Citation Nr: 1304374 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 10-39 594 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from October 3, 2007 to September 30, 2010. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D. Ganz, Associate Counsel INTRODUCTION The Veteran, who is the Appellant, had active duty service from October 1971 to May 1977, and from February 2003 to January 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which denied entitlement to TDIU. To briefly explain the procedural history of the Veteran's claim, on August 31, 2006, the RO received a claim of entitlement to TDIU. A July 2007 rating decision, in pertinent part, denied entitlement to TDIU. In a written statement received by the RO on October 3, 2007, the Veteran requested the July 2007 rating decision to be reconsidered, asserting that, contrary to the rating decision finding that he was gainfully employed, he had not been employed since August 28, 2006. In October 2007, the Veteran also submitted additional relevant evidence, a VA physician progress note dated in September 2007, which discussed the Veteran's inability to obtain or maintain employment for the previous year due to psychiatric symptoms. Additional VA treatment records were added to the record in November 2007. Such additional relevant evidence received within one year of the July 2007 rating decision denial of TDIU precluded finality of that decision, and required readjudication of the issue of TDIU. 38 C.F.R. § 3.156(b) (2012); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011) (explaining that, when statements are received within one year of a rating decision, the Board's inquiry is not limited to whether those statements constitute notices of disagreement but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156(b)); Charles v. Shinseki, 587 F.3d 1318 (Fed. Cir. 2009) (holding that, because evidence relevant to a claim had been received within one year of the rating decision, that decision was non-final for VA purposes under 38 C.F.R. § 3.156(b)). A December 2007 rating decision provided the readjudication, again denying a TDIU. In a December 2007 written statement the Veteran requested the RO's December 2007 rating decision be reconsidered. In December 2007, he also included evidence from an employer showing that he had not worked since August 28, 2006. Such additional relevant evidence received within one year of the December 2007 rating decision denial of TDIU precluded finality of that decision, and required readjudication of the issue of TDIU. 38 C.F.R. § 3.156(b); Buie, 24 Vet. App. at 251-52; Charles, 587 F.3d 1318. In a September 2008 rating decision, the RO provided the readjudication, again denying a TDIU. Thereafter, the Veteran filed a timely Notice of Disagreement (NOD), which was received by the RO in October 2008, in which he disagreed with the denial of entitlement to TDIU in the September 2008 rating decision. The Veteran's October 2008 NOD was received within one year of the December 2007 readjudication and within one year of the September 2008 readjudication. Subsequently a Statement of the Case (SOC) was issued and the Veteran perfected his appeal to the Board of the TDIU issue; thus, the non-final July 2007 rating decision is on appeal before the Board. In a November 2011 rating decision, the RO increased the rating for the service-connected cardiomyopathy to 100 percent disabling, effective September 30, 2010. His combined evaluation for compensation was noted to be 100 percent effective September 30, 2010. Prior to this, the combined evaluation for compensation was 70 percent effective January 9, 2004, and 80 percent effective August 25, 2010. If VA finds a veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding request for TDIU moot where 100 percent schedular rating was awarded for the same period). Thus, the issue before the Board is entitlement to TDIU from October 3, 2007, which is the date of claim for the rating decision on appeal, to September 30, 2010, the date the Veteran was awarded a 100 percent rating for the service-connected cardiomyopathy. FINDINGS OF FACT 1. From October 3, 2007 to September 30, 2010, the Veteran was service connected for sleep apnea (rated as 50 percent disabling), lumbosacral strain with degenerative changes, degenerative changes of the left hip, left elbow intra-articular fragment, tinnitus associated with hearing loss, cardiomyopathy, and hypertension (each rated as 10 percent disabling), and degenerative changes of the right hip, left ankle, right ankle, hearing loss, allergies and rhinitis, colon diverticulosis and excision of polyp, and gastroesophageal reflux disorder (GERD) (each rated as 0 percent disabling). 2. From October 3, 2007 to September 30, 2010, service connection was in effect for one disability rated at least 40 percent disabling, sleep apnea rated as 50 percent disabling, with sufficient additional service-connected disabilities such that the combined disability rating was at least 70 percent. 3. From October 3, 2007 to September 30, 2010, the Veteran was not rendered unable to obtain or maintain substantially gainful employment as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for TDIU have not been met from October 3, 2007 to September 30, 2010. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19, 4.25 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1) (2012). See 73 Fed. Reg. 23,353-356 (April 30, 2008). In October 2006, the RO provided the Veteran pre-adjudication notice regarding the claim for TDIU that was adjudicated in the July 2007 rating decision on appeal. This notification complied with the VCAA notice requirements of identifying the evidence necessary to substantiate a claim for TDIU, and the relative duties of VA and the claimant to obtain evidence. See Hurd v. West, 13 Vet. App. 449 (2000) (Court recognized that a TDIU claim was a form of increased rating claim by applying increased rating effective date regulatory provisions to a TDIU claim). The Board finds that all necessary development has been accomplished, and, therefore, appellate review may proceed without prejudice to the Veteran. VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A. VA has obtained service treatment records (STRs) and identified VA treatment records, including from a VA outpatient clinic in Savannah, Georgia, and a VA Medical Center (VAMC) in Charleston, South Carolina. The Veteran has not indicated he is in receipt of disability benefits from the Social Security Administration (SSA) or identified private medical treatment providers. The RO arranged for VA examinations to assess the severity of the numerous service connected disabilities in November 2006, December 2010, and January 2011. These examinations, taken together collectively, are found to be adequate for rating purposes for the TDIU issue decided in this decision. The examiners reviewed the Veteran's medical history and complaints, made clinical observations, and rendered opinions regarding the severity and effects of the Veteran's service-connected disabilities and also on the effect of his disabilities on the ability to work. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). In addition, the Veteran has not alleged that the examinations are inadequate to decide the current TDIU claim, so they are presumed to have been adequate. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2012). Under these circumstances, VA fulfilled its obligation to notify and assist the Veteran throughout the remainder of the administrative appeals process, and similarly accorded the Veteran a fair opportunity to prosecute the appeal. See Dunlap v. Nicholson, 21 Vet. App. 112 (2007). For all the foregoing reasons, the Board concludes that VA's duties to the Veteran to notify and assist have been fulfilled with respect to the issue on appeal. TDIU Legal Criteria Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). A TDIU may be assigned when the disabled veteran is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). 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. 38 C.F.R. § 4.16(a). Individual unemployability must be determined without regard to any non-service-connected disabilities or a veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran's favor. 38 C.F.R. § 4.3. In Faust v. West, 13 Vet. App. 342 (2000), the U.S. Court of Appeals for Veterans Claims (Court) defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran's earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to TDIU is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). In evaluating a veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran's earned 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 in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17(a) (2012). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). TDIU Analysis In this case, the Veteran contends that he is unemployable due to his service-connected disabilities. In a TDIU claim (on a VA Form 21-8940) that was received at the RO on August 31, 2006, the Veteran represented being unable to obtain employment due to service-connected sleep apnea, and that he worked for the US Army until August 28, 2006. In a statement received in December 2007, the Veteran wrote the he had not been employed since August 28, 2006. From October 3, 2007 to September 30, 2010, the Veteran's service-connected disabilities meet the combined rating percentage requirements set forth in 38 C.F.R. § 4.16(a) for consideration of a TDIU. From October 3, 2007 to September 30, 2010, the Veteran was service connected for sleep apnea, which was rated as 50 percent disabling lumbosacral strain with degenerative changes. He was service connected for degenerative changes of the left hip, left elbow intra-articular fragment, tinnitus associated with hearing loss, cardiomyopathy, and hypertension, each rated as 10 percent disabling. He was also service connected for degenerative changes of the right hip, left ankle, right ankle, hearing loss, allergies and rhinitis, colon diverticulosis and excision of polyp, and gastroesophageal reflux disorder (GERD), which were each rated as non-compensable (0 percent). The combined rating for compensation from October 3, 2007 to August 25, 2010 was 70 percent, and from August 25, 2010 to September 30, 2010 was 80 percent. As the Veteran had one disability (sleep apnea) rated as 40 percent disabling or more and sufficient additional disability to have a combined rating of at least 70 percent from October 3, 2007 to September 30, 2010, the percentage criteria for TDIU eligibility are met; therefore, entitlement to TDIU is considered on a schedular basis. 38 C.F.R. § 4.16(a). It is observed that the Veteran was denied service connection for posttraumatic stress disorder (PTSD) in a July 2012, regarding which he has not yet filed a notice of disagreement, and was not service connected for depression, anxiety, or any other mental or psychiatric disorder from October 3, 2007 to September 30, 2010, or currently. In a TDIU claim (on a VA Form 21-8940) that was received at the RO on August 31, 2006, the Veteran represented being unable to obtain employment due to service-connected sleep apnea, that he worked for the US Army until August 28, 2006, that the total income for the previous 12 months had been $53,000 dollars, and that his current monthly earned income was $4,200. In the August 2006 claim for TDIU, the Veteran did not indicate his level of education. In this form, he reported working as an airfield manager for the US Air Force from March 1980 to December 2000 and as an airfield manager for the US Army from January 2001 to August 2006. He also checked boxes on the claim form noting that he did not leave his last job because of his disability and has not tried to obtain employment since he became too disabled to work. In another written statement received in December 2007, the Veteran reported that he applied for Family Leave from employment due to his service-connected arthritis in the knees, that the leave request was eventually denied, and that he was terminated from employment. He also reported that since the loss of his job he has had to see doctors for a full array of service connected illnesses compounded by the need for psychiatric help due to depression. A Family Medical Leave Act (FMLA) Acknowledgment letter dated in July 2006 indicates that the Veteran requested leave pursuant to FMLA. A December 2006 Memorandum from the Department of the Army, Installation Management Agency noted that the Veteran was to be removed from Federal service effective December 26, 2006, due to charges of absence without leave (AWOL) and failure to follow proper leave procedures. It was noted that on November 1, 2006 it was proposed that the Veteran be removed for AWOL and failure to follow proper leave procedures. A November 2006 VA heart examination report reflects that the Veteran reported he worked as an airfield manger at Fort Stewart and finds it very stressful. A November 2006 VA joints examination noted that the Veteran reported he was service connected for his bilateral ankles, and that he had not had any problems working secondary to his ankles. Regarding his hips, he reported hip pain and that on the job he had difficulty if he had to walk more than forty to fifty yards. A November 2006 VA spine examination report reflects that the Veteran reported missing "probably" one week of work in the past year because of his back and had incapacitating episodes five to six times in the past year. The examiner noted that regarding his occupation as an airfield supervisor the Veteran reported that he has a lot of deskwork and had to get up and move around quite a bit because his back becomes tight and sore. Physical examination revealed he had a normal gait coming in the examination area. An August 2007 letter from the Veteran's treating VA physician indicated that the Veteran requested a letter commenting on the current conditions. It was noted that the Veteran had two medical conditions that were primarily limiting. First was depression, and his prognosis and ability to work based on this condition was uncertain. Second he had several areas of arthralgias consistent with arthritis that he deals with on a daily basis, and hypertension, hypercholestrolemia, tobacco use, sleep apnea, allergic rhinitis, and erectile disorder. A September 2007 medical opinion authored by the Veteran's treating VA physician noted the Veteran was being treated for severe major depressive disorder (MDD). He was having difficulty with concentration and focus and endorsed anxiety symptoms surrounding his fiances. He demonstrated difficulty with poor stress management and coping skills and had been unable to obtain or maintain employment for the past year. He reported he was unable to adequately function in a work or social environment, and the authoring clinician noted his self assessment was accurate per his most recent examination at mental health. He demonstrated severe impairment in his overall function due to his mood and anxiety symptoms, which significantly limits his employment capability. A July 2008 VA treatment record noted that the Veteran reported episodes of increased irritability usually going along with sleep patterns and intermittent moderate depression. He reported nightmares twice a week and 5-6 hours of sleep per night, which he thinks is better with CPAP. Following a mental status examination, pertinent assessments of posttraumatic stress disorder (PTSD) and MDD were given. The treating provided noted that the Veteran's sleep and energy were still problematic even though occurrence of nightmares had markedly decreased. He was taking bupropion at bedtime, which may also effect sleep patterns and was taking several blood pressures medications that may also cause increased fatigue. A November 2008 letter from the Veteran's VA physician who authored the September 2007 letter, noted that the Veteran was treated for PTSD and MDD. It was noted that his ongoing symptoms cause severe difficulty with social functioning. He reports difficulty with irritability, nightmares, hypervigilance, easy startle, and depressed mood, and also problems with sleep and daytime fatigue. It was noted that he had a diagnosis of sleep apnea that can also cause difficulty with daytime fatigue and ability to maintain attention or concentration. It was noted that the Veteran is reporting that his sleep apnea diagnosis is causing all of these problems. The psychiatrist noted the Veteran was having difficulty with coping skills, stress management, and mood symptoms that have caused inability to work or adequately function in a social environment. He reported his recent dismissal from an airfield manager position was due to PTSD, MDD, and sleep apnea symptoms. The psychiatrist noted that the Veteran's self assessment was accurate per his most recent examination at mental health. May 2009 VA treatment records show that the Veteran reported that there were no real problems that day. It was noted his sleep remained poor, and assessments of PTSD, MDD, recurrent, mild, were given. There are several VA examination reports that were conducted to assess the severity of the Veteran's service-connected disabilities after September 30, 2010. They will be briefly summarized as they potentially bear on the question of his employability prior to September 30, 2010. During a January 2011 VA examination, which evaluated the severity of the Veteran's orthopedic disabilities, cardiomyopathy, and GERD, the Veteran reported he was retired from the Air Force after 34 years and does not work currently due to his disabilities. The examiner did not offer an opinion regarding the effect of the service-connected disabilities on employability. A January 2011 VA audiology examination noted that the Veteran was given diagnoses of bilateral sensorineural hearing loss and tinnitus, and that the examiner opined that these disabilities had no significant effects on occupation. A July 2011 VA esophagal conditions examination noted that the Veteran was given a diagnosis of GERD, and that the examiner opined that GERD did not impact the ability to work. In the September 2010 VA Form 9 appeal to the Board he reported that he left his employment because of his disability and that he was medically retired from civil service. A November 2010 VA treatment record shows that he reported his highest grade completed was 14 years. Additionally, an October 20, 2010, VA medical opinion from the Veteran's treating VA physician is of record, which is an exact duplicate of the November 2008 letter authored by the same physician, except of the last sentence noting that if further information is needed to please contact the Veteran. A December 15, 2010, letter from the Veteran's physician noted that the Veteran suffers from several medical problems which made it difficult for him to obtain and retain gainful employment. It was noted the had multiple areas of arthralgias and myalgias that are due, at least in part, to degenerative arthritic changes of his knee, ankle, and low back. It was noted that a firm etiology of his myalgias had not been determined, but may be related to fibromyalgia. It was noted he had cardiomyopathy, but the Board observes that the effect of it on his employability was not noted. It was also noted he was followed by mental health for PTSD/depression and his ability to retain gainful employment had complicated this condition, which, in turn, may contribute to difficulty with employment. Finally, it was noted he had other medical problems that may indirectly affect his ability to be employed, including obstructive sleep apnea, allergic rhinitis, and obesity. He is also followed for hypercholesterolemia, elevated blood sugar, GERD, hypertension, constipation, and G6PD deficiency. After a review of all the evidence, the Board finds that the weight of the lay and medical evidence shows that the Veteran's service-connected disabilities alone have not rendered him unable to obtain or maintain substantially gainful employment. From October 3, 2007 to September 30, 2010, the Veteran was service connected for sleep apnea, lumbosacral strain with degenerative changes, degenerative changes of the left hip, left elbow intra-articular fragment, tinnitus associated with hearing loss, cardiomyopathy, and hypertension. Sleep apnea was rated as 50 percent disabling and the rest of the disabilities were respectively rated as 10 percent disabling. He was also service connected for degenerative changes of the right hip, left ankle, right ankle, hearing loss, allergies and rhinitis, colon diverticulosis and excision of polyp, and GERD, which were each rated as non-compensable (0 percent). The Veteran is not service connected for depression, anxiety, or PTSD, or any other mental or psychiatric disorder. Inconsistent with the Veteran's history represented to VA when he claimed TDIU and in subsequent statements in September and December 2007 that he last worked on August 28, 2006, on multiple other occasions the record reflects that subsequently the Veteran was still working full time. The November 2006 VA heart examination noted the Veteran's report that he was then working. The November 2006 VA spine examination report, likewise, reflects that the Veteran reported missing time from work, and gave a history or current difficulties at work due to the back. The December 2006 Memorandum from the Department of the Army, Installation Management Agency, reflects that it was not until November 1, 2006 that it was proposed that the Veteran be removed from Federal service, and the removal was not effective until December 26, 2006. With regard to the effect of service-connected disabilities on the ability to obtain or maintain substantially gainful employment, the November 2006 VA joints examination noted that his service-connected bilateral ankle disability did not cause any problems with his ability to work, and that his hips caused difficulty on the job when he had to walk more than forty to fifty yards. The November 2006 VA spine examination noted that the Veteran reported missing probably one week of work in the past year because of his back and incapacitating episodes five to six times in the past year. The examiner noted that regarding his occupation as an airfield supervisor he reported that he had a lot of deskwork and had to get up and move quite a bit because his back became tight and sore. This evidence tends to show that his service connected orthopedic disabilities may have caused some employment difficulties, but did not render him unemployable since he was in fact working full time until December 26, 2006, as indicated by the December 2006 Notice of Decision on Proposed Removal despite his December 2007 letter to the RO in which he reported that the had not been working since August 28, 2006. The August 2007 letter from the VA physician indicated his prognosis and ability to work based on depression was uncertain. A September 2007 VA treatment record noted that the Veteran called and reported that he continued to be unable to work and requested a letter be written to support his unemployability. The September 2007 medical opinion authored by the VA psychiatrist noted he demonstrated severe impairment in his overall function due to his mood and anxiety symptoms, which significantly limited employment capability. The February 2008 VA treatment record noted that the Veteran developed a phobic reaction to driving after a serious motor vehicle accident and that this incident and the recent passing of his sister impacted his ability to work as an airport manager. This medical evidence collectively shows that the Veteran could not work or was unemployable due to his PTSD, depression, and anxiety, which are not service-connected disabilities, rather than due to the service-connected disabilities. The November 2008 letter from the Veteran's VA psychiatrist and October 2010 restatement of the November 2008 letter noted that the Veteran's sleep apnea can cause difficulty with daytime fatigue and ability to maintain attention or concentration. It was noted that the Veteran reported that his sleep apnea diagnosis was causing all of his problems, which included difficulty with coping skills, stress management, and mood symptoms that have caused inability to work or adequately function in a social environment. The Veteran reported his recent dismissal from an airfield manger position due to PTSD, MDD, and sleep apnea symptoms. The psychiatrist noted that the Veteran's self assessment was accurate per his most recent examination at mental health. The VA psychiatrist's statements in November 2008 and October 2010 to the effect that he agreed with the Veteran's self assessment that sleep apnea was causing all of his problems is simply the psychiatrist transcribing the Veteran's own lay opinions into medical evidence, and thus has limited probative value regarding whether the Veteran's sleep apnea rendered him unemployable from October 3, 2007 to September 30, 2010. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (holding that a bare transcription of a lay history is not transformed into competent medical evidence merely because the transcriber happens to be a medical professional). Furthermore, to the extent that the VA psychiatrist's statement that he agreed with the Veteran's self assessment that his sleep apnea was causing all of his problems and made him unable to work was his own opinion, this statement is based on the inaccurate factual premise that the Veteran was dismissed from his job as an airfield manager due to PTSD, MDD, and sleep apnea, rather than, as shown by the December 2006 termination letter, that the Veteran was terminated for being AWOL and for failing to follow proper leave procedures. An opinion based on an inaccurate history has essentially no probative value. See Kightly v. Brown, 6 Vet. App. 200 (1994); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (stating that an opinion that is based on the inaccurate recitations of a claimant is of no probative value). Additionally the VA psychiatrist's opinion is based on the fact that the Veteran reported his sleep apnea was the cause of his depression and other psychiatric disorders, which in turn caused him to be unemployed, which is contradicted by the February 2008 VA treatment indicating that a motor vehicle accident and death of a family member contributed to his mental health issues. Thus, the Board finds that this medical opinion is of no probative value regarding whether the Veteran's service connected disabilities alone rendered him unable to secure or follow a substantially gainful occupation from October 3, 2007 to September 30, 2010. The more probative evidence reflecting on the question of whether the Veteran's service-connected disabilities render him unemployable include the December 15, 2010 letter from the Veteran's VA physician, which shows that his multiple areas of arthralgias and myalgias, cardiomyopathy, and PTSD/depression make it difficult to obtain and retain gainful employment, and that his obstructive sleep apnea, allergic rhinitis, and obesity may indirectly affect his ability to be employed. Additionally, the January 2011 VA examination, which evaluated the severity of the Veteran's orthopedic disabilities, cardiomyopathy, and GERD does not contain an opinion regarding the effect of his service connected disabilities on his employability. The January 2011 VA audiology examination report shows that bilateral sensorineural hearing loss and tinnitus had no significant effects on occupation, and the July 2011 VA esophagal conditions examination shows that his GERD did not impact his ability to work. Because the Board is evaluating the impact of the Veteran's service-connected disabilities on his ability to work from October 3, 2007 to September 30, 2010, and these opinions and examination reports all come after this period of time, they have limited probative value regarding his ability to work from October 3, 2007 to September 30, 2010. Regarding the December 15, 2010 letter from the VA physician, it demonstrates that the Veteran has difficulty obtaining and retaining employment due to both service-connected disabilities, such as degenerative arthritic changes of the ankles and low back and cardiomyopathy, but also non-service-connected disabilities such as PTSD and depression. Therefore, the competent and probative evidence of record demonstrates that, for the period from October 3, 2007 to September 30, 2010, the Veteran's ability to obtain and retain substantially gainful occupation was impacted primarily by non-service-connected disabilities, such as PTSD and depression, rather than that he could not obtain or sustain substantially gainful occupation as a result of his service-connected disabilities. See 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose, 4 Vet. App. at 361. The Board has considered the Veteran's assertion that his service-connected disabilities have rendered him unable to work. In an August 2006 statement he claimed he was unemployable due to sleep apnea. In a December 2007 written statement he reported that he applied for Family Leve in conjunction with his service connected injury (arthritis in the knees), which was denied and he was terminated. In a November 2008 written statement the Veteran reported that there was a correlation between his sleep apnea and depression that caused him to retire from employment, and in an August 2010 written statement he reported that he left his job because of his disability and was medically retired from Civil Service. The Veteran' statements that he was medically retired due to his service-connected disabilities are wholly inconsistent with the December 2006 Memorandum from his former employer noting that the was terminated for AWOL and failure to follow proper leave procedures. Furthermore, the Veteran's August 2010 statement that he was medically retired is contradicted by his earlier December 2007 statement in which he claimed he was terminated. Based on this evidence, the Board finds that the Veteran's statements that he cannot work due to his service-connected disabilities, although competent, are not credible, and do not weigh the other histories given by the Veteran, and the more specific findings and assessments by various examiners, in conjunction with this claim for TDIU, as they reflect on the question of unemployability from October 3, 2007 to September 30, 2010. Although the Veteran may not be currently employed, the weight of the lay and medical evidence demonstrates that any inability to secure substantially gainful employment for the period from October 3, 2007 to September 30, 2010 is not a result of the service-connected disabilities alone, but rather is due to non-service connected disabilities. For these reasons, the Board finds that the weight of the competent and credible lay and medical evidence demonstrates that the criteria for TDIU have not been met or more nearly approximated for the period from October 3, 2007 to September 30, 2010. As the preponderance of the evidence is against this claim, the benefit of the doubt rule is not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER A TDIU, from October 3, 2007 to September 30, 2010, is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs