills other than laboring, which he could no longer do. On a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, received in February 2008, the Veteran stated hat his heart and diabetes were the service-connected disabilities that prevented him for securing or following any substantially gainful occupation. He stated that he had completed high school and had last worked full time in 1985. He said the most he ever earned in one year was $20,000 as a mail handler in 1984. He said he became too disabled to work in February 2006 and reported in the last five years in which he worked, he had worked 25 hours a week as a driver for Johnson & Wales from January 2000 to November 2000 and had worked 15 hours a week for Wheeler School from January 2000 to August 2000. In addition, he reported he had worked 16 hours a week as a driver for Epoch Assisted Living from February 2005 to April 2005 and had worked four hours a week as a driver for L & L Limousine from June 2005 to February 2006. He stated that he received Social Security Disability Income that was not related to his heart disability. Records from the Social Security Administration (SSA) show that in a Disability Determination and Transmittal, Form SSA-831-C3, dated in December 2001, the Veteran was awarded SSA disability benefits and the disability began in November 2000. The primary diagnosis was discogenicc and degenerative disorders of the back, and the secondary diagnosis was carpal tunnel syndrome. In response to a VA request for employment information, Epoch Assisted Living reported in March 2008 that the Veteran had worked as a driver from February 2005 to April 2005 and had lost no time due to disability. In a statement received in April 2008, Johnson & Wales reported the Veteran had worked there as a driver, 20 hours a week from January 2000 to November 2000. In April 2008, AL & L Limousine Company reported the Veteran worked there as a driver for 6 hours a week from June 2005 to February 2006. In terms of concessions, the employer said the Veteran was unable to drive long distances due to stress and he was given limited runs. The employer said the reason for the termination was "stress/high blood pressure." In a letter dated in June 2008, the business manager of The Wheeler School stated that the Veteran had been an on call, part- time bus driver for the school, his hire date was in September 1998 and he worked for the school for approximately two years. The business manager said the school no longer had payroll records for the Veteran. Records from Medicine Associates dated in November 1997 include a history of the Veteran having wrenched his back in April 1996 when he was working driving a passenger van at the airport. The Veteran said he did not report the injury to his employer, but over the following week or so he ended up being fired, apparently for unrelated circumstance. It was noted that the Veteran had had previous back injures related to work at the post office and had been out of work for approximately nine years prior to the brief employment in April 1996. Office notes from Dr. P.E. show that at an annual review visit in January 2008, the physician noted that in December 2007 the Veteran's blood sugars became elevated and he had been started on metformin. The Veteran complained of dyspnea on exertion and occasional chest pain. Dr. P.E. said the question was whether the Veteran was just out of shape and overweight or whether this was related to his aortic stenosis. On review of systems, it was noted there was occasional chest pain or discomfort with extra exertions and very few palpitations with better blood pressure control. After examination and review of history, Dr. P.E. commented that the Veteran's aortic stenosis had progressed to some degree and he thought the Veteran understood that at some point he probably would need cardiac catheterization and aortic valve replacement. Dr. P.E. said the current plan was for the Veteran to gradually work on exercise and conditioning and see how his functional level responded. At a February 2008 VA examination for the Veteran's diabetes mellitus, it was noted the Veteran's military occupational specialty in service was electrician. After service he retired as an electrician in 1990 but stated that he last worked around 1995 doing some driving. He stated that he left work due to his deteriorating health, specifically orthopedic conditions. At the examination, the Veteran denied any specific restrictions in his activities related to his diabetes. After examination and review of the record, the diagnosis was diabetes mellitus, type two, on oral agents. The physician said there was no objective evidence of diabetes-related microvascular, macrovascular, or nonvascular complications. Office notes from Dr. P.E. show that in May 2008 the Veteran was seen at a follow-up visit. He reported that he exercised in the swimming pool and stated that he jogged in the pool for one and a half miles and then had to slow down for shortness of breath. He said that recently he had had little dizziness, no chest pain, no syncope, and no near syncope. After examination, the physician advised the Veteran to continue current medications and stated his diabetes was well controlled based on his current glycohemoglobin. The physician noted that the Veteran's aortic stenosis had tolerated his increase in exercise and the Veteran knew at some point he might need surgery. At a VA examination in June 2008, the physician noted that he had been asked to evaluate the Veteran and to state the extent of his functional impairment due to his service- connected hypertension, hypertensive cardiovascular disease. The physician said his opinion was based on interview and examination of the Veteran as well as review of the claims file. He noted the Veteran had a history of hypertension, aortic valve disease with moderate aortic stenosis and dilated aortic root. At the examination, the Veteran said he experienced chest pains, which he said appeared at any time. He said they would develop these pains in his chest after he had been working four hours or so. He also said he became fatigued and was unable to work for this reason. The physician who conducted the June 2008 VA examination referred to a July 2007 letter the Veteran's private cardiologist, Dr. R.M., in which Dr. R.M. stated the Veteran was under his care for labile hypertension, elevated cholesterol, moderate aortic stenosis and mildly dilated. He noted that Dr. R.M. stated the Veteran's preoccupation with his physical condition had interfered with his ability to function normally. The physician examined the Veteran and said that based on the limited information available, it did not appear that the Veteran had significant functional limitations related to his cardiac disease. He said that he did not know the degree of the Veteran's aortic stenosis but his clinical examination did not suggest a severe aortic stenosis. The physician said that based on the interview of the Veteran it did not appear that his functional limitations were significant. He said he would estimate the Veteran's functional level at approximately eight METs. He said he did not find any significant limitation from the Veteran's hypertension or hypertensive cardiovascular disease that would render him unemployable, except for employment that would require significant physical exertion. At the June 2008 VA genitourinary examination, the physician stated that the Veteran's erectile dysfunction did not preclude him from either physical or sedentary employment. In a letter dated in October 2008, the Veteran's cardiologist, Dr. R.M., said the Veteran had several cardiac conditions. He said he had hypertension, elevated cholesterol, at least moderate aortic stenosis, which was worsening, dilation of his aorta, diabetes, and left ventricular dysfunction on a nuclear stress test in May 2007. Dr. R.M went on to say the Veteran had multiple symptoms, including chest pain, shortness of breath, dyspnea on exertion, decreased exercise tolerance, and periods of presyncope. The physician said it was impossible to tell which of these symptoms were related to his hypertension or his aortic stenosis. Dr. R.M. said he felt the Veteran was unable to be employed, either part time or full time, because of his symptoms. Dr. P.E.'s records show that in November 2008 the Veteran presented with complaints of decreasing exercise capacity. The Veteran reported that in the past week, while walking on a trail, he developed left-sided chest pain and shortness of breath. He stated that the trail was a flat surface and not very strenuous and he had walked on the trail before without any complications. He said he was able to complete the one mile walk during which time the symptoms persisted, but with 20 minutes of rest the symptoms resolved. The Veteran stated that he had had no symptoms at rest. He reported that he typically walked up and down an Olympic-size swimming pool and had continued to do this with no chest pains or shortness of breath during this exertion. It was noted that on a current electrocardiogram (EKG) there was perhaps more evidence of left ventricular hypertrophy compared to an EKG done in January 2008. The assessment was chest pain/shortness of breath, and further evaluation was recommended. The report of a November 2008 cardiovascular history and physical examination at The Miriam Hospital shows the Veteran's presenting complaint was history of aortic valvular disease now with increased dyspnea on exertion and chest pressure for the past few months. He denied resting symptoms or nocturnal symptoms. He reported he was able to fast walk in water daily and had been able to do this for up to and hour but at the time of the examination could do the walking in water for less than 30 minutes. He denied paroxysmal nocturnal dyspnea, edema, or rest dyspnea. After examination, the Veteran was cleared for cardiac catheterization. The cardiac cauterization revealed normal coronary arteries and hemodynamics. After multiple attempts the aortic valve was not crossed. The physician said it was likely the Veteran had severe aortic stenosis. When the Veteran saw Dr. P.E. in early December 2008, he reported he could get short of breath and chest tightness rather easily and might feel dizzy when he stood up from a bent over position, but had no syncope or near syncope. The Veteran said he had had a cardiac catheterization and had been told his aortic valve was very tight. He was scheduled to see a heart surgeon and was expecting to have aortic valve surgery in the near future. After examination, Dr. P.E. said the Veteran was stable to proceed with open-heart surgery. He further noted that the Veteran had lumbar and cervical disc disease and had had surgery on his low back and neck in December 2001 and had had another surgery on his cervical spine in July 2004. He said that MRIs in June 2007 showed fusion hardware with laminectomies. The Veteran underwent aortic valve replacement at The Miriam Hospital on January 7, 2009, and was discharged to home five days after the surgery. At a VA examination in April 2009, the physician noted the Veteran had a recent aortic valve replacement done in January 2009. The Veteran said that since the surgery he was feeling better with improvement of his exercise capacity. He said that he still felt tired and said he "cannot do work" and had to have other people do things for him. He said he felt his breathing was "off" and said he had chest pain following the surgery. The physician said this was likely incisional chest pain. On cardiac examination, the heart sounds were normal in intensity, and the physician said he could appreciate no murmur or gallop. Examination of the extremities revealed no edema. The physician said it would certainly appear from the Veteran's history that there was no increase in severity of his condition as he could not elicit any history of worsening symptoms. In an addendum to the report, the physician said that because an exercise evaluation was not available he needed to make an estimate of the Veteran's functional capacity. He said that based on information provided by the Veteran, but with no objective testing, he would estimate the Veteran's functional capacity at from 3 to 5 METs. In a follow-up e-mail correspondence in July 2009, it was noted that the Veteran had stated he would have an exercise stress test performed outside VA, but had not communicated the results to VA. In a statement dated in July 2009, the physician who conducted the April 2009 examination said that based on the estimated functional capacity of 3 to 5 METs, it would be expected that the Veteran would be capable of only sedentary employment or employment requiring only light physical activity with no prolonged standing, no repetitive lifting of more than five pounds, no repetitive bending, and no climbing. At a VA outpatient visit in August 2009 to establish care and get medications from VA, the Veteran denied chest pain or acute shortness of breath. He said he continued to have joint pains and had tried many different medications that did not work very well. Medications were continued. In an October 2009 rating decision, the RO awarded a temporary total (100 percent) rating based on convalescence for aortic valve replacement from January 7, 2009 through July 31, 2009. At the November 2009 hearing, the Veteran testified that he had in the past worked as an electrician, but stopped working full time as electrician about 20 years ago. He testified that he stopped because he was too nervous and was on a lot of medications for his nerves. He testified that years later he applied for and received Social Security disability benefits and the basis for the award was arthritis throughout his body. As noted earlier, VA records show service connection has been established for four disorders: status post aortic valve replacement (previously rated as hypertensive heart disease) rated as 60 percent disabling before and after the convalescent period following surgery; erectile dysfunction, currently rated as 20 percent disabling; type 2 diabetes mellitus, currently evaluated as 20 percent disabling; and hypertension, currently rated as 10 percent disabling. Combining these evaluations using the combined ratings table found in 38 C.F.R. § 4.25, the Veteran's combined service- connected disability rating is 80 percent, and the schedular rating criteria for TDIU consideration under 38 C.F.R. § 4.16(a) are met. Because the Veteran was in receipt of a 100 percent rating from the date of his aortic valve surgery in January 2009 through July 2009, the question regarding the TDIU claim is entitlement to TDIU before and after those dates. As noted previously, the probative question in TDIU claims is whether service-connected disabilities preclude a claimant from engaging in substantially gainful employment (i.e., work that is more than marginal, that permits the individual to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). Initially, the Board notes that the evidence clearly shows that the Veteran is not capable of performing heavy labor and may not be able to work as an electrician to the extent that that work might require climbing or repetitive bending. The evidence does not, however, show that throughout the appeal period the Veteran has been precluded from engaging in any substantially gainful employment. There is no suggestion that erectile dysfunction interferes with employment, and there is no evidence of any restrictions associated with the Veteran's diabetes. Further, although the medical evidence dated prior to October 2008 shows the Veteran at times reported chest pains after physical exertion, he maintained an exercise program and the physician who conducted the June 2008 VA examination said he did not find any significant limitation from the Veteran's hypertension or hypertensive cardiovascular disease that would render him unemployable, except for employment that would require significant physical exertion. Based on this, and the evidence showing the Veteran has a high school education and work history as a driver, which is consistent with light physical activity, the Board finds that the preponderance of the evidence is against the award of TDIU prior to October 15, 2008. In his October 15, 2008, letter, the cardiologist, Dr. R.M, said that at that time the Veteran had multiple symptoms including chest pain, shortness of breath, dyspnea on exertion, decreased exercise tolerance, and periods of presyncope, which he felt prevented the Veteran from being employed. In addition, when he was examined in November and December 2008, the Veteran had decreased exercise capacity, increasing chest pain, shortness of breath and dizziness and it was determined he had severe aortic stenosis. Resolving all reasonable doubt in favor of the Veteran, the Board finds that symptoms associated with the Veteran's service- connected disabilities were of such severity that they precluded all forms of gainful employment from October 15, 2008, to January 7, 2009, the date of his aortic valve replacement, warranting a TDIU rating during that period. As to the period following the aortic valve replacement, the evidence shows that by the time of the April 2009 VA examination the Veteran was feeling better with improvement in his exercise capacity. Although the Veteran said he could not do work, after examination of the Veteran the physician concluded that based on estimated functional capacity, the Veteran would be capable of only sedentary employment or employment requiring little physical activity. By the time of the August 2009 VA outpatient visit, the Veteran denied chest pain or acute shortness of breath. Based on this evidence, the Board finds that for the period after the convalescent period that ended July 31, 2009, the preponderance of the evidence is against finding the Veteran's service-connected disabilities precluded all forms of substantially gainful employment. In this regard, the medical evidence indicates the Veteran is capable of light physical activity and this is consistent with his work history, which includes experience as a driver. The Board therefore concludes that for the period from August 1, 2009, the claim of entitlement to TIDU must be denied. (CONTINUED ON NEXT PAGE) ORDER Service connection for cognitive disorder, claimed secondary to service-connected hypertension, is dismissed. Service connection for vision impairment, claimed secondary to service-connected hypertension, is denied. A rating in excess of 10 percent for hypertension is denied. A 20 percent rating is granted for erectile dysfunction subject to the law and regulations pertaining to the payment of monetary benefits. A total disability rating based on individual unemployability is denied for the period prior to October 15, 2008. A total disability rating based on individual unemployability is granted from October 15, 2008, to January 7, 2009, subject to the law and regulations pertaining to the payment of monetary benefits. A total disability rating based on individual unemployability from August 1, 2009, is denied. ____________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs