Citation Nr: 1306499 Decision Date: 02/26/13 Archive Date: 03/01/13 DOCKET NO. 07-25 765 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa THE ISSUES 1. Entitlement to a compensable rating for the service-connected hypertension. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) by reason of service-connected disability. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. E. Wilkerson, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1958 to September 1961. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from December 2009 and June 2012 rating decisions issued by the RO. The Veteran testified at a hearing from the RO before the undersigned Veterans Law Judge by way of videoconference technology in October 2012; a transcript of the hearing is of record. A review of the Veteran's Virtual VA electronic claims file reveals no additional records. In an October 2012, the Veteran expressed his desire to withdraw the claims of service connection for a mental disorder, diabetes mellitus type II, and sinusitis as secondary to the service-connected scleredema. As such, these claims are withdrawn and no longer before the Board. See 38 C.F.R. § 20.204 (2012). In various written statements, the Veteran has indicated that he desired an earlier effective date for the award of service connection for hypertension. As this matter is not before the Board, it is referred to the RO for additional development. FINDINGS OF FACT 1. The service-connected hypertension is shown to be manifested by diastolic blood pressure readings which are predominantly less than 110 and systolic pressure readings which are predominantly less than 200. 2. The Veteran has been awarded service connection for scleredema, rated as 80 percent disabling; migraine headaches, rated as 30 percent disabling; arthritis of the neck rated as 10 percent disabling; and hypertension and erectile dysfunction, each rated at a noncompensable level. The combined rating for these disabilities is 80 percent. 3. The service-connected disabilities meet the percentage requirements for the award of a TDIU rating, and the service-connected disabilities as likely as not are shown to preclude the Veteran from obtaining and retaining substantially gainful employment consistent with his educational and work background. CONCLUSIONS OF LAW 1. The criteria for the assignment of a compensable rating for the service-connected hypertension have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.104 including Diagnostic Code 7101 (2012). 2. The criteria for the assignmenf of a TDIU rating are met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Given the favorable disposition of the claim for TDIU rating, the Board finds that all notification and development actions needed to fairly adjudicate that claim have been accomplished. As for the remaining claim for increased rating, the RO provided a VCAA notice letter to the Veteran in January 2012. The letter notified the Veteran of what information and evidence must be submitted to substantiate his claim, as well as what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. I The Veteran was also told to inform VA of any additional information or evidence that VA should have, and was told to submit evidence in support of his claim to the RO. The content of the letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The requirements of VCAA also include notice of a disability rating and an effective date for award of benefits if service connection is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided with notice of the type of evidence necessary to establish a disability rating and effective dates in the January 2012 letter. The Board finds that all relevant evidence has been obtained with regard to the Veteran's claim, and the duty to assist requirements has been satisfied. All available service treatment records were obtained. The VA treatment records, private treatment records and Social Security Administration records are associated with the claims folder. The Veteran has not indicated that he had any other additional information or evidence to submit in support of his claim. In addition, the Veteran presented testimony regarding his claim at an October 2012 hearing. The Veteran underwent VA examination in March 2012 to determine the nature and severity of the service-connected hypertension. Under the circumstances, the Board finds that there is no reasonable possibility that further assistance would aid the Veteran in substantiating the claim. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Increased Rating for Hypertension Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. When considering functional impairment caused by a service-connected disorder, evaluations should be based on an assessment of the lack of usefulness, and adjudicators should consider the effects of the disabilities upon the person's ordinary activity. 38 C.F.R. § 4.10. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's disability. Schafrath, 1 Vet. App. at 594. In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). The Board also acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation at any stage since the effective date of service connection. See Fenderson v. West, 12 Vet. App 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Service connection may be established, as it is here for hypertension, on a secondary basis for a disability which is aggravated by a service-connected disability. See 38 C.F.R. § 3.310(b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). However, the Veteran may only be compensated for the degree of disability over and above the degree existing prior to the aggravation. Id. Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). Historically, the RO granted service connection for hypertension in a May 2007 rating decision. The RO determined that service connection was warranted for hypertension as it was aggravated by his service-connected scleredema. A noncompensable rating was assigned, effective on March 30, 2005. The RO determine that, prior to aggravation by a service-connected condition, the disability was considered 10 percent disabling based on the medical evidence documenting his blood pressure readings and use of medication for control. The RO noted that, pursuant to 38 C.F.R. § 3.310(b), the Veteran may only be compensated for the degree of disability over and above the degree existing prior to the aggravation. The RO determined that the post-aggravation level of disability was still 10 percent. Thus, after deducting the 10 percent pre-aggravation rating, the RO assigned the noncompensable rating. The Veteran filed the instant claim for increase in January 2012, and appeals from a June 2012 rating decision continuing the noncompensable evaluation. The Veteran's hypertension is rated as noncompensable under 38 C.F.R. § 4.104, Diagnostic Code 7101 (hypertensive vascular disease). Diagnostic Code 7101 provides for a 60 percent rating for diastolic pressure predominantly 130 or more and a 40 percent disability rating for diastolic pressure predominantly 120 or more. A 20 percent disability rating is warranted for diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. A 10 percent rating is warranted for diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. See 38 C.F.R. § 4.104, Diagnostic Code 7101. The pertinent evidence of record includes a November 2011 statement from the Veteran's private Dr. O. who included a notation that the Veteran's hypertension had been unstable and unpredictable; however, he did not provide any blood pressure readings. VA outpatient treatment records reflect that the Veteran's hypertension was controlled with medication. The most recent treatment report of record dated in May 2011 notes a blood pressure reading of 133/79. On VA examination in March 2012 Veteran reported that he believed that his hypertension began in the 1980s, but he was not sure. He indicated that his hypertension was fairly well controlled over the years, but went up and down at times. He used medicine for treatment. Side effects included dizziness when he stood up or bent over quickly. On examination, the blood pressure readings were recorded as 137/79, 133/79 and 130/74. A diagnosis of essential hypertension was assigned. The examiner determined that there were no effects of this disability on occupation or usual daily activities. During the December 2012 hearing, the Veteran reported that he had episodes of elevated blood pressure. He indicated that, while he took medication daily, he still had episodes were his blood pressure increased. During these episodes, he experienced weakness and lightheadedness. As noted, the Veteran's baseline, pre-aggravation level of severity of his service-connected hypertension has been determined to be 10 percent. Thus, as this baseline 10 percent rating must be deducted from any rating assigned, in order to receive a compensable, 10 percent rating for hypertension, the criteria for a 20 percent rating must be met. Here, however, the record does not reflect diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. Rather, the pertinent blood pressure readings during the period on appeal have reflected diastolic pressure of less than 100 and systolic pressure of less than 140. The Board acknowledges the Veteran's contention to the effect that his blood pressure levels fluctuate on occasion. However, there is no objective medical evidence that, even if his levels are elevated on occasion, diastolic pressure has been predominantly 110 or more, or systolic pressure has been predominantly 200 or more. The Board has also considered whether any other diagnostic code provides a basis for higher rating for the Veteran's service-connected hypertension, but has found none. In addition, the Board has considered the Veteran's contentions, found in various written statements and during his December 2012 hearing, that the pre-aggravation baseline severity of his hypertension was noncompensable and not 10 percent, and that therefore the 10 percent rating should not be deducted to determine the current disability rating for his service-connected hypertension. The Board notes that the RO determined the 10 percent baseline level in the May 2007 rating decision granting service connection and assigning the initial rating. The Veteran did not appeal this decision. Hence, that rating decision, and all its components, is final. See 38 C.F.R. §§ 3.104, 20.302, 20.1103. In order to overcome the finality of this decision, the Veteran could put forth an allegation of clear and unmistakable error (CUE) in the May 2007 decision to the extent that it determined a 10 percent pre-aggravation baseline level for the service-connected hypertension. See 38 C.F.R. § 3.105. This matter is not currently before the Board, and thus the Board will not discuss the propriety of the determination the 10 percent pre-aggravation baseline rating for hypertension. For all the foregoing reasons, the Board finds that a compensable rating is not assignable for the service-connected hypertension. The above determinations are based upon application of the pertinent provisions of VA's rating schedule. The Board finds that the record does not reflect that the service-connected hypertension is exceptional or unusual as to warrant the assignment of a higher rating on an extraschedular basis. See 38 C.F.R. § 3.321(b)(1). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1)) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). The Board finds that the rating criteria used to evaluate the service-connected hypertension reasonably describe his disability level and symptomatology. There is nothing in the record to distinguish his case from the cases of numerous other veterans who are subject to the schedular rating criteria for the same disability. Moreover, the schedular criteria, in general, 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. Therefore, the Veteran's disability picture is contemplated by the rating schedule and no extraschedular referral is required. 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). Finally, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. TDIU 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. 38 C.F.R. § 3.340(a)(1). Total disability may or may not be permanent. Id. 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 rating may be assigned 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 disabilities. 38 C.F.R. § 4.16(a). 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. Id. But 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. Id. Entitlement to a TDIU rating must be based solely on the impact of the Veteran's service-connected disabilities on his ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion. However, individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. The Veteran contends that he is prevented from performing substantially gainful employment due to his service-connected scleredema, migraine headaches, arthritis of the neck, and hypertension. He last worked in 1999 at a warehouse for a chemical company. Service connection is currently in effect for scleredema, rated as 80 percent disabling; migraine headaches, rated as 30 percent disabling; arthritis of the neck rated as 10 percent disabling; and hypertension and erectile dysfunction, each rated as noncompensable. The combined rating for these disabilities is 80 percent. Thus, the Veteran meets the minimum percentage requirement for a TDIU rating under 38 C.F.R. § 4.16(a). Consequently, the only remaining question is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Id. The pertinent evidence of record includes SSA records reflects that the Veteran has been in receipt of disability benefits since July 1999 with a primary diagnosis of obesity and a secondary diagnosis of degenerative joint disease of the knees. In a questionnaire associated with the Veteran's application for benefits, the Veteran mainly discussed his knee pain, but he also noted that he was on medication for high blood pressure which caused dizziness, lightheadedness, and drowsiness. The medical records submitted with the filing include a July 1999 treatment report noted that the Veteran could not long work due to his knees. With respect to past work history, the Veteran reported that he worked at Equistar in the warehouse for 24 years and in packaging for 7 years. A February 2008 VA outpatient treatment report notes that the Veteran was no longer working and was disabled due to his knees. On VA examination in November 2009, the Veteran reported experiencing migraine headaches approximately 4 times per week. He rated the severity of these headaches as ranging from 4 to 7 on a scale to 10, and reported that they lasted for 4 to 8 hours at a time. He indicated that he experienced blurry vision during the attacks, and that he could not do any activity during the attacks, as he was prostrate for at least 4 hours. The Veteran also reported that his scleredema has been manifested by scarring and skin thickening over the years. With respect to the Veteran's arthritis of the neck, the Veteran indicated that he actually had limitation of motion of the cervical spine due to his scleredema. A regards hypertension, the Veteran reported that he was on medication for control. The examination revealed scars on the occiput from scleredema and its treatment. The rash was very hard, bumpy, partly erythematous occipital scalp skin with well-healed biopsy scar and eczematous eruption currently fading. There was neck pain and tenderness in the neck due to scleredema. The cervical spine range of motion testing reveals flexion to 55 degrees, extension to 5 degrees, right rotation to 45 degrees, left rotation to 40 degrees, left lateral flexion to 35 degrees, and right lateral flexion to 15 degrees. There was evidence of pain on motion. Blood pressure was 165/91, 155/95, and 138/50 on 3 readings. The examiner noted that the Veteran previously worked as a warehouse clerk and retired in 1999. He reported that he retired due to his medical problems of migraines and arthritis of both knees. The examiner determined that there were no effects of the Veteran's scleredema on usual daily activities. With respect to the Veteran's loss of motion of the cervical spine due to scleredema, rated as arthritis of the neck, the examiner noted that this disability would cause mild effects on usual daily activities such as chores, shopping, exercise, sports, and driving. As regards the Veteran's migraines, the examiner determined that this would cause moderate effects on activities of daily living such as shopping, exercise, and travel and severe effects on sports. The examiner noted that when the Veteran was still working, his headaches made it impossible to continue working when his job was outsourced and he was reassigned to packaging and shipping. The examiner also noted the Veteran's service-connected hypertension and erectile dysfunction had no effects on usual daily activities. The examiner indicated that, with respect to work, the Veteran's scleredema, excluding loss of range of motion of the neck, had no impact on employability. He noted that there was no significant impairment due to this disability and the prognosis is for the condition to persist indefinitely with neither improvement nor worsening. As regards limitation of motion of the spine, the examiner indicated that there was a mild impact from this condition on his employability. He noted that the Veteran would be unable to repetitively perform tasks requiring neck mobility, particularly with extension. The prognosis was for the condition to persist indefinitely with neither improvement nor worsening. As for the Veteran's migraines, the examiner determined that there was moderate impact from this condition on employability. He noted that the Veteran would be unable to maintain employment that demanded consistent, full-time attendance. He would have to be allowed time off for headaches up to several hours per day, several times per month. The prognosis for this condition was for it to persist indefinitely with neither improvement nor worsening. The examiner also noted that the Veteran's non-service connected bilateral knee disability caused moderate impact on employability and would render the Veteran unable to perform most jobs requiring physical labor. He also noted that there would be mild impact from other non-service connected disabilities such as sinusitis, diabetes mellitus, and obesity. In a January 2010 statement, the Veteran's treating physician Dr. O. noted that the Veteran had been under his care since 1982. He indicated that he had reviewed the Veteran's medical records from August 2004 to the present. He noted that he had evaluated and treated the Veteran for continuing headaches that were prostrating and required all day bed rest to relieve. These headaches occurred approximately once a week. He indicated that the headaches were severe and typically rate a 6 or 8 on a scale to 10. In addition, he classified the headaches and chronic and recurrent. The Veteran was also afforded a VA examination in April 2010 to determine the nature and severity of his migraine disability. The examiner determined that the Veteran's migraine headaches had a severe impact on activities of daily living including chores, shopping, exercise, sports, recreation, traveling, and feeding. He also noted that the Veteran was unable to drive during a migraine and had to pull over when one occurred. In addition, the examiner commented that, when the Veteran was employed, he was unable to continue working during a migraine, which occurred for several hours at a time approximately twice a week. In a November 2011 statement, the Veteran's treating physician, Dr. O., noted that he was a medical physician with experience in treating average working people with physical disabilities and mental stresses caused by work, sports, and home duties and responsibilities. He noted that he had worked with employees on employability. He indicated that he was fully qualified to determine and make decisions on whether a person is able to start a new job or to return to work, as well as give a knowledgeable opinion on employability. Dr. O. reported that he had reviewed the Veteran's service medical records and his own post-service treatment records and had discussed the Veteran's relevant personal history and his service disabilities. He based his opinion on the Veteran's on those discussions, on review of his medical records, long-term observation, treatments, and clinical tests. Dr. O. opined that the service-connected severe migraine headaches, scleredema, neck disability, and hypertension had a severe and major impact on his employability. In so finding, he noted that the Veteran had 3 or 4 severe migraine headaches a week that requiring laying on a couch and remaining inactive, as well as approximately 1 completely prostrating severe migraine headache occurring approximately once a week that required all day bed rest to relieve. Dr. O. also noted that the Veteran's hypertension had been unstable and unpredictable, and his neck pain was worse. In his opinion, the examiner could not perform and maintain employment, with or without accommodation, because of the frequency and severity of his headaches, hypertension problems, and neck pain. He reiterated that these service-connected disabilities would produce severe economic inadaptability and keep him from any substantially gainful employment. In addition, Dr. O. noted that he reviewed the opinion of the November 2009 VA examiner that the Veteran would be unable to maintain employment that required full-time attendance and would have to be allowed time off for his headaches. In his opinion, that would be a severe major obstacle and impact employability. He noted that the Veteran's migraine headaches and unstable hypertension and neck disability did not follow a predictable schedule to allow for gainful employment. In sum, Dr. O. expressed his opinion that, more likely than not, the Veteran' service connected disabilities-without consideration of his age or non-service connected disabilities-would render it impossible for the Veteran or an average person like him with a master's degree, to be capable of performing the physical and mental acts of any and all forms of substantially gainful employment. On VA examination in March 2012, the Veteran reported that his scleredema worsened over time, and that it impacted the range of motion of his neck and caused headaches. With respect to his migraines, he noted that he experienced a severe migraine at least once a week that incapacitated him for at least 8 hours or more. He experienced associated symptoms of eye pain and occasional nausea and vomiting. He reported that medication helped but did not cure the headaches. With respect to neck pain, he indicated that he had limitation of movement and that the disability caused difficulties with sleep. The pain was transient and not constant or severe. With respect to the service-connected hypertension, the Veteran indicated that it was fairly well-controlled but he did have periods of elevated blood pressure. Side effects from his hypertension medication included dizziness when he stood up or bent over quickly. The Veteran indicated that he retired in 1999 due to pain in his knees and head. The examiner indicated that he reviewed the Veteran's entire claims folder, including his service and post-service treatment records. She found the November 2011 opinion of Dr. O. to be not supported by his past treatment records. She noted that Dr. O's records indicated that the migraines were successfully prophylaxed with Inderal, that the only time neck pain was mentioned was in relation to some work-related activity, and that the Veteran's skin examinations were normal. The examiner found that the Veteran was not unemployable due to his the past history of severe acne while in the service. She was of the opinion that the Veteran should not have been granted service connection for the other disabilities. She also found nothing to contradict the opinion of the previous VA examiner. In this case, the Board finds the opinion of the Veteran's private physician, Dr. O. to be at least as probative as that of the VA examiners. In so finding, the Board notes that Dr. O. indicated that, like the VA examiners, he also had access to the Veteran's treatment records, and performed an interview of the Veteran. As with the VA examiner opinions, the Dr. O. provided a complete and thorough review of the Veteran's symptomatology and its impact on employability, as well as substantial rationale for the conclusions reached. As a treating physician working with a number of patients, he is presumed to have expertise in determining the functional effects of various disabilities on employability. Moreover, his findings are consistent with the medical evidence of record, to include VA examinations, discussing the severity of the Veteran's symptoms, particularly with regard to the nature and frequency of migraine headaches. Where, as here, after consideration of all evidence and material of record in a case for VA benefits, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107(b). See also 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Given the evidence, and resolving all reasonable doubt in the Veteran's favor, the Board concludes that the criteria for a TDIU rating are met. ORDER A compensable rating for the service-connected hypertension is denied. A TDIU rating is granted, subject to the regulations governing the payment of VA monetary benefits. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs