Citation Nr: 1013530 Decision Date: 04/09/10 Archive Date: 04/29/10 DOCKET NO. 07-27 265 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to a total disability evaluation based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from October 1984 to October 1988 and from May 1989 to May 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. This decision was issued to the Veteran and his service representative in September 2006. Although the Veteran initially requested a videoconference Board hearing in September 2007, he subsequently withdrew his Board hearing request in October 2008. After this appeal was certified to the Board in October 2008, the Veteran submitted additional evidence directly to the Board in March 2009. In February 2010, the Veteran's representative waived RO consideration of this evidence in the first instance. Hence, the Board will adjudicate the appeal with consideration of all evidence of record irrespective of when the evidence was submitted. See 38 C.F.R. § 20.1304(c) (2009. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained. 2. Service connection is in effect for irritable bowel syndrome, evaluated as 30 percent disabling effective June 30, 2002, for depressive disorder associated with arthralgias in multiple joints, headaches, and fatigue, evaluated as 30 percent disabling effective October 14, 2005, for arthralgias in multiple joints, headaches, and fatigue, evaluated as 20 percent disabling effective June 30, 2002, for idiopathic fasciculation (claimed as muscle twitching) as due to an undiagnosed illness, evaluated as 10 percent disabling effective June 30, 2002, for tinnitus, evaluated as 10 percent disabling effective March 26, 2003, for chondromalacia patella of the bilateral knees, evaluated as 10 percent disabling in each knee effective June 30, 2003, for left shoulder tendonitis, evaluated as 10 percent disabling effective June 30, 2003, for post-operative scar tissue, evaluated as zero percent disabling effective March 26, 2003, and for chronic sinusitis with nosebleeds as due to an undiagnosed illness, evaluated as zero percent disabling effective June 30, 2003; the Veteran's combined disability evaluation for compensation is 80 percent effective October 14, 2005. 3. The Veteran's service connected disabilities do not render him unable to secure and follow a substantially gainful occupation. CONCLUSION OF LAW The criteria have not been met for award of a TDIU or for referral of the matter for extraschedular consideration. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, VCAA letters were sent to the Veteran in January and April 2006 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in obtaining evidence. Moreover, the April 2006 letter informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date. These letters were issued prior to the adverse determination on appeal. Accordingly, no further development is required with respect to the duty to notify. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records and post service treatment records and examination reports. In this case, the Veteran was provided with multiple VA examinations in February 2006 which addressed his contention that he was totally disabled solely because of his service-connected disabilities. The RO also has obtained the Veteran's VA Vocational Rehabilitation and Education (VR&E) folder. Moreover, the Veteran's statements and statements from laypersons in support of the claim are of record. The Board has reviewed such statements carefully and concludes that no available outstanding evidence has been identified. The Board also has perused the medical records for references to additional treatment reports not of record but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. Noted by the Board is a January 2010 letter addressed to a law firm from "T.N.", D.O. Dr. T.N. stated that the Veteran had obtained services of the firm to assist in "his appeal to get Social Security Disability benefits and to be determined unemployable" and provided information as to the Veteran's medical conditions. Although the Veteran has been informed of his responsibilities to inform VA of evidence relevant to his claims he has not made any mention of records held by the Social Security Administration (SSA) relevant to his claim for a TDIU. The Board finds that this letter standing alone does not provide a basis for delaying adjudication of the Veteran's claim to seek out SSA disability records. The physician's use of the word "appeal" the Board finds insufficient to establish that the Veteran has actually filed a claim for SSA benefits as opposed to contemplation of such a claim. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Veteran contends that he is entitled to a TDIU because his service-connected disabilities preclude him from securing or following substantially gainful employment. Specifically, when he filed his TDIU claim in January 2006, the Veteran contended that his service-connected irritable bowel syndrome, idiopathic fasciculation (which he characterized as "muscle spasms"), chondromalacia patella of the bilateral knees (which he characterized as "knees"), and left shoulder tendonitis (which he characterized as "shoulders") prevented him from securing or following any substantially gainful occupation. As noted, service connection is in effect for irritable bowel syndrome, evaluated as 30 percent disabling effective June 30, 2002; for depressive disorder associated with arthralgias in multiple joints, headaches, and fatigue, evaluated as 30 percent disabling effective October 14, 2005; for arthralgias in multiple joints, headaches, and fatigue, evaluated as 20 percent disabling effective June 30, 2002; for idiopathic fasciculation (claimed as muscle twitching) as due to an undiagnosed illness, evaluated as 10 percent disabling effective June 30, 2002; for tinnitus, evaluated as 10 percent disabling effective March 26, 2003; for chondromalacia patella of the bilateral knees, evaluated as 10 percent disabling in each knee effective June 30, 2003; for left shoulder tendonitis, evaluated as 10 percent disabling effective June 30, 2003; for post-operative scar tissue, evaluated as zero percent disabling effective March 26, 2003; and for chronic sinusitis with nosebleeds as due to an undiagnosed illness, evaluated as zero percent disabling effective June 30, 2003. The Veteran's combined disability evaluation for compensation is 80 percent effective October 14, 2005. See 38 C.F.R. § 4.25 (2009). The schedular rating criteria are designed to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. A Veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating 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, this disability 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, 4.16(a). Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion but not to his age or the impairment caused by any non-service- connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Where a Veteran is unemployable by reason of his or her service-connected disabilities, but they fail to meet the percentage standards set forth in § 4.16(a), TDIU claims should be submitted to the Director, C&P Service, for extraschedular consideration. 38 C.F.R. § 4.16(b). The Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance. Instead, the Board must refer any claim that meets the criteria for referral for consideration of entitlement to TDIU on an extraschedular basis to the Director, C&P Service. The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the Veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). In determining whether the Veteran is entitled to a TDIU, neither his nonservice-connected disabilities nor his age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Court has held that the central inquiry in determining whether a Veteran is entitled to a TDIU is whether service- connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). The test of individual unemployability is whether the Veteran, as a result of his service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation which is consistent with his education and occupational experience. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. In Thun v. Peake, 22 Vet. App. 111 (2008), the Court determined that the threshold factor for extraschedular consideration is a finding by the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. See also Fisher v. Principi, 4 Vet. App. 57, 60 (1993); 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual pt. III, subpart iv, ch. 6, sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extraschedular consideration is required. See VA Gen. Coun. Prec. 6-1996 (Aug. 16, 1996). If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, however, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director, C&P Service, for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. The Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to a TDIU on any basis. Although the Veteran's current combined disability evaluation for compensation is 80 percent, there is no single service-connected disability ratable at 40 percent or more such that he is entitled to a TDIU on a schedular basis. See 38 C.F.R. § 4.16(a). There also is no evidence that the Veteran is unemployable solely by reason of his service- connected disabilities such that he is entitled to a TDIU on an extraschedular basis. See 38 C.F.R. § 4.16(b). As noted, when he filed his TDIU claim in January 2006, the Veteran contended only that his service-connected irritable bowel syndrome, idiopathic fasciculation (which he characterized as "muscle spasms"), bilateral knee chondromalacia patellae, and left shoulder tendonitis (which he characterized as "shoulders") rendered him unable to secure and maintain any substantially gainful occupation. Since that time service connection has been awarded for depressive disorder and the Board has also considered whether his service connected depressive disorder, acting alone or together with the already identified service connected disabilities, render him unable to secure and follow a substantially gainful occupation. He contended that these disabilities had affected his full- time employment in March 2004 when he had last worked full- time and when he had become too disabled to work. Reports from the Veteran's three most recent employers included a period of time when he was self-employed and indicate that he stopped working for himself in June 2000 "due to disability." Another former employer, with whom the Veteran worked installing cable, reported in a VA FORM 21-4192 dated April 2006, that the Veteran resigned from his employment with them in March 2004 and moved out of state. Another former employer, identified as a framing company, reported in VA FORM 21-4192 dated in April 2006, that the Veteran voluntarily quit his job at this company in September 2005 after working as a driver on an as needed basis. With the exception of the Veteran's statement that he had stopped working for himself in June 2000 "due to disability," there is no indication from reports provided by his former employers that his service-connected disabilities rendered him unable to find and maintain substantially gainful employment. As to that report by the Veteran, the report was made during the course of the appeal and provides nothing more than a reiteration of the Veteran's contention that he is unable to work due to disability. The Veteran's VA outpatient treatment records, to include multiple VA examination reports, also show that, despite his repeated complaints of continuing disability, there is no objective medical evidence that he is unemployable solely as a result of his service-connected disabilities. For example, VA examination for individual unemployability on February 22, 2006 was conducted in response to the RO's request to determine if the Veteran was unemployable as a result of his service-connected irritable bowel syndrome, multiple arthralgias, bilateral chondromalacia patella, left shoulder tendonitis, and chronic sinusitis and nosebleeds as due to an undiagnosed illness. The Veteran reported that his last civilian job had been as a driver but he currently was unemployed. The Veteran's medical history concerning each of these service-connected disabilities was reported in great detail. The VA examiner stated that, although the claims file was not available for review, he had reviewed the Veteran's electronic medical records in detail. Given that the history obtained from the Veteran was detailed and the claims file contains no additional detail, the lack of review of the claims file by this examiner does not render the examination inadequate. In short the examiner had sufficient facts and data upon which to base an expert opinion. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Physical examination showed that the Veteran walked in a normal fashion from the waiting area to the examining room without using any assistive devices. He sat and then changed body positions "in a perfectly normal fashion." There was minimal tenderness in the left shoulder without redness, swelling, or an increase in local heat. There was outstanding muscle mass and strength in the left shoulder. There was an almost full range of motion in all directions in the left shoulder with no reduction against resistance or with repetition or impairment of endurance. There was no evidence of redness, increased local heat, or swelling in either knee. Bilateral knee muscle mass and strength were excellent. There was an almost full range of motion on flexion and extension in both knees with no reduction against resistance and no evidence of impaired endurance. The Veteran's bowel sounds were normal by auscultation with no evidence of hepatosplenomegaly and a minimally protuberant abdomen without evidence of organomegaly or tenderness. X- rays of the left shoulder and both knees were normal. The VA examiner opined that, with regard to the Veteran's service- connected disabilities, there was "no contraindication to employment, sedentary or otherwise." The diagnoses included irritable bowel syndrome, bilateral knee chondromalacia patella with normal x-rays, and left shoulder tendonitis with normal x-ray. On VA examination for headaches and myalgias on February 22, 2006, the Veteran complained of headaches since returning from active service in the Persian Gulf War. The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records. Neurological examination showed full extraocular movements without diplopia or nystagmus, symmetrical facial movement and sensation, good muscle definition without atrophy, all normal rapid movements, and intact sensation. The VA examiner stated that the Veteran's headaches were incapacitating approximately twice a week where he had to lie down "for an hour or so." He also stated that, in the past when the Veteran was working, he missed work due to his headaches. The VA examiner opined that the Veteran was employable. He stated that the Veteran's headaches "would result in some absenteeism but could be managed with a flexible schedule or the ability to take breaks." The VA examiner stated further that, although the Veteran described "twitching and rolling movements of the muscles," these complaints were not observed at this examination. The diagnoses included headaches of unknown etiology and myalgias and paresthesias of unknown etiology. On VA audiology examination in February 2006, the Veteran complained of gradual onset hearing loss in the left ear since active service and constant bilateral tinnitus. The VA examiner stated that the Veteran's claims file, including his service treatment records, was available but not reviewed. The Veteran reported an in-service history of noise exposure working as a diesel and turbo engine mechanic. Audiometric testing results resulted in a Roman numeral of "I" for each ear. This equated to a zero percent rating for service- connected left ear hearing loss. See 38 C.F.R. §§ 4.85, 4.86, Tables VI & VII. The diagnoses included moderate sensorineural hearing loss in the left ear and bilateral tinnitus. In a March 2006 addendum to this examination report, the VA examiner opined that, with amplification and reasonable accommodations as specified in the Americans With Disabilities Act, the Veteran's hearing loss alone "should not significantly affect vocational potential or limit participation in most work activities. Sedentary employment would be feasible." Again, the examiner had sufficient facts and data to render an expert opinion and therefore the lack of review of the claims file did not render the examination inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008) On VA psychiatric examination in February 2006, the Veteran reported that he only had worked about 5 months in the prior 2 years. The VA examiner reviewed the Veteran's claims file, including his service treatment records. The Veteran stated that he last had worked as a driver in August 2005. He denied any suicidal ideation or history of violence. He reported auditory hallucinations with religious overtones which did not disturb him and feeling less organized. The VA examiner concluded that the Veteran had an irritable and frustrated mood, suffered from low energy and low self- esteem, and had difficulty coping with his declining physical ability. The Veteran's mood symptoms appeared to be secondary to his frustration over his chronic illness. The VA examiner opined that the Veteran was employable from a psychiatric standpoint. He stated that the Veteran would do best in an employment setting "in which he has little contact with the public and very loose supervision, primarily secondary to his Axis II difficulties and coping with others." The Axis I diagnosis was depressive disorder, not otherwise specified, as likely as not secondary to chronic debilitation due to service-connected illnesses including fibromyalgia and irritable colon and bone condition. The Axis II diagnosis was personality disorder, not otherwise specified, with narcissistic traits. In March 2006, the Veteran's vocational rehabilitation claim was denied by VR&E. He was notified that this claim had been denied because he was "not employable at this time" and would not benefit from vocational rehabilitation services. The Board notes that it is not bound by any determination of VR&E. There also is no indication in the Veteran's vocational rehabilitation file of which disabilities (service-connected and non-service-connected) were considered in reaching this determination. Indeed the denial relied to a significant degree on a counseling record report from Kupcho Vocational and Rehabilitation Services which documented the Veteran's report that the Veteran felt that "he needs a job which would allow him to determine on a daily basis if he is well enough to participate." The counselor stated that "it does not seem likely that there is such employment or employers who would allow that type of activity." Given that the vocational rehabilitation records do not distinguish between service connected and non-service connected disabilities in reaching the determination and that the determination was based in part on the Veteran's own assessment of the type of job he needs, the Board finds these records to be of minimal probative value on the matter before the Board and to be outweighed by the more probative evidence from the VA examination reports. Vet Center records dated in June 2006 show that the Veteran reported that he currently was unemployed and reported "significant difficulty holding down jobs which results in severe economic stress for him and his family." The Veteran's Vet Center counselor concluded in a June 2006 letter that the Veteran was "impaired by his current psychological condition" which resulted in vocational impairment. The diagnoses included PTSD and depression. Although service connection is in effect for depressive disorder (or depression), it is not in effect for PTSD. Because it appears that the Veteran's Vet Center counselor evaluated his employability based on both service-connected disabilities (depression) and non-service-connected disabilities (PTSD), his June 2006 letter is of little probative value on the issue before the Board. The Veteran has submitted several letters from a VA treating physician in support of his TDIU claim. In an August 2002 letter, this physician stated that the Veteran had been evaluated for diffuse arthralgias and myalgias and was found to have intermittently elevated markers of rheumatologic disease. He also noted that the Veteran had been diagnosed as having irritable bowel syndrome, probable fibromyalgia syndrome, abnormal nerve conduction studies, PTSD/depression, and clear memory impairment. The physician stated that the Veteran's primary concern was constant fatigue. He also stated that the Veteran had been employed "at approximately 2 dozen different jobs since the early 1990's, each time unsuccessfully. It is my opinion that he is currently unemployable due to the above issues." A July 2007 VA treatment note indicates that the Veteran requested a letter from his primary care physician stating that he is not able to hold down a job. A letter dated in August 2007 from this same physician. followed, which essentially repeated what had been stated in the 2002 letter. A VA treatment telephone contact note indicates that the Veteran called regarding that letter and reported that he needed a letter listing only is service connected disability. In a February 2008 letter, the same physician stated that the Veteran "has been through approximately 25 jobs in the past 15 years as he has tried to support his family but has been unable to retain any of these jobs long-term." He opined that the Veteran's difficulty in maintain employment was due to "service-related health issues." These series of letters are afforded little probative weight and are outweighed by the more probative evidence from the VA examination reports. Although the Veteran's VA treating physician referred in his most recent letter to "service- related health issues" this reference is taken in the context of the aforementioned communications. Given the phrase chosen, the Board finds it doubtful that the treating physician is aware of which conditions are service connected and which are not. The physician's February 2008 opinion is too vague to be accorded much probative value, as he did not identify which of the Veteran's "service-related health issues" he was referring to in that opinion or whether he was, in fact, referring to the Veteran's service-connected disabilities. In substance the letters from this physician do not distinguish between service connected and non-service connected disabilities as giving rise to any unemployability. See Van Hoose, 4 Vet. App. at 361, and Hatlestad, 5 Vet. App. at 524. In short, The evidence submitted by the Veteran directly to the Board in March 2009 consisted of duplicate copies of evidence previously submitted, including VA outpatient treatment records. The Veteran also submitted private medical evidence concerning non-service-connected disabilities which are not germane to the TDIU claim adjudicated in this decision. He also provided a detailed unit history for the unit that he served with in the Persian Gulf War. Finally, he submitted additional lay statements concerning his unemployability which repeated prior arguments already advanced at the RO. These the Board addresses further in this decision. In a January 2010 letter, "T.N.", D.O., stated that he had been seeing the Veteran on a monthly basis for the previous 17 months. He noted that the Veteran was being treated for fibromyalgia, chorea, osteomalacia, depression, tinnitus, tendonitis, and an irritable colon and that the Veteran also was seen by VA for chronic fatigue, hypertension, continued tobacco use, migraines, hyperlipidemia, chronic prostatitis, and chronic chest pain. Dr. T.N. stated that the Veteran's "most pressing issues" included cervical spinal stenosis, lumbar disc disease, and degenerative arthritic changes. The Veteran reported to this physician that he had lost 25 jobs prior to moving to Florida from Colorado. He also reported that he had worked as a cable company supervisor for 6 months but had not worked since February 2009. Dr. T.N. concluded that the Veteran "is certainly unemployable at this time." Again, because Dr. T.N. considered both service-connected and non-service-connected disabilities in evaluating the Veteran's employability, the Board finds that his January 2010 opinion is therefore of little if any probative value on the issue of whether the Veteran is entitled to a TDIU on an extraschedular basis. In summary, there is no competent medical evidence, to include a nexus opinion, which indicates that the Veteran is unemployable solely as a result of his service-connected disabilities. Also considered by the Board are statements submitted by the Veteran and from from lay persons. As to the Veteran's statements that he is unemployable due to service connected disabilities, the Board finds the objective medical expert evidence found in the examination reports to be of much greater probative value than the Veteran's subjective statements, which are little more than his claim itself. Of record are statements dated in January 2006 from the Veteran's child, mother, and spouse. These letters report that the Veteran had difficulty working due to health issues but the letters do not distinguish between disabilities for which service connection has been established and those for which service connection has not been established. Hence, the letters are of little, if any, probative value on the matter before the Board. Of record are two letters dated in January 2009, one from "K.L." who identifies herself as a person who worked with the Veteran in July 2008, and "M.S." who reports that she has known the Veteran on a personal level for 5 years. K.L. reported that the Veteran struggles at work with headaches and memory problems, takes medication often, and has been able to stay at work a full day few days. M.S. reports anecdotal information, stating that she has observed the Veteran's legs give out on him for no reason, break out in a sweat with a blank expression while walking around a holiday expo, has observed his body twitch, and that she has been at the Veteran's house on more than one occasion when he is having diarrhea and vomiting all day. Finally she reported that the Veteran has headaches which he treats with silence, and by going into a dark room. The Board has considered these statements but finds that they provide largely anecdotal evidence that is outweighed by the evidence contained in the VA examination reports. M.S.'s reports do not show that the Veteran is unemployable due to service connected disabilities, but merely that he has symptoms of disabilities for which compensation is already in place. Similarly, K.L.'s reports do not show that the Veteran is unemployable due to service connected disabilities, merely that disabilities for which he is service connected and disabilities for which he is not service connected, cause him some difficulty at work. In summary, the Board assigns little probative value to these statements and finds that they are outweighed by the medical evidence of record showing that the Veteran is not unemployable due solely to service connected disabilities. The rating criteria also appear to contemplate much more than the current severity and symptomatology of the Veteran's service-connected disabilities. The Veteran already is in receipt of the maximum 10 percent rating for service-connected tinnitus under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 6260. As noted, the Veteran's service-connected irritable bowel syndrome currently is evaluated as 30 percent disabling under 38 C.F.R. § 4.114, DC 7319. A 30 percent rating under DC 7319 contemplates severe irritable bowel syndrome with diarrhea or alternating diarrhea and constipation with more or less constant abdominal distress. VA examination in February 2006 showed that the Veteran's bowel sounds were normal by auscultation with no evidence of hepatosplenomegaly and a minimally protuberant abdomen without evidence of organomegaly or tenderness. As also noted, the Veteran's service-connected chondromalacia patella is evaluated as 10 percent disabling in each knee by analogy to 38 C.F.R. § 4.71a, DC 5099-5014 (other orthopedic disability-osteomalacia). The Veteran's service-connected left shoulder tendonitis is evaluated as 10 percent disabling by analogy to 38 C.F.R. § 4.71a, DC 5099-5024 (other orthopedic disability-tenosynovitis). DC's 5014 and 5024 each provide that osteomalacia and tenosynovitis, respectively, will be rated based on limitation of motion as degenerative arthritis under DC 5003. A 10 percent rating is available under DC 5003 for degenerative arthritis with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. See 38 C.F.R. §§ 4.71a, DC 5003, 5014 (2009). X-rays of the left shoulder and both knees taken in February 2006 were normal. VA examination in February 2006 noted "outstanding" muscle mass and strength in the left shoulder. There was an almost full range of motion in all directions in the left shoulder with no reduction against resistance or with repetition or impairment of endurance. There was no evidence of redness, increased local heat, or swelling in either knee. Bilateral knee muscle mass and strength were excellent. There was an almost full range of motion on flexion and extension in both knees with no reduction against resistance and no evidence of impaired endurance. Although the Veteran's service-connected idiopathic fasciculation is evaluated as 10 percent disabling by analogy to 38 C.F.R. § 4.124a, DC 8881-8105 (other epilepsy- Sydenham's Chorea), the VA examiner stated that no muscle twitching or rolling was observed on VA examination in February 2006. The Veteran's service-connected depressive disorder is evaluated as 30 percent disabling under 38 C.F.R. § 4.130, DC 9434. A 30 percent rating is available for occupational and social impairment with occasional decrease in work efficiency and intermittent ability to perform occupational tasks. VA psychiatric examination in February 2006 did not show occupational and social impairment with reduced reliability and productivity (i.e., a 50 percent rating under DC 9434). The Veteran also is in receipt of a 20 percent rating under 38 C.F.R. § 4.71a, DC 8850-5025 (fibromyalgia) for his service-connected arthralgias in multiple joints. It was noted on VA examination in February 2006 that the Veteran's discomfort due to his service-connected arthralgias "is apparently relatively mild most of the time." It occasionally caused him to lose sleep and miss work. A 20 percent rating under DC 5025 requires episodic fibromyalgia with exacerbations often precipitated by environmental or emotional stress or by overexertion but that are present more than one-third of the time. A higher 40 percent rating under DC 5025 requires constant or near constant fibromyalgia and refractory to therapy. Although the Veteran is in receipt of a zero percent rating for service-connected post-operative scar tissue under 38 C.F.R. § 4.118, DC 7805, he did not contend, and the evidence does not show, that he experienced any disability due to his service-connected scar tissue during the pendency of this appeal. The Veteran also is in receipt of zero percent ratings for service-connected left ear hearing loss under 38 C.F.R. §§ 4.85, 4.86, Tables VI & VII, and for service-connected chronic sinusitis under 38 C.F.R. § 4.97, DC 6510. His audiometric testing results in February 2006 resulted in a Roman numeral of "I" for each ear. This equated to a zero percent rating for service-connected left ear hearing loss. See 38 C.F.R. §§ 4.85, 4.86, Tables VI & VII. A 10 percent rating under DC 6510 requires one or two incapacitating episodes of sinusitis per year requiring prolonged (lasting four to six weeks) antibiotic treatment or three to six non-incapacitating episodes per year of sinusitis characterized by headache, pain, and purulent discharge, or crusting. VA examination in February 2006 showed nares free of any discharge, no evidence of any epistaxis, swelling, obstruction, or nasal polyps, and a clear nasopharynx. Sinus x-rays were normal. No episodes of sinusitis were noted at this examination. The results of the examination reports tend to show that the rating criteria compensate the Veteran for his current level of disability, no referral for extraschedular consideration is required. See Thun, 22 Vet. App. at 111; VA Gen. Coun. Prec. 6-1996 (Aug. 16, 1996). Significantly, these results also show that the Veteran has relatively mild disability resulting from his service connected conditions. This is in agreement then with the opinions expressed by the examiners that the Veteran's service connected disabilities do not preclude substantially gainful employment. The examination reports from February 2006 are the most probative evidence of record as these reports are comprehensive and provide clear rationale. Given these reports and that the Veteran has asserted he is unemployable due to service connected disabilities since he filed his claim which gives rise to the appeal, the Board finds this evidence to be sufficiently current to allow for adjudication at this time. The evidence unfavorable to the Veteran's claim for a TDIU outweighs the evidence favorable to his claim, including whether referral for extraschedular consideration is warranted. Thus the Board must deny the appeal. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2009). ORDER The appeal is denied. ____________________________________________ JAMES G. REINHART Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs