Citation Nr: 1306790 Decision Date: 02/27/13 Archive Date: 03/01/13 DOCKET NO. 03-21 683A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus, Type II. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to July 11, 2005. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from June 1969 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois which, in pertinent part, denied service connection for hypertension and denied entitlement to TDIU. In an August 2003 rating decision, the RO confirmed its previous denial of service connection for hypertension. In a June 2007 rating decision, service connection was established for posttraumatic stress disorder (PTSD) and a 100 percent evaluation assigned effective July 11, 2005. Although the Board indicated in its March 2011 decision that the 100 percent schedular evaluation effective from July 11, 2005, rendered the issue of entitlement to a TDIU from that date moot, the receipt of a 100 percent schedular disability evaluation for a service-connected disability or disabilities does not necessarily moot the issue of entitlement to a TDIU. Bradley v. Peake, 22 Vet. App. 280 (2008) (holding that a TDIU rating may still form the basis for assignment of special monthly compensation (SMC) under 38 U.S.C.A. § 1114(s)). The Board acknowledges further, however, that the Veteran is currently in receipt of SMC under 38 U.S.C.A. § 1114(s) based on the disability ratings assigned to his currently service-connected disabilities. See October 2011 rating decision. The Board denied entitlement to TDIU prior to July 11, 2005 in a March 2011 decision. In a December 2011 Order, the United States Court of Appeals for Veterans Claims (Court) endorsed a Joint Motion for Remand, vacated that part of the Board's May 2011 opinion denying entitlement to TDIU and remanded this issue for further action consistent with the terms in the joint motion. The Board remanded the claim for hypertension in December 2008 and March 2011. The Board had also remanded service connection claims for chloracne and a bilateral foot condition in December 2008 for further development. These claims were subsequently granted in a November 2009 rating decision. The Veteran has not appealed the evaluations assigned these disabilities or the effective dates of service connection. Accordingly, these claims are no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement (NOD) must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). In June 2012, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to attempt to obtain additional medical records. The action specified in the June 2012 Remand completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran's hypertension did not have onset in service and was not caused or permanently aggravated by the Veteran's active military service, to include his service-connected diabetes mellitus Type II. 2. The Veteran was not prevented from finding or maintaining substantially gainful employment solely due to his service-connected disabilities prior to July 11, 2005. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus Type II have not been met. 38 U.S.C.A. §§ 1110, 1112 (West & Supp. 2010); 38 C.F.R. § 3.303, 3.307, 3.309, 3.310 (2012). 2. The criteria for entitlement to TDIU prior to July 11, 2005 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including hypertension, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112, (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.307, 3.309 (2012). For those conditions explicitly recognized as "chronic" under 38 C.F.R. § 3.309(a), the provisions of 38 C.F.R. § 3.303(b) provide an alternative method of establishing the second and third elements through a demonstration of continuity of symptomatology. Walker v. Shinseki, No. 10-2634, 2011 WL 2020 (Fed. Cir. February 21, 2013). Service connection may 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 C.F.R. § 3.303(d) (2012). Additionally, service connection may be granted, on a secondary basis, for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310 (2012). Similarly, any increase in severity of a non-service-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the non-service-connected disease, will be service-connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service-connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. In cases of aggravation of a veteran's non-service-connected disability by a service-connected disability, the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.322(2012). The Veteran is seeking entitlement to service connection for hypertension, which he has claimed was caused or permanently aggravated by his service-connected diabetes mellitus. The Veteran's service treatment records are negative for complaints of or treatment for hypertension. His blood pressure on his March 1971separation examination was 128/80. Post-service, there is no evidence of complaints of or treatment for hypertension before 2002, as no earlier medical records are available. However, in his claim, the Veteran states that he was first diagnosed with hypertension in 1979. This is contradicted by a July 2002 VA outpatient treatment note, which documents the onset of the Veteran's diabetes mellitus as 1992 and the onset of his hypertension as 1997. In September 2002, the Veteran was afforded a VA examination. At that time, he claimed his hypertension and diabetes mellitus had onset in 1979. He was diagnosed with hypertension, which the examiner concluded was not due to his diabetes mellitus. Unfortunately, the examiner provided no explanation for this conclusion. In March 2003, the Veteran submitted a letter from his primary care physician, Dr. I.D., who states that the Veteran "has trouble maintaining his sugar levels even with medication, insulin, and close monitoring. This frustration along with diabetes causes an elevation in his blood pressure." Dr. I.D. reported that the Veteran would need ongoing treatment to attempt to control both his diabetes mellitus and hypertension. In May 2003, the Veteran was afforded another VA examination. At that time, he reported being diagnosed with both diabetes mellitus and hypertension 20 years ago, which would place onset in 1993. While he noted that his blood pressure occasionally ran a bit high, he described it as generally well controlled. The Veteran was again diagnosed with chronic hypertension, unrelated to diabetes mellitus, but again the examiner failed to provide a rationale for his conclusions. In a February 2004 addendum, the May 2003 examiner clarified the reasons for his opinion, noting that because the Veteran had been diagnosed with diabetes mellitus and hypertension at approximately the same time, there was no time for the Veteran's diabetes mellitus to cause renal involvement. He observed that the record showed no evidence of diabetic nephropathy and that in the absence of any evidence of this, the Veteran's diabetes mellitus was not likely the cause of his hypertension. In June 2009, the Veteran was again afforded a VA examination. At this time, he reported that he was diagnosed with hypertension in 1989 and with diabetes mellitus in 1996. He denied any symptoms of hypertension. The VA examiner opined that it was less likely than not that his hypertension is caused or aggravated by his diabetes mellitus, noting that the Veteran's hypertension had onset prior to the Veteran's diabetes mellitus and that there is no evidence that the Veteran has hypertension due to renal insufficiency secondary to diabetes. The examiner concluded that the Veteran "appears to have primary hypertension aggravated by obesity and sleep apnea." In May 2011, the Veteran was afforded yet another examination. The Veteran reported that he was diagnosed with diabetes mellitus and hypertension in 1983 at a routine physical. He reported a more recent diagnosis of coronary artery disease. He was diagnosed with essential hypertension. The examiner concluded that the Veteran's hypertension was less likely than not directly or aggravated by the Veteran's active military service since there was no evidence of hypertension in service and the Veteran was not diagnosed with hypertension until many years after separation from service. He also opined that it was less likely than not that the Veteran's service-connected diabetes mellitus caused or permanently aggravated the Veteran's active military service, since the two disabilities were diagnosed at the same time and the Veteran does not have renal disease caused by diabetes mellitus that would cause hypertension as a result of increased sodium re-absorption. The Veteran's renal function was normal with no protein in the urine. Based on all the above evidence entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus, must be denied. There is no evidence of hypertension in service, within one year of service, or for many years after separation from service. Accordingly, entitlement to service connection cannot be granted on a direct basis. Additionally, the preponderance of the evidence is against a finding that the Veteran's hypertension was caused or permanently aggravated by the Veteran's service-connected diabetes mellitus. While the Veteran has provided varying accounts of when exactly he was first diagnosed with hypertension and diabetes mellitus and those dates span almost two decades, the Veteran has generally been consistent in reporting either that the Veteran's hypertension preceded his diabetes mellitus or that the two disabilities were diagnosed at approximately the same time, making it unlikely that his hypertension was caused by his diabetes mellitus. Additionally, multiple VA examiner have explained that in the absence of evidence that the Veteran's diabetes mellitus has caused renal disease, it is less likely than not that the Veteran's hypertension was either caused or permanently aggravated by the Veteran's active military service. While the Veteran's representative noted in a January 2013 informal hearing presentation that the Veteran has had instances of protein in his urine and "borderline albuminuria", the Board notes that the VA treatment records continue to show good renal function and the Veteran has presented no evidence of nephropathy with subsequent cardiovascular disease. The Board has also considered the statement from the Veteran's treating physician, Dr. I.D., who states that the Veteran "has trouble maintaining his sugar levels even with medication, insulin, and close monitoring. This frustration along with diabetes causes an elevation in his blood pressure." However, even assuming that some combination of stress and diabetes mellitus causes an elevation in the Veteran's blood pressure, it is unclear from Dr. I.D's statement whether such an elevation is permanent or merely a temporary fluctuation after which the Veteran's hypertension returns to its baseline state. Stated another way, Dr. I.D. does not explicitly finds that the Veteran's diabetes mellitus either caused or permanently aggravated the Veteran's hypertension beyond the natural progression of the disability. Accordingly, the Board finds that his opinion has little probative value. The poorly controlled nature of the Veteran's diabetes mellitus is well documented in the VA outpatient treatment records; however, multiple VA examiners have all concluded that the Veteran's hypertension was not caused or permanently aggravated by his diabetes mellitus. They have explained that unless his diabetes mellitus leads to the development of nephropathy, which in turn can cause hypertension and other cardiovascular problems, the Veteran's hypertension and diabetes mellitus are unrelated. In cases such as this, where there are conflicting statements or opinions from medical professionals, it is within the Board's province to weigh the probative value of those opinions. In Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993), the U.S. Court of Appeals for Veterans Claims (Court) stated: The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicators; . . . So long as the Board provides an adequate reason or basis for doing so, the Board does not err by favoring one competent medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Greater weight may be placed on one examiner's opinion over another depending on factors such as reasoning employed by the examiners and whether or not, and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Additionally, the thoroughness and detail of a medical opinion are among the factors for assessing the probative value of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Here, the Board finds that the opinions of the VA examiners are more probative than that of Dr. I.D. The June 2009 and May 2011 VA examiners provided a rationale for their conclusions based on medical principles that is consistent with the evidence of record. In contrast, Dr. I.D. did not clearly explain his conclusions or his underlying rationale. The Board also acknowledges that the Veteran himself believes that there is a relationship between his service-connected diabetes mellitus and his hypertension. 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 layman, 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. Id. 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 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 hypertension 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, the Veteran's opinion of the etiology of his current disability is not competent evidence and is entitled to low probative weight. For all the above reasons, entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus Type II, is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). TDIU The Veteran is also seeking entitlement to TDIU prior to July 11, 2005. As noted above, in a June 2007 rating decision, service connection was established for posttraumatic stress disorder (PTSD) and a 100 percent evaluation assigned effective July 11, 2005. As noted in the Introduction, the issue before the Board is that of entitlement to a TDIU prior to July 11, 2005. The schedular rating criteria are designed to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155 (West 2002). "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1 (2012). A total disability evaluation may be assigned where the schedular evaluation is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2012). Here, the Veteran does not meet this criteria for the period at issue. However, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reasons of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration of all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educations and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the Veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). In determining whether the Veteran is entitled to a TDIU, neither his non-service connected disabilities nor his age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Court has held that the central inquiry in determining whether a Veteran is entitled to a total rating based on individual unemployability is whether service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). The test of individual unemployability is whether the Veteran, as a result of his service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation which is consistent with his education and occupational experience. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. Between June 20, 2002 and July 11, 2005, the Veteran had the following service-connected disabilities: diabetes mellitus with venous stasis/insufficiency of the lower extremities, assigned a 20 percent disability rating; peripheral neuropathy of the left and right lower extremities, each assigned a ten percent disability rating; chloracne with scarring, assigned a 30 percent rating; and erectile dysfunction, assigned a non-compensable (0 percent) rating. The Veteran's combined disability rating for the period on appeal was 60 percent. In January 2002, the Veteran had an appointment at VA to establish care. At that time, he was working as a laborer, but stated that he intended to retire in June. He denied any difficulties ambulating, although he did complain of some pain and numbness in his feet. In June 2002, the Veteran filed his claim for TDIU. In September 2002, he was afforded a VA examination. At that time, he claimed that he stopped working as a plumbing inspector earlier in the year because his legs were hurting and his feet were swollen, as well as because he was under a lot of stress, which he claimed resulted in poor control of his blood sugar. He complained of pain, numbness, weakness, swelling, and tingling in his lower extremities. He also complained of fatigue and lack of endurance. On examination, peripheral pulses were all present and equal. Dorsalis pedis was palpable. External pulses were not palpable nor was the posterior tibial pulse. The Veteran's feet were cold, there were no callosities, ulcers, or breaks in the skin. There was no observable swelling or vascular changes in the feet. The Veteran was able to stand, squat, and rise on his toes and heels without any problems. Strength in the upper and lower extremities was normal, 5/5, and equal. The brachial and radial reflexes were present and equal, but reflexes in the knees and ankles were absent. There was diminished sensation to pinprick and cotton wool in the feet. The Veteran was diagnosed with diabetes mellitus with no activity restrictions, mild peripheral; neuropathy of the feet, and hypertension without evidence of heart disease. The examiner opined that "although the Veteran cannot perform work requiring heavy lifting more than 20 pounds he can perform desk type work, so he is not unemployable." In his October 2002 notice of disagreement, the Veteran complained that he has to check his blood sugar three times a day and take insulin twice daily. He complained of difficulty focusing his eyes and blurry vision, as well as swelling in his feet. He claimed that he "got nervous with paperwork", which he believed caused his blood pressure to rise. He claimed that he attempted "desk work" after his discharge and "could not adjust." In June 2009, the Veteran was afforded a VA examination. At the time of the examination, the Veteran complained of diabetic neuropathy affecting both the upper and lower extremities, with loss of fine motor abilities in the hands and pain in the feet with prolonged standing and walking. The Veteran reported using a cane occasionally for assistance. He also complained of diabetic retinopathy, erectile dysfunction, sleep apnea, hypertension, allergic rhinitis, and posttraumatic stress disorder (PTSD). His PTSD caused paranoid thoughts, avoidance of crowds, and depression. The Veteran's occupational history was as a construction laborer, with one year of college training. He reported that he quit his job in 2001 because of his diabetes and his PTSD. The Board notes that service connection for PTSD was not established until July 2005. The VA examiner concluded that the Veteran's ability to perform his past work as a laborer would be limited due to his limited ability to stand or walk for prolonged periods, as well as because of his insulin use and PTSD symptoms. However, the examiner opined that the Veteran's service-connected disabilities would not preclude him from performing sedentary employment. Because the June 2009 examination addressed the Veteran's employability at the time of the examination and not during the period on appeal, the question was referred for a VA medical opinion. In July 2012, the examiner concluded that the Veteran's PTSD likely rendered him unemployable between 2002 and 2005, based on the Veteran's claims that he quit his job due to increasing PTSD symptoms. The examiner further concluded that the Veteran's service-connected diabetes mellitus and peripheral neuropathy did not substantially contribute to the Veteran's unemployability. He noted that although the Veteran had neuropathy and episodes of hypoglycemia, he still continued to exercise. He also noted that the Veteran was not prescribed medication for his neuropathy until August 2005. However, as the Board has noted previously, the Veteran was not service connected for PTSD until July 2005. Accordingly, the July 2012 opinion was inadequate. The matter was returned to the examiner, who in December 2012 issued an addendum to his previous opinion. He stated that between 2002 and 2005, the Veteran's chloracne, diabetes mellitus, peripheral neuropathy of the lower extremities, and erectile dysfunction did not substantially contribute to the Veteran's unemployability. As rationale, he noted there was evidence that the Veteran continued to remain active by exercising during this period and no evidence that the Veteran's service-connected disabilities significantly impacted his activities of daily living. He based this on review of the Veteran's VA outpatient treatment records, which showed that he was followed for the claimed conditions, but did not note any significant limitations as a result of them. Based on all the above evidence, the Board finds that entitlement to TDIU is not warranted prior to July 11, 2005. While there is some evidence that the Veteran's service-connected diabetes mellitus and peripheral neuropathy of the lower extremities rendered the Veteran unable to successful perform the his past physically demanding work in the construction field, the September 2002, June 2009, and December 2012 VA examiner all agreed that the Veteran was not completely unemployable due to his service-connected disabilities. Rather, he would still be capable of at least sedentary employment. This finding is supported by the objective medical evidence, which does not show that the Veteran's service-connected disabilities were so severe that they would preclude all forms of employment. While the Veteran has complained that he has tried "desk work" in the past and "could not adjust", the mere fact that the Veteran was used to less sedentary types of work does not render him unemployable. Additionally, to the extent the Veteran has claimed that his service-connected disabilities alone rendered him unemployable between 2002 and 2005, the Board does not find the Veteran's testimony to be reliable. While the Veteran has claimed that he was unable to work any longer due to his physical disabilities, such as at the September 2002 VA examination, at an April 2007 VA psychiatric examination, he claimed that he "was working as a truck driver for many companies until 2002 when he was forced to quit due to increasing PTSD symptoms, including isolation, irritability, and inability to work with coworkers and supervisors." This statement in turn appears contrary to the Veteran's account to a therapist at the Vet Center in January 2006 that "he was a good employee, however, and continued working and being promoted by the City of Chicago until his recent retirement." Given these conflicting statements, the exact reason for the Veteran's retirement from his job with the city remains unclear and the Board gives little weight to the inconsistent statements of record in this regard. See Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (Credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony). The Board notes that in his December 2012 addendum, the VA examiner observed that while the Veteran's VA treatment records show that he was not working between 2002 and 2005, the examiner was unable to find any medical explanation for the Veteran's lack of employment. Based on all the above reasons, entitlement to TDIU prior to July 11, 2005 is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The Duty to Notify and Assist 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 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). Proper notice from VA must inform the claimant of any information and 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. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the VCAA duty to notify was satisfied by letter sent to the Veteran in August 2002, March 2006, and March 2007. These letters informed the Veteran of what evidence was required to substantiate his claims, as well as of VA and the Veteran's respective duties for obtaining evidence. The Veteran was also informed of how VA assigns disability ratings and effective dates. However, the duty to notify was not satisfied prior to the initial unfavorable decision on the claim by the AOJ. Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation." Rather, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the AOJ's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the AOJ) see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). In this case, the VCAA duty to notify was satisfied subsequent to the initial AOJ decision by way of letters sent to the Veteran in March 2006 and March 2007. Although the notice letters were not sent before the initial AOJ decision in this matter, the Board finds that this error was not prejudicial to the Veteran because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the Veteran been afforded a meaningful opportunity to participate effectively in the processing his claim and given ample time to respond, but the AOJ also readjudicated the case by way of a supplemental statements of the case issued in November 2009, March 2012, June 2012, and December 2012, after the notice was provided. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service treatment records, as well as VA treatment records. The Veteran submitted a private medical opinion from Dr. I.D.. The Veteran has claimed that there are relevant treatment records from Dr. I.D.; however, in a June 2012 letter, the Veteran was informed that a previous release submitted by the Veteran had expired and that the Veteran needed to submit a new one. The Veteran was provided with VA Form 21-4142 and asked to complete and return it this form with Dr. I.D.'s information so that records from him could be requested. He was also asked to complete releases for any other private treatment providers who might have relevant information concerning his claims. The Veteran did not respond to this request by submitting a completed release or by providing copies of any relevant records. Accordingly, the Board finds that any additional development is not required. The Veteran was afforded a VA medical examinations and opinions in September 2002, May 2003, April 2004, June 2009, May 2011, July 2012, and December 2012. These examinations are adequate and probative for VA purposes because the examiners relied on sufficient facts and data, provided a rationale for the opinion rendered, and there is no reason to believe that the examiners did not reliably apply reliable scientific principles to the facts and data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus Type II, is denied. Entitlement to TDIU prior to July 11, 2005 is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs