Citation Nr: 1306048 Decision Date: 02/21/13 Archive Date: 02/27/13 DOCKET NO. 05-12 797 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a neurological disorder of both upper extremities, claimed as peripheral neuropathy and diagnosed as carpal tunnel syndrome, including as secondary to service-connected diabetes mellitus. 2. Entitlement to a total disability evaluation based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: American Red Cross ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran served on active duty from June 1969 to August 1971. This case comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions by the RO in St. Petersburg, Florida. In April 2009, the Board denied service connection for PTSD and peripheral neuropathy of the upper extremities, dismissed an appeal for sleep apnea, and remanded the claim for TDIU. The Veteran appealed to the Veterans Claims Court. Pursuant to a January 2010 Joint Motion, the Court Clerk vacated the Board's decision as to PTSD and peripheral neuropathy. The Joint Motion specifically did not disturb the TDIU remand or the withdrawal for sleep apnea. In March 2011, the Board remanded the claims for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), peripheral neuropathy, and TDIU for further development. In January 2012, the RO granted service connection for PTSD. The Veteran did not appeal that decision. Accordingly, as this is a total grant of the benefit, the PTSD issue is no longer before the Board. The Board has reviewed the Veteran's physical claims file, as well as his electronic file through the "Virtual VA" system, to ensure a complete review of the evidence in this case. FINDINGS OF FACT 1. Peripheral neuropathy of the upper extremities is not shown; carpal tunnel syndrome is not related to service or to service-connected diabetes mellitus. 2. The Veteran's service-connected disabilities do not preclude him from obtaining or maintaining any form substantially gainful employment consistent with his education and occupational background. CONCLUSIONS OF LAW 1. A neurological disorder of both upper extremities, claimed as peripheral neuropathy and diagnosed as carpal tunnel syndrome, was not incurred in or aggravated by service; nor is it proximately due to or the result of service-connected diabetes mellitus. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). 2. The criteria for a TDIU have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran is seeking service connection for peripheral neuropathy of both upper extremities, including as secondary to service-connected diabetes mellitus, and a TDIU. It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). The Board has thoroughly reviewed all the evidence in the record. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). Service Connection for Upper Extremity Neurological Disorder Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2012). However, continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances lay evidence of a nexus between the present disorder and the post-service symptomatology. Clyburn v. West, 12 Vet. App. 296, 302 (1999). "Competent medical evidence" means that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1) . "Competent lay evidence" is any evidence not requiring that the proponent have specialized education, training or experience, but is provided by a person who has the knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Further, service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. The Board notes that 38 C.F.R. § 3.310 was amended effective October 10, 2006. Under the revised § 3.310(b) (the existing provision at 38 C.F.R. § 3.310(b) was moved to sub-section (c)), any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service-connected. As the Veteran filed his claim prior to the effective date, the amendment is not applicable. In addition, the law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases, including organic diseases of the nervous systems such as peripheral neuropathy, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. First, the Board will address direct service connection. The Veteran's service treatment records are absent of any complaints of or treatment for peripheral neuropathy of the upper extremities, carpal tunnel syndrome, or any other upper extremity neurological disorder. Moreover, the August 1971 separation examination reflected normal findings of the upper extremities. Therefore, no chronic upper extremity disorder was noted in the service treatment records. Next, post-service evidence does not reflect symptomatology related to the upper extremities for many years after service discharge. Specifically, in July 1995, the Veteran complained of a 3-month history of periodic tingling and numbness of the left hand and arm. The clinical assessment was probable carpal tunnel syndrome and he was given a wrist splint. There does not appear to be any follow-up treatment with regard to these complaints. This is the first recorded symptomatology related to the upper extremities, coming nearly 25 years after discharge. Therefore, the medical evidence does not reflect continuity of symptomatology. In this decision, the Board has considered the lay evidence as it pertains to the issue of continuity. 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. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 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"). A veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). Lay evidence can also be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). To the extent that the Veteran has asserted that his symptoms have been continuous since service, the Board finds that the weight of the evidence demonstrates that he has not experienced continuous symptoms of an upper extremity disorder since service separation. Indeed, in the contemporaneous medical history he gave at the service separation examination, he denied any history or complaints of symptoms related to the upper extremities. As noted above, his upper extremities were found to be clinically normal at discharge. His in-service history of symptoms (or lack of symptoms) at the time of service separation is more contemporaneous to service, so is of more probative value than the more recent assertions made many years after service separation. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding a Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the veteran wrote during treatment than to his subsequent assertion years later). Next, the post-service medical evidence does not reflect complaints or treatment related to the upper extremities for over two decades following active service. The Board emphasizes the multi-year gap between discharge from active duty service (1971) and initial reported symptoms related to the upper extremities in 1995 (a nearly 25-year gap). See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability); see Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (the silence in a medical record can be weighed against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated by the fact finder. Further, the Board notes that the Veteran sought treatment for a myriad of medical complaints since discharge from service and filed multiple claims, including claims for hearing loss, otitis externa, tinnitus, vertigo, headaches, a right foot infection throughout the 1980s and 1990s. Significantly, during that treatment, when he specifically complained of other problems, he never reported complaints related to the upper extremities. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). The Board acknowledges that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology (Savage v. Gober, 10 Vet. App. 488, 496 (1997)); however, here, he filed multiple claims for service connection, but did not mention any upper extremity symptoms at the time. This suggests to the Board that there was no pertinent symptomatology present. While inaction regarding filing a claim is not necessarily indicative of the absence of symptomatology, where, as here, a veteran takes action regarding other claims, it becomes reasonable to expect that he or she is presenting all issues for which he is experiencing symptoms that he believes are related to service. In other words, the Veteran demonstrated that he understood the procedure for filing a claim for VA disability compensation, and he followed that procedure in other instances where he believed he was entitled to those benefits. In such circumstances, it is more reasonable to expect a complete reporting than for certain symptomatology to be omitted. Thus, his inaction regarding a claim for an upper extremity disorder, when viewed in the context of his action regarding other claims for compensation, may reasonably be interpreted as the lack of symptomatology at the time he filed the claims. Thus, to the extent that continuity of symptomatology is asserted, the Board finds the Veteran's statements to be of lesser probative value than his previous more contemporaneous in-service history and findings at service separation, the absence of complaints or treatment for years after service, his previous statements made for treatment purposes, and his own previous histories of onset of symptoms given after service. For these reasons, the Board finds that the weight of the lay and medical evidence is against a finding of continuity of symptoms since service separation. Next, service connection may be granted when the evidence establishes a medical nexus between active duty service and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's upper extremity disorder directly to active duty, nor does he so content. Rather, he asserts that the numbness and tingling of his upper extremities is related to his service-connected diabetes mellitus. In July 2004, after he had been recently diagnosed with diabetes, the Veteran complained of numbness in the hands and forearms. A physical examination revealed decreased sensory pinprick results for the hands. The examiner determined that "he has numbness in the hands also with diabetic neuropathy, but in addition he also seems to have carpal tunnel syndrome." The Veteran underwent motor nerve conduction studies of the upper extremities in November 2004 to evaluate his complaints; however, the report did not set forth any diagnostic impressions and did not address whether his symptoms were associated with diabetes or with carpal tunnel syndrome. That same month, he filed a claim for peripheral neuropathy. Specifically, he claimed "bilateral upper extremity diabetic neuropathy as this condition is secondary to my SC diabetes." In a January 2005 VA examination, the examiner opined that the Veteran's peripheral neuropathy of the upper extremities was "likely unrelated to the [V]eteran's diabetes." As a rationale, the examiner pointed out that neuropathy of the upper extremities pre-existed the diagnosis of diabetes by 10 to 12 years and that the VA nerve conduction study suggested "median neuropathy, i.e., carpal tunnel syndrome in both wrists." This evidence weighs against the claim as it attributes the onset of carpal tunnel syndrome to many years prior to a diagnosis of diabetes. Pursuant to the Board's November 2011 remand, the Veteran underwent a peripheral nerves examination in August 2011. He was diagnosed with bilateral carpal tunnel syndrome and bilateral lower extremity diabetic peripheral neuropathy. The examiner opined that the Veteran's service-connected diabetes mellitus did not cause or aggravate his carpal tunnel of the upper extremities. This evidence weighs against the claim in that the examiner did not diagnose upper extremity peripheral neuropathy and the diagnosis of carpal tunnel syndrome was specifically found to be not related to diabetes. In a May 2012 VA examination, the examiner stated that carpal tunnel syndrome was associated with repeated wrist function causing local swelling with pressure on the median nerve as a result. He opined that the condition was not aggravated beyond its natural progression by the Veteran's service-connected diabetes mellitus. Again, this evidence directly weighs against the claim. Significantly, the Board notes that VA treatment reports, which discussed the Veteran's diagnosis of diabetes-related neuropathy of the lower extremities, failed to mention a diagnosis of diabetic peripheral neuropathy for the upper extremities. In fact, a January 2007 VA treatment report indicated neurological abnormalities of the legs only and instead associated his complaints of stiffness in the hands to carpel tunnel syndrome. Of importance, no neurological symptoms were listed with regard to his upper extremities or otherwise related his neuropathy of the upper extremities to diabetes. Therefore, while the VA treatment records reflected a diagnosis of "diabetic neuropathy," among his many other diagnoses, the weight of the evidence indicates that this particular diagnosis pertained to his lower extremities, and not his upper extremities (the Board also parenthetically notes that service connection for peripheral neuropathy of the lower extremities was granted in August 2004). On review of the evidence above, the Board finds the Veteran does not have a neurological disability of the upper extremities, in this case carpal tunnel syndrome, which is etiologically related to service. He has been afforded multiple examinations in which the examiners, based on review of the evidence, rendered a medical opinion against such an etiological relationship, and there is no contrary medical opinion of record. Moreover, there is no indication that any neurological disorder of the upper extremities became manifest to any degree during the first year after discharge from service, so presumptive service connection under 38 C.F.R. § 3.309(a) is not warranted. VA must consider all favorable lay evidence of record. 38 U.S.C.A. § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). Accordingly, in addition to the medical evidence above the Board has considered the lay evidence submitted by the Veteran in the form of his correspondence to VA. A layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Lay evidence can, in some circumstances, also be competent to establish a medical diagnosis. The Veteran asserts there is a relationship between his current neurological disorder of the upper extremities and his service-connected diabetes mellitus. However, he has not demonstrated that he has any knowledge or training in determining the etiology of such conditions. In other words, he is a layperson, not a medical expert. The Board recognizes that there is no bright line rule that laypersons are not competent to offer etiology opinions. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (rejecting the view that competent medical evidence is necessarily required when the determinative issue is medical diagnosis or etiology). Evidence, however, must be competent evidence in order to be weighed by the Board. Whether a layperson is competent to provide an opinion as to the etiology of a condition depends on the facts of the particular case. In Davidson, the Federal Circuit drew support from Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) for support for its holding. In a footnote in Jandreau, the Federal Circuit addressed whether a layperson could provide evidence regarding a diagnosis of a condition and explained that "[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer." Id. 492 F.3d at 1377. Although the Veteran seeks to offer etiology opinions rather than provide diagnoses, the reasoning expressed in Jandreau is applicable. The Board finds that the question of whether the Veteran currently has a neurological disorder of the upper extremities due to his service-connected diabetes mellitus is too complex to be addressed by a layperson. This connection or etiology is not amenable to observation alone. Rather it is common knowledge that such relationships are the subject of extensive research by scientific and medical professionals. Hence, his opinion of the etiology of his current disorder is not competent evidence and is assigned low probative weight. For all the above reasons, entitlement to service connection for a neurological disorder of both upper extremities, claimed as peripheral neuropathy and diagnosed as carpal tunnel syndrome, to include as secondary to diabetes mellitus is denied. The evidence in this case is not so evenly balanced so as to warrant application of the benefit-of- the-doubt rule. TDIU 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. 38 C.F.R. § 4.16. A finding of total disability is appropriate, "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." 38 C.F.R. §§ 3.340(a)(1), 4.15. "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a). A total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disability if the service-connected disability is rated at 60 percent or more. 38 C.F.R. § 4.16(a). A claim for a total disability rating based upon individual unemployability, "presupposes that the rating for the [service-connected] condition is less than 100%, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). 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. The Veteran is service-connected for PTSD, rated 50 percent; vertigo, rated 30 percent; diabetes mellitus, rated 20 percent; diabetic neuropathy of each lower extremity, each rated 20 percent; chronic otitis externa, rated 10 percent; tinnitus, rated 10 percent; and bilateral hearing loss, rated 0 percent for a combined rating of 90 percent. He accordingly meets the schedular criteria for a TDIU, and the Board's consideration thus turns to whether he is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. In his September 2004 TDIU claim, the Veteran contended that his service-connected diabetes mellitus, neuropathy, and all other conditions (at that time he was service-connected for diabetes mellitus, diabetic neuropathy of the lower extremities, chronic otitis externa, vertigo, tinnitus and hearing loss) prevented him from securing or following any substantially gainful occupation. He indicated that he had a high school education and experience working as a painter. He stopped working in July 2004 due to his service-connected disabilities. VA treatment records include a September 2001 mental health consult report which states that the Veteran had trouble keeping a job and lost his last job the previous May. Documents from the OPM include an April 2002 letter which shows that he was hired as a "painting worker." The appointment was not to exceed four years and the position was effective in May 2002. Another document shows that he had employment with an aircraft company from February 1967 to June 1969, a rental company from December 1971 to December 1972, self-employment from March 1973 to March 1978, employment at a shipyard from March 1978 to January 1980, and self-employment from April 1980 to March 1985. VA treatment records include a November 2003 report which states that the Veteran was employed at that time, but was in danger of losing his job because it was a temporary position. He stated that he had to "make it for 7 more years" before he could received any Social Security disability benefits. He reflected that he thought his bosses maneuvered things so that they could hire their friends instead of the people that were the most qualified for the positions. He indicated that he applied for the exact same position at another facility and was told that he was not qualified for the job. A May 2004 report reflects that he had been laid off from contract work at a naval base and was "trying to put in for a medical retirement." An August 2004 Social Security Administration (SSA) letter shows that the Veteran was awarded disability benefits for diabetes mellitus and diabetic neuropathy. It was noted that these disabilities begin in May 2004. In an undated letter, his supervisor stated that due to medical problems with his feet, to include breaking a foot at work the previous year and problems with his ankles, legs and tendons, he [the Veteran] had to slow down on production. The supervisor also noted that the facility was down-sizing. His supervisor stated that it was not possible to hire a replacement. A December 2004 letter from OPM shows that the Veteran's application for disability retirement was approved, but does not identify the disabilities upon which the award was based. A February 2009 VA audiology examination reflects a diagnosis of tinnitus which the examiner stated had no significant effects on the Veteran's employment. A February 2009 VA diabetes mellitus examination notes that he was medically-retired due to diabetes. He stated that he could not walk due to bilateral foot pain and burning sensations, lower extremity pain, and paresthesias secondary to diabetes. Activities were severely restricted due to diabetes. VA treatment records include a July 2009 psychiatric admission evaluation note which states, in pertinent part, that the Veteran "[w]orked as a painter in the civil service, until medical retirement when he couldn't do the ladders adequately." Another record states that he supported himself through Social Security and could not, therefore, obtain secondary employment. On VA audiology examination in November 2009, the Veteran indicated that he had filed for TDIU and was unable to work in his customary job as a painter due to his service-connected labyrinthitis (described as "vertigo"), because he could not climb ladders without falling. However, the examiner opined that the Veteran's tinnitus would have no impact on employment nor did it interfere with his daily activities. As regards hearing loss, the examiner noted that the Veteran had a mild hearing loss in the speech frequency range, meaning that he had some difficulty hearing soft speech or conversation in background noise. He had tried unsuccessfully to wear hearing aids due to his small ear canals and chronic infections. For this reason, the examiner opined that the Veteran should not work in a hazardous noise environment in order to prevent further hearing loss, nor should he work in a position requiring extensive telephone usage since he needed visual cues. The examiner reflected that the Veteran should work in a quiet indoor work environment in a position that did not require significant verbal communication with the general public. On VA diabetes mellitus examination in November 2009, the Veteran indicated that he was unable to work due to his diabetes. He was diagnosed with diabetes mellitus on insulin and peripheral neuropathy. The examiner opined that based on his service-connected disabilities, he might be expected to engage in sedentary activities consistent with his age. The Veteran underwent a private PTSD psychiatric evaluation in September 2010 at which time the psychiatric recounted the Veteran's extensive history of treatment of his mental health condition and opined that "he was fully disabled and unable to work" due to PTSD and depression. The psychiatrist further opined that there was no reasonable expectation that those symptoms would improve to such an extent that the Veteran could resume employment based on his long history of active treatment at multiple levels of care, multiple medical trials, and continued substantial symptoms. The psychiatrist assigned a Global Assessment of Functioning (GAF) score of 30. In an August 2011 VA PTSD examination, the examiner opined that the Veteran's individual unemployability was less likely than not caused by or a result of his PTSD. The rationale provided was, in part, that from the perspective of his documented and subjectively reported symptoms of PTSD, exclusively (i.e., excluding his age and physical health), the Veteran did not currently appear to be unemployable according to VBA criteria. He was assigned a GAF score of 55. Pursuant to the Board's March 2011 remand, the Veteran was also afforded a VA peripheral nerves examination in August 2011 at which time his diagnoses included bilateral carpal tunnel syndrome and bilateral lower extremity diabetic peripheral neuropathy. The examiner opined that the Veteran was unemployable due to his nonservice-connected hepatic encephalopathy as opposed to his service-connected diabetes mellitus or peripheral neuropathy. In a November 2011 VA diabetes mellitus examination, it was noted that the Veteran retired in 2005 and that his diabetic neuropathy had no impact on his ability to work. In a November 2011 VA hearing loss and tinnitus examination, the examiner noted that the Veteran's hearing loss affected his ordinary conditions of daily life, including the ability to work, in that he had difficulty understanding what people said without visual cues. After careful review of the evidentiary record, to include pertinent lay evidence, the Board finds that the preponderance of the evidence weighs against the grant of a TDIU for reasons explained below. First, the Board notes that in his September 2004 TDIU claim, the Veteran initially contended that his service-connected for diabetes mellitus, diabetic neuropathy of the lower extremities, chronic otitis externa, vertigo, tinnitus and hearing loss prevented him from securing or following any substantially gainful occupation. However, he has been afforded numerous examinations during which no examiner has found that any of the service-connected disabilities have prevented him from securing or following any substantially gainful occupation. Specifically, the Veteran's tinnitus and diabetic neuropathy were found to have no affect on employment. With regard to diabetes mellitus, the November 2009 VA examiner opined that he might be expected to engage in sedentary activities consistent with his age. With regard to hearing loss, the examiners have essentially opined that it does have an effect on the Veteran's employment, but they have not opined that his hearing loss prevents him from securing or following any substantially gainful employment. Finally, at the August 2011 examination, the examiner opined that the Veteran was unemployable due to his nonservice-connected hepatic encephalopathy. During the pendency of the appeal, the Veteran also contended that he is unemployable due to his service-connected PTSD. In this regard, he cited to various VA treatment records, including a September 2001 mental health consult report which stated that he had trouble keeping a job. However, that report does not indicate that he lost his job due to his service-connected PTSD. The Board has considered the September 2010 private psychiatrist's opinion that the Veteran was fully disabled and unable to work due to PTSD and depression and that there was no reasonable expectation that his symptoms would improve to such an extent that he could resume employment. At that time, the psychiatrist assigned him a GAF score of 30, which is indicative of behavior considerably influenced by delusions or hallucinations, or serious impairment in communications or judgment or an inability to function in most areas. See American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (4th. ed., 1994) (DSM-IV). However, this determination is not consistent with the other medical evidence at that time. Moreover, in August 2011, the Veteran was assigned a GAF score of 55, indicative of only moderate symptoms. This is consistent with the other medical evidence of record. Second, the Board recognizes that in August 2004, SSA determined that the Veteran was unemployable due to diabetes mellitus and diabetic neuropathy. However, the Board is not bound by the findings of disability and/or unemployability made by other agencies, including SSA. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). Accordingly, the Board affords the SSA determination and the medical records considered in making that determination less probative value than the more current evidence and examinations discussed above. Next, while the Veteran has, at various times throughout the course of this appeal, asserted that his service-connected disabilities have rendered him unemployable, the Board affords more probative weight to the medical opinion evidence above which does not support a finding that he has been rendered unemployable by his service-connected disabilities. The medical examiners, unlike the Veteran, have the requisite medical expertise to render a competent opinion regarding his unemployability. For that reason, the medical opinions are afforded more probative value. The Board also notes that the Veteran has provided inconsistent statements regarding why he believes he in unemployable. Specifically, while he has claimed that he is unemployable due to his service-connected disabilities, VA treatment records include a November 2003 report which reflected that he felt in danger of losing a job because it was temporary employment and management was conspiring to hire their friends instead of those that were most qualified for various positions. Thus, his own statements suggested that it was unfavorable management decisions that prevented him from obtaining and/or sustaining gainful employment. Finally, none of the Veteran's employment records support his contention that he is unemployable due solely to his service-connected disabilities. In this regard, the December 2004 OPM letter does not identify the disability or disabilities upon which his disability retirement award was based. In addition, the undated letter from his former supervisor suggests that he was not working due to several factors that included possible service-connected disabilities involving his legs, a nonservice-connected work-related broken foot, and downsizing. Therefore, for the reasons explained above, the Board finds that the most probative evidence of record shows that the Veteran is not unable to engage in gainful employment due to his service-connected disabilities. Consequently, the Board finds that a preponderance of the evidence weighs against the claim, and entitlement to a TDIU is not warranted. In reaching this conclusion, the Board notes that under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be given to the claimant in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. Because the preponderance of the evidence is against the claim, that doctrine is not applicable. Finally, 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This 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). When VCAA notice is delinquent or erroneous, the "rule of prejudicial error" applies. See 38 U.S.C.A. § 7261(b)(2) (West 2002). In addition, the notice requirements of the VCAA apply to all five 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). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The record reflects that the Veteran was provided adequate notice by letters mailed in September 2004, November 2004, and March 2009. Although he was not provided complete notice with respect to his claims until after the initial adjudication of the claims, the Board finds that there is no prejudice to him in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the Veteran's claims. There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of the claims would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (a timing error may be cured by a new VCAA notification followed by a readjudication of the claim). The Board also finds the Veteran has been afforded adequate assistance in regard to the claims. Service treatment records, pertinent post-service medical records, and records from SSA have been obtained. Pursuant to the terms of the Joint Motion and the Board's March 2011 remand, VA requested and also obtained records pertaining to an award of disability retirement from his former employer, including records from the Office of Personnel Management (OPM). In addition, he has been afforded examinations with regard to his claims in 2004, 2005, 2009 and 2011. A review of those reports of examination shows that all subjective and objective findings necessary for evaluation of the Veteran's claims were observed and recorded. Thus, the examinations are complete and adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). While the Board notes that no opinion was obtained with specific regard to whether he is unemployable due to his service-connected vertigo, as requested by the Board in its April 2009 and March 2011 remands, he does not contend and the evidence does not show that he is unemployable due to his vertigo. Accordingly, the Board finds that a remand for another examination and opinion would impose unnecessary additional burdens on adjudication resources, with no benefit flowing to the Veteran, and is, thus, unnecessary. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Therefore, the Board finds that the RO substantially complied with the remand instructions, and that no further RO action in this regard is warranted. Stegall v. West, 11 Vet. App. 268(1998); Dyment v. West, 13 Vet. App. 141 (1999). Moreover, neither the Veteran nor his representative has identified any other evidence that could be obtained to substantiate the claims; the Board is also unaware of any such evidence. In sum, the duties to notify and assist have been satisfied, and no further action is needed. (CONTINUED ON NEXT PAGE) ORDER Service connection for a neurological disorder of both upper extremities, claimed as peripheral neuropathy and diagnosed as carpal tunnel syndrome, including as secondary to service-connected diabetes mellitus, is denied. A TDIU is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs