Citation Nr: 1306541 Decision Date: 02/26/13 Archive Date: 03/01/13 DOCKET NO. 10-05 759 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to a disability rating greater than 20 percent for xerostomia with limited motion of the jaw prior to October 1, 2012. 2. Entitlement to a disability rating greater than 30 percent for xerostomia with limited motion of the jaw from October 1, 2012. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from May 1975 to May 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2007 and October 2007 rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO), in New Orleans, Louisiana, that, in pertinent part, continued a 20 percent disability rating for the service-connected xerostomia with limited motion of the jaw and denied entitlement to a TDIU. During the pendency of this appeal, by rating action dated in October 2012, the RO determined that the service-connected xerostomia with limited motion of the jaw warranted a 30 percent disability rating, effective as of October 1, 2012. Applicable law provides that absent a waiver, a claimant seeking a disability rating greater than assigned will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and that a claim remains in controversy where less than the maximum available benefits are awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran has not withdrawn the appeal as to the issue of a disability rating greater than assigned, therefore, the issue remains in appellate status as captioned above. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDINGS OF FACT 1. Prior to October 1, 2012, the Veteran's xerostomia with limited jaw motion was manifested by dry mouth with an inter-incisal range from 23 to 25 millimeters. 2. From October 1, 2012, the Veteran's xerostomia with limited jaw motion was manifested by dry mouth with an inter-incisal range from 20 to 30 millimeters, with evidence of painful motion beginning at 11 millimeters. 3. The preponderance of the evidence of record does not show that the Veteran is unable to secure and follow substantially gainful employment as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 20 percent for xerostomia with limited motion of the jaw, prior to October 1, 2012, are not met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.114, 4.150, Diagnostic Code 7200-9905 (2012). 2. The criteria for a disability rating greater than 30 percent for xerostomia with limited motion of the jaw, from October 1, 2012, are not met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.114, 4.150, Diagnostic Code 7200-9905 (2012). 3. The criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). 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). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. By letters dated in April 2007, April 2008, September 2008, and April 2009 the Veteran was notified of the evidence not of record that was necessary to substantiate his claims. He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain. He was also provided with the requisite notice with respect to the Dingess requirements. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. For increased-compensation claims, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. See Vazquez-Flores v. Shinseki, 580 F. 3d 1270 (Fed. Cir. 2009); Wilson v. Mansfield, 506 F.3d 1055 (Fed. Cir. 2007). In this case, the Veteran was provided pertinent information in the above mentioned letters and other correspondence provided by the RO. Specifically, VA informed the Veteran of the necessity of providing, on his own or by VA, medical or lay evidence demonstrating a worsening or increase in severity of the respective disability, and the effect that the worsening has on his employment and daily life. The Veteran was informed that should an increase in disability be found, a disability rating would be determined by applying the relevant diagnostic codes; and examples of pertinent medical and lay evidence that he could submit relevant to establishing entitlement to increased compensation. The Veteran was also provided notice of the applicable relevant diagnostic code provisions. Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's relevant service and VA medical treatment records have been obtained. There is no indication of any additional, relevant records that the RO failed to obtain. The Veteran has been medically evaluated. In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. Increased disability ratings Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2012); Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Words such as "moderate," "moderately severe," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. 4.6 (2012). Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2012). It is possible for a Veteran to have separate and distinct manifestations from the same injury that would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); 38 C.F.R. § 4.14 (2012) (precluding the assignment of separate ratings for the same manifestations of a disability under different diagnoses). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45 (2012). VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. See Cullen v. Shinseki, 24 Vet. App. 74, 85 (2011). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The guidance provided under DeLuca must be followed in adjudicating claims where a rating under the diagnostic code provisions governing limitation of motion should be considered. However, the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the diagnostic code provisions predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2012). Xerostomia with Limited Motion of the Jaw The Veteran's service-connected xerostomia with limited motion of the jaw has been rated under Diagnostic Code 7200-9905. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the rating assigned. The additional diagnostic code is shown after a hyphen. 38 C.F.R. § 4.27. Diagnostic Code 7200 provides the rating criteria for injuries of the mouth. In this regard, residuals of mouth injuries are rated as for disfigurement and impairment of function of mastication. 38 C.F.R. § 4.114, Diagnostic Code 7200 (2012). Diagnostic Code 9905 provides the rating criteria for a dental and oral condition manifested by temporomandibular articulation as shown by limitation of motion the inter-incisal movement or range of lateral excursion. It is noted that ratings for limited inter-incisal movement shall not be combined with ratings for limited lateral excursion. Under this diagnostic code provision, a 20 percent disability rating is warranted where there is 21 to 30 millimeters of motion; a 30 percent disability rating is warranted where there is 11 to 20 millimeters of motion; and the maximum 40 percent disability rating is warranted where there is zero to 10 millimeters of motion. With regard to lateral motion, the maximum 10 percent disability rating is for application where the range of lateral excursion is from zero to four millimeters. 38 C.F.R. § 4.150, Diagnostic Code 9905 (2012). A review of the Veteran's claims file reveals that in November 2005, the Board denied the Veteran's claim for a disability rating greater than 20 percent for the service-connected xerostomia with limited motion of the jaw. In April 2007, the Veteran requested that he be awarded an increased disability rating. The RO denied the Veteran's claim by rating action dated in October 2007. VA outpatient treatment records dated from January 2007 to August 2012 (to include those electronically available through the Compensation and Pension Records Interchange (CAPRI) uploaded to the Veteran's Virtual VA electronic claims folder) show occasional treatment for mouth pain and difficulty with dry mouth and swallowing. A VA dental examination report dated in September 2007 shows that the Veteran reported having been diagnosed with nasopharyngeal carcinoma in 1979, and that he developed trismus and xerostomia as a result of radiation treatment. He added that subsequent extensive caries resulted in his having to have all of his teeth extracted. He reported that he tried to use artificial saliva, but that it did not work well. He described difficulty chewing some foods. He denied pain, swelling, and drainage, but reported difficulty opening his mouth and talking. Physical examination revealed 25 to 50 percent loss of the maxilla. There was no malunion or nonunion of the maxilla or mandible, and there was no loss of the mandible. inter-incisal range of motion was from zero to 25 millimeters and right and left lateral excursion was from zero to six millimeters. There was interalveolar range of motion of zero to 45 millimeters without teeth, but the examiner indicated this would calculate to about 25 millimeters if he were dentate. The examiner noted a loss of half of the bone of the hard palate on both sides which was replaceable by prosthesis. The examiner noted impaired articulation of some words, but speech was understandable. The Veteran was employed as a stocker at Goodwill, and the only effect on usual daily activities was moderate disability with regard to feeding. The examiner indicated there were no significant effects on usual occupation due to dry mouth and limited opening. A VA dental examination report dated in June 2009 shows that the Veteran reported that nasopharyngeal carcinoma was discovered while he was stationed in San Francisco. He reported that, after radiation therapy, he developed xerostomia, trismus, and rampant caries which required the extraction of all remaining teeth. He had maxillary and mandibular complete dentures, but would wear only the maxillary. He described moderate daily pain in the jaws and difficulty chewing some foods. Physical examination revealed loss of bone of the maxilla of 25 to 50 percent which was replaceable by prosthesis. There was no malunion or nonunion of the maxilla or mandible, and no loss of bone of the mandible. At the temporomandibular articulation, inter-incisal range of motion was from zero to 23 millimeters; right lateral excursion was from zero to eight millimeters; and left lateral excursion was from zero to seven millimeters. There was loss of half of the bone of the hard palate on both sides which was replaceable by prosthesis. There was impaired articulation of some words, but speech was understandable. The examiner indicated that the trismus and xerostomia resulted in a moderate problem with feeding, but otherwise had no effect on usual daily activities. A VA dental and oral examination report dated October 1, 2012, shows that the Veteran provided a history consistent with that as set forth above. It was indicated that there was no mouth injury that resulted in impairment of mastication or speech impairment. Xerostomia and trismus secondary to radiation therapy were indicated. Physical examination revealed inter-incisal range of motion was from 21 to 30 millimeters, with objective evidence of painful motion at 11 to 20 millimeters, to include following repetitive testing. Lateral excursion was from zero to four millimeters, with no objective evidence of painful motion. The diagnosis was xerostomia with limitation of motion of the temporomandibular joint. Functional impact was limited to xerostomia which made it difficult to talk clearly - the Veteran was noted to have a raspy voice; and limited movement of the mandible which caused him difficulty in eating anything other than soft foods. The oral or dental condition, to include the temporomandibular joint, was said not to impact his ability to work. Having considered the evidence of record, the Board finds that a disability rating greater than 20 percent is not warranted prior to October 1, 2012; nor is a disability rating greater than 30 percent warranted from October 1, 2012. In assessing the Veteran's disability under the criteria of Diagnostic Code 9905 prior to October 1, 2012, the next higher 30 percent disability rating requires inter-incisal range of motion between 11 to 21 millimeters. The VA above examination reports show that inter-incisal range of motion in September 2007 was to 25 millimeters and in June 2009 was to 23 millimeters. Such findings do not meet the criteria for the next higher 30 percent disability rating prior to October 1, 2012. Thus, the currently assigned 20 percent disability rating prior to October 1, 2012, is appropriate. The Board has also considered whether there was any additional limitation of motion due to weakened movement, excess fatigability, incoordination, or painful motion on use as required under DeLuca during this time period. In this regard, in September 2007 and June 2009, the VA examiners noted that the Veteran denied pain and swelling, and that functional impairment was limited to moderate difficulty opening his mouth, feeding, and talking which are contemplated in the schedular criteria regarding limitation of motion. As such, the Board finds that there was no evidence of additional limitation of motion due to weakened movement, excess fatigability, incoordination, or painful motion prior to October 1, 2012. In assessing the Veteran's disability under the criteria of Diagnostic Code 9905 from October 1, 2012, the next higher 40 percent disability rating requires inter-incisal range of motion between zero and 10 millimeters. The October 2012 VA examination report shows that inter-incisal range of motion was from 21 to 30 millimeters. Such findings do not meet the criteria for a 30 percent disability rating. However, the VA examiner indicated that objective evidence of painful motion begins from 11 to 20 millimeters, and that following repetitive motion, inter-incisal range of motion was from 11 to 20 millimeters. Thus, in applying the holding in DeLuca, a 30 percent disability rating was warranted as of October 1, 2012. As such, the Board finds that even considering the additional limitation of motion due to weakened movement, excess fatigability, incoordination, or painful motion from October 1, 2012, a disability rating greater than 30 percent is not warranted. Additionally, the Board has considered the statements of the Veteran as to the extent of his current symptoms. While certainly competent to report that his symptoms are worse, in evaluating a claim for an increased schedular rating, VA must only consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Based upon the guidance in Hart, the Board has considered whether additional staged rating is appropriate. However, in the present case, the Veteran's symptoms remained constant throughout the course of the period on appeal within the currently established stages, therefore, additional staged ratings are not warranted. The Board has considered the benefit of the doubt doctrine; however, the preponderance of the evidence is against an increased disability rating for xerostomia with limited motion of the jaw. Thus, the benefit of the doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). Extra-schedular Consideration Finally, the Board finds that the Veteran's xerostomia with limited motion of the jaw does not warrant referral for extra-schedular consideration. In exceptional cases where schedular ratings are found to be inadequate, consideration of an extra-schedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. The Board finds that the evidence does not warrant referral of the Veteran's claim for extra-schedular consideration. The level of severity of the Veteran's xerostomia with limited motion of the jaw is adequately contemplated by the applicable diagnostic criteria. The criteria provide for a higher rating, but as has been thoroughly discussed above, the rating assigned herein is appropriate. In view of the adequacy of the disability rating assigned under the applicable diagnostic criteria, consideration of the second step under Thun is not for application in this case. Accordingly, the claim will not be referred for extra-schedular consideration. TDIU Veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. Total disability will be considered to exist when there is presented 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 (2012). If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an rating of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341 (2012). In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15 (2012). If the schedular rating is less than total, a total disability rating can be based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a) (2012). Nevertheless, it is the established policy of VA that all Veterans who are individually 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(b). The percentage standards of 38 C.F.R. § 4.16(a) are set aside only when the evidence clearly and factually shows the Veteran has been rendered unemployable solely due to service connected disabilities regardless of their individual and combined percentages. Id. The pertinent governing criteria set out in detail above are predicated on a Veteran having been granted service connection for a disability or disabilities sufficient to warrant a TDIU. In this case, service connection is in effect for impaired swallowing, pharyngeal stage, associated with nasopharyngeal cancer, rated 30 percent from March 3, 2003; voice deterioration due to vocal cord cysts associated with nasopharyngeal cancer, rated 30 percent from April 4, 2007; xerostomia, with limited motion of the jaw, rated 20 percent from April 3, 2000, and 30 percent from October 1, 2012; loss of teeth with bone loss and masticatory problems associated with nasopharyngeal cancer, rated 20 percent from April 3, 2000; loss of sense of smell associated with nasopharyngeal cancer, rated 10 percent from April 3, 2000; trismus (spasms of the chewing muscles) secondary to radiation therapy associated with nasopharyngeal cancer, rated 10 percent from July 2, 2007; loss of sense of taste, rated noncompensable from April 3, 2000; nasopharyngeal cancer, rated noncompensable from April 3, 2000; and bilateral hearing loss, rated noncompensable from April 13, 2001. The Veteran has a combined disability rating of 60 percent from March 3, 2003; 70 percent from April 4, 2007; and 80 percent from July 3, 2007. 38 C.F.R. § 4.16(a)(2). In 2005, the Veteran indicated that he completed high school and had no further education. The Veteran's claim for entitlement to a TDIU was received on April 4, 2007, and he has had a combined 70 percent disability rating since that time. While he has not had one disability rated at 40 percent or higher since the date of claim, his compensable service-connected disabilities all result from a common etiology, thus he meets the minimum schedular requirements for a TDIU. See 38 C.F.R. § 4.16(a)(2). However, the evidence must still approximate a finding that the Veteran is unable to pursue a substantially gainful occupation due to the service-connected disabilities. Thus, the issue is whether the evidence is near to balance (i.e., that supporting the claim and opposing the claim is nearly approximately the same) that the Veteran's service-connected disabilities prevent him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). For a Veteran to prevail on a claim for a TDIU, the record must reflect some factor, which takes this case outside the norm. 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 the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). An Application for Increased Compensation Based on Unemployability (VA Form 21-894) received in March 2009 shows that the Veteran indicated that he last worked full time in January 2009 for McDonald's Corporation as a maintenance worker. He reported that he left employment as a result of all of his service-connected disabilities. By letter dated in April 2009, the RO requested that the Veteran have his employers complete and return enclosed Request for Employment Information (VA Forms 21-4192), however, the Veteran did not return any such completed forms. A VA audiology examination report dated in July 2007 shows that the Veteran reported difficulty hearing in environments with background noise and when listening over the telephone. The examiner indicated that he was a borderline candidate for amplification because hearing loss occurred at very high frequencies. The examiner indicated he would be able to communicate in most settings with limited difficulty as a result of hearing loss, and that, in general, noisy settings would be difficult situations for communication. The examiner concluded that the Veteran was not unemployable as a result of hearing loss. A VA mouth, lips, and tongue examination report dated in July 2007 shows that the Veteran reported a history of radiotherapy for nasopharyngeal carcinoma in 1978, and the subsequent development of a very dry upper aerodigestive system, radiation caries, trismus, bone loss in the mandible, trouble initiating and executing swallow due to no saliva, loss of smell and taste, and a delayed-onset altered voice. He also reported sustaining a jaw fracture in 2000 which was not treated. He described difficulty chewing, swallowing soft solid food, dry mouth, altered sense of taste, and speech difficulty. He denied difficulty swallowing liquid food, tongue loss, lip pain, mouth pain, tongue pain, or other pain. The examiner noted a hoarse voice due to a cyst in the larynx and trismus to two centimeters. The examiner indicated that, at the time of the examination, the Veteran was employed full time at Goodwill, and he had not lost any time at work due to residuals from the nasopharyngeal carcinoma. The examiner indicated there were no significant effects on his usual occupation as a result of the trismus, laryngeal cyst, gone loss, loss of smell and taste, dysphagia (difficulty swallowing), or xerostomia with limited motion of the jaw. A VA examination report dated in July 2007 shows that the Veteran reported that he was employed full time. In addition to his service-connected disabilities of impaired swallowing and xerostomia with limited motion of the jaw, he reported a history of gastroesophageal reflux disease and a stab wound to the left mid thigh in 1993 which resulted in residual muscle atrophy and muscle weakness in the left lower leg and foot drop. Additionally, it was noted that he had a history of inactive hepatitis C without current symptoms or treatment. He reported that he was unable to wear a lower denture, but would wear a complete upper denture. The examiner opined that any unemployability would be due to the combined effects of the service-connected conditions (pending the results of an ear, nose, and throat consultation) as well as the stab wound of the left thigh with residual nerve damage. The examiner indicated that any further speculation would merely be speculative. A VA dental examination report dated in September 2007 shows that the Veteran provided a history of nasopharyngeal carcinoma in 1979 with the development of trismus, xerostomia, and caries as a result of radiation treatment. At the time of this examination, he was said to be employed as a stocker at Goodwill, and the only effect on usual daily activities was moderate disability with regard to feeding. The examiner indicated there were no significant effects on usual occupation due to dry mouth and limited opening. A VA outpatient treatment record dated in January 2009 shows that the Veteran reported having lost his job at McDonald's because he did not show up for work due to drug use. Treatment records also show that the Veteran was treated intermittently for symptoms associated with diagnosed cocaine abuse and dependence, as well as psychosis secondary to cocaine abuse. Service connection is not in effect for polysubstance abuse or any related psychosis. Subsequent VA outpatient treatment records also show that the Veteran was working at a Goodwill Store in June 2009; for F & N Service in July 2009; and a CWT job in August 2009. A VA dental examination report dated in June 2009 shows that the Veteran reported the history of nasopharyngeal carcinoma with subsequent xerostomia, trismus, and rampant caries. The Veteran had impaired articulation of some words, but speech was understandable. The examiner indicated that the trismus and xerostomia resulted in a moderate problem with feeding, but otherwise had no effect on usual daily activities. The examiner added that the Veteran was employed as a cook, but was not working because he had been laid off. A VA examination report dated in June 2009 shows that evaluation with regard to voice deterioration and loss of sense of taste and smell shows that the Veteran reported that nothing in his history had changed since his last examination in July 2007 except that his voice was hoarser and softer. The examiner indicated that he had generalized edema of the larynx; inspissation of mucus; phonation with false cords rather than true cords; and atrophy of the mucus membranes with inspissation of mucus which contributed to a lack of sense of smell and taste and to hoarseness. The examiner indicated that the lack of taste and smell limited his enjoyment of life, and the hoarseness interfered with employment and interpersonal communication. The Veteran reported that he had been working as a telemarketer, but lost his job. The examiner did not indicate that the lack of taste and smell or the hoarseness would prevent him from gainful employment. A VA audiology examination report dated in June 2009 shows that the examiner indicated the Veteran's hearing loss resulted in difficulty following instructions, but did not indicate that this would render him unemployable. The October 2012 VA dental and oral examination report shows that the examiner concluded that while the Veteran's diagnosed xerostomia with limitation of motion of the temporomandibular joint made it difficult to talk clearly and to eat anything other than soft foods, the oral and dental condition did not impact his ability to work. Having considered the competent evidence of record, the Board finds that the evidentiary record does not support a conclusion that the Veteran's service-connected disabilities precluded him from obtaining gainful employment. In this regard, the VA examiners have consistently indicated that while his service-connected disabilities may have impacted employment to some degree, his disabilities did not prevent him from maintaining gainful employment. In this regard, while the July 2007 VA examiner suggested that the service-connected disabilities in combination with the non-service-connected disabilities rendered him unemployable, the examiner specifically indicated that the opinion was conditioned upon the findings of a later ear, nose, and throat consultation which ultimately concluded that the service-connected disabilities had no significant effects on usual occupation. Most recently, the VA examiner in October 2012 concluded that the Veteran's oral and dental conditions did not impact his ability to work. The Board acknowledges the Veteran's assertions that he cannot work because of his service-connected disabilities. However, the Board also finds probative the January 2009 VA outpatient treatment records which show that the Veteran had been employed until, by his own admission, he did not report for work due to drug use, and that he had been diagnosed with non-service-connected cocaine abuse and dependence, as well as psychosis secondary to cocaine abuse. The evidence of record also shows that the Veteran had been employed at least until August 2009. The Board has considered the statements of the Veteran as to the extent of his current symptoms. He is certainly competent to report that his symptoms are worse. See Layno, 6 Vet. App. at 470. However, in evaluating a claim for an increased schedular rating, to include a TDIU, VA must consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. The Board concludes that, overall, the evidence of record is not evenly balanced so as to permit application of the reasonable doubt doctrine in favor of the Veteran. To the contrary, the preponderance of the evidence is against the Veteran's claim that his service-connected disabilities render him unable to obtain or retain substantially gainful employment. Overall, the evidence of record does not support the Veteran's claim that he incapable of performing the physical and mental acts required by employment as a result of his service-connected disabilities. Accordingly, the Board finds that entitlement to a TDIU is not warranted, and the appeal must be denied. ORDER A disability rating greater than 20 percent for xerostomia with limited motion of the jaw prior to October 1, 2012, is denied. A disability rating greater than 30 percent for xerostomia with limited motion of the jaw prior to October 1, 2012, from October 1, 2012, is denied. Entitlement to a TDIU is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs