Citation Nr: 1315205 Decision Date: 05/08/13 Archive Date: 05/15/13 DOCKET NO. 06-18 448 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). ATTORNEY FOR THE BOARD J.M. Rutkin, Associate Counsel INTRODUCTION The Veteran had active military service from April 1968 to November 1969. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a June 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this claim in November 2008, August 2009, and June 2010 for further development, in part, because the outcome of this claim was dependent on the resolution of other claims that were also at the time before the Board. In other words, this TDIU claim was "inextricably intertwined" with those other claims. See Holland v. Brown, 6 Vet. App. 443, 446 (1994) (TDIU claim predicated on a particular service-connected condition is inextricably intertwined with an increased-rating claim regarding the same condition). During the pendency of this appeal, this claim was referred to the Director of VA's Compensation and Pension Service for consideration of entitlement to a TDIU on an extra-schedular basis under the special provisions of 38 C.F.R. § 4.16(b). The Director denied this special entitlement in an October 2012 decision. Since the Board's most recent June 2010 remand, the Veteran has submitted petitions to reopen previously denied claims for service connection for sleep apnea, including as secondary to already service-connected Type II Diabetes Mellitus, and for associated peripheral neuropathy of his right lower extremity, so including as secondary to the diabetes. As the agency of original jurisdiction (AOJ), the RO has not determined in the first instance whether there is the required new and material evidence to reopen these claims. Therefore, the Board does not presently have jurisdiction to consider these other claims so is referring them to the RO for appropriate action. See Godfrey v. Brown, 7 Vet. App. 398 (1995) (the Board generally does not have jurisdiction over a claim not yet adjudicated by the RO). The Veteran also submitted a February 2013 statement regarding his wife's health following a January 2013 denial of entitlement to aid and attendance for her. The RO therefore needs to clarify whether the Veteran is appealing that decision denying this claim. Finally, since the RO last adjudicated this claim of entitlement to a TDIU in a November 2012 supplemental statement of the case (SSOC), the Veteran has submitted additional evidence, including private treatment records addressing his sleep apnea and a January 2010 VA treatment record indicating the results of a chest X-ray and CT scan of his abdomen. Under 38 C.F.R. § 20.1304(c) (2012), any pertinent evidence accepted directly at the Board must be referred to the AOJ for initial review unless the appellant waives this procedural right. Although the Veteran did not submit a waiver allowing the Board, rather than the AOJ (RO) to initially consider this additional evidence, it is not relevant to this TDIU claim inasmuch as service connection has not been established for the conditions mentioned in this evidence - namely, sleep apnea, a lung or respiratory disorder, and a heart or cardiovascular disorder. Thus, such a waiver is not required since this evidence has no bearing on this TDIU claim. See id. The Veteran also submitted a number of release forms (VA Form 21-4142) authorizing VA to obtain additional confidential private treatment records he cited as needing to be obtained. But these forms do not constitute evidence, themselves, and were submitted in connection with his petitions to reopen his previously denied claims for sleep apnea and peripheral neuropathy. Accordingly, remand is not warranted based on this newly-submitted information, allowing the Board to proceed with its appellate review of the TDIU claim. FINDING OF FACT The Veteran's service-connected - which are diabetes, dizziness, kidney disorder, hearing loss, tinnitus, and erectile dysfunction - are not sufficiently disabling as to prevent him from obtaining or maintaining substantially gainful employment given his prior vocational attainment, work history, and level of education. CONCLUSION OF LAW The criteria are not met for a TDIU on either a schedular or extra-schedular basis. 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (2012) REASONS AND BASES FOR FINDING AND CONCLUSION In deciding this claim, the Board has reviewed all of the evidence in the claims file, both the physical claims file and electronic ("Virtual VA") file, and has an obligation to provide an adequate statement of reasons or bases supporting this decision. See 38 U.S.C.A. § 7104(d)(1) (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). But while the Board must review the entire record, it need not discuss each and every piece of evidence. See id. The analysis below therefore focuses instead on the most salient and relevant evidence and on what this evidence shows, or fails to show, regarding the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). The Board must assess the credibility and weight of all evidence, so both the medical and lay evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive and providing reasons for rejecting any evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. When the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must weigh against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). I. The Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), sets forth VA's duties to notify and assist a claimant in substantiating a claim for VA benefits. The VCAA was codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, and the implementing VA regulations are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). See also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Ideally, this notice should be provided prior to an initial decision on a claim by the AOJ, which, as mentioned, in this particular instance is the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if this notice was not provided prior to initially adjudicating the claim or, if provided, it was inadequate or incomplete, this timing error in the provision of the notice is "cured," and therefore harmless, by providing a fully compliant VCAA notification letter followed by readjudication of the claim, such as through issuing a statement of the case (SOC) or supplemental SOC (SSOC), after the claimant has had an opportunity to submit additional evidence in response to the notice such that the intended purpose of the notice is still served and he is allowed to participate effectively in the adjudication of his claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006). In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the U. S. Supreme Court made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, instead, must be judged on an individual case-by-case basis. Moreover, as the pleading party attacking the agency's decision, the Veteran, not VA, has this burden of proof of not only establishing error but also, above and beyond that, of showing how it is unduly prejudicial, meaning outcome determinative of his claim. Here, prior to the initial rating decision in this matter, a July 2004 letter informed the Veteran of the requirements for establishing his entitlement to a TDIU, gave examples of the types of evidence he could submit in support of this claim, and apprised him of his and VA's respective responsibilities in obtaining relevant records and other evidence on his behalf that might tend to support this claim. Therefore, the duty to notify has been satisfied. VA's duty to assist under the VCAA includes helping the claimant to obtain potentially relevant records, including service treatment records (STRs) and other pertinent records of evaluation and treatment since service, as well as providing an examination or obtaining a medical opinion when needed to make a decision on the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Veteran's STRs, VA medical records, and Social Security Administration (SSA) records are in the claims file. Private medical records he identified also have been obtained and associated with the file to the extent available. He has not identified any other outstanding records that he wanted VA to obtain or that he believed were relevant to this claim. Accordingly, the duty to assist has been satisfied with respect to obtaining relevant records on his behalf. See 38 C.F.R. § 3.159(c). The duty to assist also, as mentioned, includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). However, unless the claimant challenges the adequacy of the examination or opinion, the Board may assume that the examination report and opinion are adequate and need not affirmatively establish the adequacy of the examination report or the competence of the examiner. Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that although the Board is required to consider issues independently raised by the evidence of record, the Board is still "entitled to assume" the competency of a VA examiner and the adequacy of a VA opinion without "demonstrating why the medical examiners' reports were competent and sufficiently informed"); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged). But even when this is challenged, the Board may assume the competency of any VA medical examiner as long as, under 38 C.F.R. § 3.159(a)(1), the examiner is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. See Cox v. Nicholson, 20 Vet. App. 563 (2007). Here, appropriate VA examinations addressing the Veteran's diabetes, kidney disorder, hearing loss and tinnitus, dizziness, and erectile dysfunction were performed in May 2005, June 2005, December 2008, April 2012, and July 2012. The VA examination reports are adequate for the purpose of deciding whether he is entitled to a TDIU. In this regard, the examiners reviewed the claims file and his medical history, examined him, and recorded their clinical findings, and the opinions stated are consistent with their findings and the other competent and credible evidence of record. See Monzingo v Shinseki, 26 Vet. App. 97, 107 (2012) (holding that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion" even when the rationale does not explicitly "lay out the examiner's journey from the facts to a conclusion" ) (citing Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that the law imposes no reasons-or-bases requirement on examiners)); see also D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (holding that an examination is adequate when it is based on consideration of the claimant's medical history and describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). There are no significant inconsistencies or ambiguities in the examination reports, and no evidence putting into question the competency of the examiners or the adequacy of their findings. See Sickels, 643 F.3d at 1365-66; Rizzo, 580 F.3d at 1290-1291. Accordingly, VA's duty to assist with respect to obtaining a VA examination and opinion has been met. See 38 C.F.R. §§ 3.159(c)(4); 3.326(a); McLendon, 20 Vet. App. at 83; Barr, 21 Vet. App. at 312. In sum, VA's duties to notify and assist under the VCAA have been satisfied. The Veteran has had ample opportunity to participate effectively in the development of this claim. See Arneson v. Shinseki, 24 Vet. App. 379, 389 (2011) (citing Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that any error depriving a claimant of "a meaningful opportunity to participate effectively in the processing of his or her claim . . . . must be considered prejudicial")). Any defect in the notice or assistance provided did not affect the outcome of this claim or compromise the "essential fairness of the adjudication," and no such defect has been shown. See Mayfield v. Nicholson, 19 Vet. App. 103, 116 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, any error in the notice or assistance provided was harmless, and no prejudice exists. See Shinseki v. Sanders 556 U.S. 396, 407, 410 (2009) (holding that the "rule of prejudicial error" requires a case-by-case determination as to whether the error in question was harmless, and that it is the burden of the claimant to show that the error was harmful by at least providing an explanation as to how the error caused harm); see also 38 U.S.C.A. § 7261(b)(2) (West 2002). Accordingly, the Board may proceed with appellate review of this TDIU claim. The Board's prior remand directives to refer this case to the Director the Compensation and Pension Service for extra-schedular consideration, to obtain the Veteran's SSA records, and to grant entitlement to a 30 percent rating for dizziness and a higher rating for a kidney disorder in light of the Board's discussion its August 2009 decision, have been accomplished. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). II. Analysis The Veteran alleges that his service-connected disabilities render him unemployable and, therefore, entitled to a TDIU. Total disability ratings for compensation may be assigned, where the schedular rating is less than 100 percent, 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 one or more service-connected disabilities without regard to advancing age or disabilities that have not been service connected. See 38 C.F.R. §§ 3.341(a), 4.16(a). Total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 4.15; see also 38 C.F.R. § 3.340(a) (providing that to establish entitlement to a TDIU, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation). Substantially gainful employment is defined as work that is more than marginal and that permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). In Faust v. West, 13 Vet. App. 342 (2000), the Court defined substantially gainful employment as "an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income." Under VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), "substantially gainful employment," is defined as "that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." In determining entitlement to a TDIU, the central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to cause unemployability, without regard to advancing age or disabilities for which service connection has not been established. See 38 C.F.R. §§ 3.341(a), 4.16(a); Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In a pertinent precedent decision, VA's General Counsel concluded that the controlling VA regulations generally provide that Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. VAOPGCPREC 75-91. Thus, the criteria include a subjective (not just objective) standard. See id. VA's General Counsel further observed that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. Id. Importantly, requiring a Veteran to prove 100 percent or total unemployability is different from requiring proof that he cannot obtain or maintain "substantially gainful employment." See Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The use of the word "substantially" suggests intent to impart flexibility into a determination of overall employability, whereas a requirement that he prove 100-percent unemployability leaves no flexibility. See id. Moreover, in Friscia v. Brown, 7 Vet. App. 294, 297 (1994), the Court held that the Board may not reject a TDIU claim without producing evidence, as distinguished from mere conjecture, showing the Veteran can perform work that would produce sufficient income to be other than marginal. At the same time, the mere fact that a claimant is unemployed or has difficulty obtaining employment is insufficient reason to find that he is unemployable. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment, as VA's rating schedule is already designed to take into consideration impairment that renders it difficult to obtain and keep employment. Id.; see also 38 C.F.R. §§ 4.1, 4.15 (2012). In order to satisfy the criteria for schedular consideration of entitlement to a TDIU, if unemployability is the result of only one service-connected disability, this disability must be ratable at 60 percent or more. See 38 C.F.R. § 4.16(a). If it is the result of two or more service-connected disabilities, at least one must be ratable at 40 percent or more, with the others sufficient to bring the combined rating to 70 percent or more. Id. Disabilities of one or both upper extremities or one or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or a single accident, disabilities affecting a single body system such as orthopedic disabilities, multiple injuries incurred in action, or multiple disabilities incurred as a prisoner of war will be considered as one disability for purposes of determining whether the Veteran satisfies these threshold minimum rating requirements. Id. Here, service connection is currently established for the following disabilities: Dizziness associated with diabetes, rated as 30-percent disabling since July 2004; kidney stones rated as 10-percent disabling since November 2003 and 30-percent disabling since December 2005; bilateral hearing loss rated as noncompensable (0-percent disabling) from November 2003, and as 30-percent disabling since January 2010; diabetes, rated as 20-percent disabling since June 2004; tinnitus rated as 10-percent disabling since July 2004; and erectile dysfunction rated as noncompensable since October 2004. The Veteran had a combined total rating of 60 percent from July 2004, of 70 percent from December 2005, and of 80 percent since January 2010. His dizziness and diabetes, among some of the other disabilities mentioned, stem from the same etiology and, thus, are considered one disability with a combined evaluation of 40 percent since July 2004. See 38 C.F.R. § 4.25 (2012). Likewise, his hearing loss and tinnitus share the same etiology and have a combined rating of 40 percent since January 2010. Moreover, his total combined rating for all his service-connected disabilities has been 70 percent since December 2005. Thus, the minimum evaluations for schedular consideration of entitlement to a TDIU, namely, one disability rated as at least 40 percent disabling and a total combined rating of at least 70 percent have been satisfied since December 2005. See 38 C.F.R. § 4.16(a). The schedular requirements for TDIU consideration were not satisfied prior to December 2005, as the total combined rating for his service-connected disabilities was not 70 percent or higher at that earlier point in time. Indeed, it was unclear at earlier stages of this appeal whether the schedular criteria would be satisfied. It nonetheless is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Rating boards will refer to the Director of the Compensation and Pension Service for extra-schedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). Because the Veteran did not meet the schedular requirements for TDIU consideration for the entire period on appeal, the issue of entitlement to a TDIU on an extra-schedular basis was referred to the Director of the Compensation and Pension Service since the Board may not assign an extra-schedular rating in the first instance, although it must specifically adjudicate whether to refer a case for extra-schedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). The Director issued an opinion in October 2012 denying extra-schedular entitlement. Accordingly, entitlement to a TDIU on both a schedular and extra-schedular basis is being considered. According to information provided by the Veteran's former employer in October 2004 (on VA Form 21-4192), the Veteran worked there from July 1971 to August 2003 as a chemical processor. The employer stated the Veteran voluntarily took early retirement and had not taken medical leave in the last twelve months. The Veteran similarly indicated in his July 2004 application for a TDIU (on VA Form 21-8940), that he had worked full time for the same company from July 1971 to August 2003 as a "chemical operator." However, he stated that he left his job due to disability. On the margin of the form he listed several conditions, namely, depression, chronic fatigue, gout, high blood pressure, dizziness, tinnitus, shortness of breath, severe cramps and sweating with any type of exertion, and the need to wear a nitroglycerin patch daily. In other words, he suggested that he had stopped working on account of these conditions. Among the listed conditions, service connection has been established for the dizziness and tinnitus or ringing in his ears, but not for any of the several other disorders he mentioned. The evidence on the whole weighs against finding that his service-connected disabilities are sufficiently incapacitating to prevent him from reentering the workforce and obtaining or maintaining substantially gainful employment based on his previous vocational attainment, prior work experience and training, and level of education. Specifically, a January 2004 VA Agent Orange examination report reflects that he reported episodes of dizziness, but denied ever fainting or falling due to such episodes. He further reported having four episodes of kidney stones in the last few years. An April 2004 VA genitourinary examination report reflects that pain associated with kidney stones resolved in minutes-to-hours depending on how long it took to pass the stone. He also reported experiencing multiple episodes of hematuria and flank pain radiating down into his groin area. During an April 2004 VA audiological examination, he reported significant difficulty hearing and understanding conversation unless he watched the speaker's face. Based on audiological testing, the examiner diagnosed normal-to-severe sensorineural hearing loss in the right ear, and normal-to-profound sensorineural hearing loss in the left ear. A May 2004 VA treatment record shows he reported severe and transient vertigo that occurred about once or twice a day. He described it as a sensation that he was moving and associated it with swings in his blood sugar, so as a complication of his diabetes. When his blood sugar was stabilized, he had less trouble with vertigo. During a December 2004 private psychological evaluation conducted as part of his claim for SSA disability benefits, he reported constant pain related to his back and legs. He stated that he could neither sit nor stand for more than fifteen minutes without the pain worsening. He also reported dizziness related to blood pressure. With regards to the pain, he stated that it began about three years earlier and had progressively worsened. The pain became so severe that, by February 2003, it was interfering with his work, according to him. He stated that his job involved supervising twenty people in a chemical plant and that he had to move from one work station to another and "couldn't keep up." He retired in July 2003 without ever telling his employer what was wrong. A January 2005 VA treatment record reflects that he reported dizzy spells when he gets up. A May 2005 VA diabetes examination report shows he reported renal stones twice a year. After examining him and reviewing the medical records, the examiner diagnosed Type II Diabetes Mellitus, erectile dysfunction associated with diabetes, dyspnea on exertion associated with "marked obesity," dizziness related to diabetes which was "only present when his blood sugar is elevated" (based on the history reported in the May 2004 VA treatment record), and other conditions for which service connection has not been established, including peripheral neuropathy and hypertension. With regards to the Veteran's occupational history, the examiner observed the Veteran had worked as a chemical operator and that his job "consisted primarily of 'pushing buttons.'" In other words, "[N]o heavy lifting or exertion was required." However, at the facility where he had worked, he had to climb stairs to get to his work station. He reported that climbing the stairs made him feel dizzy and "like his chest would 'burst open.'" He reported that he retired from the company where he had worked for thirty-three years because of his medical problems. The examiner however opined that the Veteran could work in a more sedentary setting, although this may require some vocational rehabilitation or retraining. Indeed, the examiner noted the Veteran could perform the same type of work he did before if there were no stairs to climb to get to his work station. The March 2005 SSA disability determination shows he was granted SSA disability benefits effective September 2004 with a primary diagnosis of hepatitis and a secondary diagnosis of obesity. Neither of these disabilities has been determined to be service connected. The accompanying decision states that he had claimed in his application that he was no longer able to work due to chronic fatigue, hepatitis, diabetes, gout, and hearing loss. He also had alleged being further limited by shortness of breath and chest pain. SSA found that his "residual functional capacity" was limited to "a light level of exertion." In this regard, he was unable to lift and carry more than 10 pounds frequently and 20 pounds occasionally. He was able to stand and walk for six hours out of an eight-hour day. He had an 8th grade education and his past relevant work consisted of being a chemical plant operator. The SSA decision states that, according to the Dictionary of Occupational Titles, his position involved work at a medium exertional level, which was a greater exertional level than contemplated by his current residual functional capacity. Thus, SSA found that he was unable to return to his past relevant work. SSA further found that, when considering his age, educational level, and past work skills, he did not have the skills that would be transferable to another occupation. In an earlier July 2004 SSA report, however, it was found that he could still work as a laundry worker, golf range attendant, and press operator. Nevertheless, SSA reconsidered his claim in March 2005 and found that his significant difficulties with chest pain, fatigue, shortness of breath, and significant obesity limited him to light as opposed to medium work. It therefore granted disability benefits after taking into account these additional impairments, none of which though have been determined attributable to service-connected disability. During a December 2008 VA genitourinary examination, he reported experiencing dizziness along with shortness of breath when he had to climb approximately four to five flights of stairs as part of his job, and that he retired due to his inability to climb these stairs. He continued to experience recurrent dizziness when he got up quickly, but stated that it also passed quickly. He did not otherwise experience dizziness except when he hyperventilated. He denied syncope or treatment for dizziness. He denied symptoms of lightheadedness. During a December 2008 VA audiological examination (the report of which was issued in January 2009), he described his dizziness as a feeling of being about to pass out. He reported experiencing this symptom "[a]lmost all the time." He further stated that he had this symptom "sometimes when he gets up really fast." He stated these dizzy spells sometimes brought him to his knees or caused him to stagger. With regard to hearing loss, he stated that it made it "hard to think." In the April 2012 VA diabetes examination report, the examiner found that the Veteran did not have any medically recognized complications of diabetes, which was managed with oral hypoglycemic medication. It was not manifested by loss of strength or weight. The examiner concluded that it did not impact the Veteran's ability to work. During the April 2012 VA kidney conditions examination, the Veteran reported having renal colic at least once a year. The last time was six or seven months prior to the examination. He did not always pass a stone with each attack. He did not take continuous medication and did not have renal dysfunction. The examiner concluded the Veteran's kidney condition did not impact his ability to work. During the July 2012 VA audiological examination, the Veteran reported not being able to work because of dizziness. In the October 2012 opinion regarding entitlement to a TDIU on an extra-schedular basis, the Director of the Compensation and Pension Service reviewed the pertinent evidence discussed above and observed there were no medical opinions indicating the Veteran was unemployable due to service-connected disabilities. The Director noted that the Veteran's SSA records did not address his service-connected disabilities but rather nonservice-connected conditions. The Director also noted that the Veteran had not been hospitalized for any significant period of time due to his service-connected disabilities (frequent hospitalization is a consideration for extra-schedular entitlement under 38 C.F.R. § 3.321(b)(1), though not also under § 4.16(b)). The Director found that the evidence did not show the Veteran's service-connected disabilities were so exceptional or unusual as to render the use of the regular rating schedule standards impractical. The Director concluded that the totality of the evidence did not show the Veteran would be unemployable in all environments, including a sedentary one, solely due to service-connected disabilities. Therefore, entitlement to a TDIU on an extra-schedular basis under 38 C.F.R. § 4.16(b) and 38 C.F.R. § 3.321(b)(1) was denied. The Veterans Court (CAVC) has recognized that "the effect of a service-connected disability appears to be measured differently for purposes of extra-schedular consideration under 38 C.F.R. § 3.321(b)(1) . . . and for purposes of a TDIU claim under 38 C.F.R. § 4.16." See Kellar v. Brown, 6 Vet. App. 157, 162 (1994). The former requires marked interference with employment; whereas the latter requires evidence of unemployability. Id.; see also Thun v. Peake, 22 Vet. App. 111 (2008) ("[E]xtraschedular consideration [under § 3.321] may be warranted for disabilities that present a loss of earning capacity that is less severe than one where the Veteran is totally unemployable.") The Veteran also has submitted a number of articles and other statements by him and his spouse. These articles and statements mostly concern whether he has other disabilities related to his military service and, therefore, are not directly relevant to the issue of his entitlement to a TDIU because only adjudicated service-connected disabilities are considered in this determination. To the extent the articles apply to his adjudicated service-connected disabilities, they do not constitute clinical findings as to his physical impairment and thus are not relevant to the issue of whether his service-connected disabilities are sufficiently disabling as to prevent him from engaging in substantially gainful employment. The preponderance of the evidence weighs against a finding that he is unable to obtain or maintain substantially gainful employment due to his service-connected disabilities alone. The award of SSA disability benefits was based on his nonservice-connected hepatitis C and obesity. The reconsideration decision also reflects that SSA took into account his chest pain, fatigue, and shortness of breath in finding him limited to light work only as opposed to medium work. There is no indication that SSA would have found him to be limited to light work when only taking into account his service-connected disabilities. The decision of an administrative law judge at the SSA cannot be ignored and, to the extent its conclusions are not accepted, reasons or bases must be given in support of this finding. Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992); Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). At the same time, while an SSA disability determination is relevant to the issue of entitlement to a TDIU, such a determination is not controlling on VA because these two Federal agencies have different disability requirements. See Odiorne v. Principi, 3 Vet. App. 456, 461 (1992). Because the SSA disability determination and discussion clearly show it was only the Veteran's nonservice-connected disabilities that factored into its grant of disability benefits, the decision is of little probative value and carries little weight in this decision as to whether he is entitled to a TDIU according to VA's standards. Indeed, the fact that SSA only found his nonservice-connected conditions to be disabling tends to weigh against finding that his service-connected disabilities prevent him from engaging in substantially gainful activity. His assertion that his dizziness has a significant impact on his ability to work is also not credible given the inconsistencies in his statements. In the May 2004 VA treatment record, which is dated after his retirement, he stated that he had severe and transient vertigo that occurred only twice a day in relation to changes in his blood sugar. He did not report that it occurred as a result of climbing stairs or similar exertion. Likewise, at his December 2008 VA genitourinary examination, he reported recurrent dizziness when he got up quickly, but also acknowledged that it resolved or passed quickly. He denied otherwise experiencing dizziness except when he hyperventilated. He denied syncope or treatment for dizziness. He denied symptoms of lightheadedness. This reported history is completely at odds with his statements during his December 2008 VA audiological examination the same month, asserting that he experienced dizziness "almost all the time" and that it brought him to his knees or caused him to stagger. Moreover, while he reported not being able to work because of dizziness during his more recent July 2012 VA audiological examination, the SSA decision states that he reported being unable to work due to chronic fatigue, hepatitis, diabetes, gout, and hearing loss. He did not allege that his dizziness had impacted his ability to work, although he would have had every incentive to make such an assertion in support of a claim for disability benefits had it in fact been the case. Indeed, during his December 2004 private psychological evaluation, he stated that it was his chronic physical pain that had led to his early retirement, noting that his duties as a manager had required him to move from one work station to the next and that he "couldn't keep up." He did not state that his dizziness had played any significant role in this regard. Accordingly, while he is competent to describe experiencing dizziness and the resulting functional impairment, the Board does not find his claims credible that it occurs other than on an intermittent basis associated with standing up quickly or abrupt changes in his blood sugar. See Caluza, 7 Vet. App. at 511 (holding that when determining whether lay evidence is satisfactory, the Board may properly consider, among other things, its consistency with other evidence submitted on behalf of the Veteran); Madden v. Gober, 125 F.3d 1477, 1480 (Fed. Cir. 1997) (observing that "lay evidence which is in fundamental conflict with other lay evidence and is, for that reason, found not credible in a given case, is surely suspect."). Further in this regard, statements that he made for purposes of treatment in the May 2004 VA treatment record are more probative than statements he later made in support of a claim for VA compensation benefits. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant); see also White v. Illinois, 502 U.S. 346, 356, 112 S. Ct. 736 (1992) (statements made for the purpose of medical diagnosis or treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive a proper diagnosis or treatment); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that, although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision). Thus, the Board does not find that his dizziness significantly impacts his ability to work in a sedentary capacity, as the credible evidence shows that it mostly impacts him when standing up abruptly and relation to sudden changes in the level of his blood sugar. Consequently, while he may have had trouble walking up four flights of stairs at his prior job, in part due to dizziness (although nonservice-connected obesity, chest pain, and exertional limitations also seemingly played a large role), the most competent and credible, and therefore probative, evidence indicates his service-connected disabilities are not so severe as to prevent him from engaging in his prior line of employment or other employment in a sedentary capacity. In this regard, apart from the dizziness, his diabetes has not resulted in any other compensable complications. He has not stated and there is no evidence otherwise suggesting that his diabetes has resulted in occupational impairment. Indeed, in the April 2012 VA diabetes examination report, the VA examiner opined that it did not cause any occupational impairment. Similarly, the Veteran has not stated and the evidence does not otherwise show that his kidney disorder causes any functional impairment. While he has kidney stones or episodes of colic about twice a year, there is no evidence that it otherwise affects him, including in terms of his employability. Thus, for the vast majority of time he has no impairment associated with his service-connected kidney disorder. Indeed, the April 2012 VA examiner found that the Veteran's kidney disorder was not causative of occupational impairment. Although the Veteran's tinnitus is clearly bothersome, the SSA records and VA examination reports and treatment records do not show this condition prevents him from working in a sedentary capacity. Likewise, although his hearing loss limits his ability to converse with others, requiring him to face the speaker and try to read his or her lips, there is no competent or credible evidence showing he is unable to work due to this impairment. He is still able to hold conversations with others, albeit with proper accommodations, including repositioning himself to face the speaker, and his hearing loss would not prevent him from doing any sedentary work that is not dependent on conversing with others in a way that would not allow him to make this accommodation. Finally, there is no evidence that his erectile dysfunction affects his ability to work. In sum, then, his service-connected diabetes, kidney disorder, tinnitus, hearing loss, and erectile dysfunction do not have significant effects on his ability to work in a substantially gainful capacity. To the extent he does have occupational impairment, it is being compensated by the schedular ratings currently assigned for these several service-connected disabilities. See Van Hoose, 4 Vet. App. at 363; 38 C.F.R. §§ 4.1, 4.15. His dizziness also has not been shown by credible evidence to limit his ability to work in a sedentary capacity, although it may affect his ability to work in a job requiring much movement or walking up and down stairs. Thus, the most probative evidence shows that his service-connected disabilities, whether considered singly or in combination, do not prevent him from obtaining or maintaining substantially gainful employment versus employment that only would be considered just marginal in comparison. Rather, the most probative evidence of record, including the SSA records, VA treatment records, and VA examination reports, show that it is his hepatitis C, obesity, chest pain, dyspnea on exertion, foot and back pain, and other nonservice-connected conditions that prevent him from working. The Board also has considered his level of education, work history, and vocational attainment and finds that this background does not alter the conclusion that he is able to do sedentary work. In this regard, he indicated during his December 2004 private psychiatric evaluation that he had risen to the level of manager of a team of twenty people. Moreover, although SSA found that his type of employment was generally characterized as involving a moderate level of exertion, his thirty-three year employment as a chemical processor mostly involved sedentary work, namely, "pushing buttons," according to the May 2005 VA diabetes examination report. In other words, evidence specific to his situation, and therefore most probative, shows that he actually worked mostly in a sedentary capacity for the many years he worked in years past. Indeed, the May 2005 VA examiner found that the Veteran would be able to continue his type of work if it did not involve climbing stairs. Moreover, prior to its reconsideration decision, SSA found that he could still work as a laundry worker, golf range attendant, and press operator. It was only after taking into account the nonservice-connected chest pain, fatigue, shortness of breath, and significant obesity that SSA found that he could not return to the type of work involving the exertional requirements of his prior employment. The Board has considered his assertion that he is unable to work due to his service-connected disabilities, even if only considering these disabilities. However, while he is competent to describe his symptoms and their effect on his occupational functioning, the Board accords more weight to the findings of the VA examiners who evaluated him and found that his service-connected disabilities do not prevent him from engaging in substantially gainful employment. These VA examiners are medical professionals who have the expertise to make a more accurate clinical assessment as to the actual impact of his service-connected disabilities on his employability. As a layman, he does not have such medical expertise, and therefore his opinion has less probative value and is accorded less weight than the findings of the VA examiners. See Madden, 125 F.3d at 1481 (holding that the Board has the "authority to discount the weight and probity of evidence in the light of its own inherent characteristics in its relationship to other items of evidence"); King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue in question). Moreover, as discussed above, the Board also does not find his lay statements to be credible insofar as he asserts that his dizziness is so severe as to prevent him from working entirely. Accordingly, the preponderance of the evidence is against entitlement to a TDIU. Consequently, the benefit-of-the-doubt rule does not apply, and this claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102; 4.3; Gilbert, 1 Vet. App. at 55. The Director of the Compensation and Pension Service also denied entitlement to a TDIU on an extra-schedular basis in the October 2012 decision, and so, too, is the Board for the reasons and bases discussed. ORDER The claim of entitlement to a TDIU is denied. ____________________________________________ Keith W. Allen Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs