Citation Nr: 1315402 Decision Date: 05/09/13 Archive Date: 05/15/13 DOCKET NO. 09-41 671 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. M. Gillett, Counsel INTRODUCTION The Veteran had active military service from June 1945 to February 1947 and from September 1951 to July 1953, so during World War II and the Korean Conflict. This appeal to the Board of Veterans' Appeals (Board) is from a January 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2012, as support for his claim, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) of the Board. In January 2013, the Board remanded this claim to the RO via the Appeals Management Center (AMC) for a medical opinion regarding whether the Veteran's service-connected disabilities in combination, so in the aggregate not individually or piecemeal, are so disabling as to preclude him from obtaining and maintaining substantially gainful employment. The prior medical opinions that had been obtained in April 2012 only had commented on the effect of the disabilities compartmentally on his employability. So this additional medical comment was needed before deciding this claim on appeal. The designated VA examiner provided this requested additional medical opinion in February 2013; he also later reaffirmed in April 2013 that he had reviewed the claims file in providing his additional medical opinion. So there was compliance with this remand directive in terms of obtaining this necessary additional medical comment. 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 the Board a concomitant duty to ensure compliance with the terms of the remand). After considering the opinion, however, the AMC continued to deny the claim in an April 2013 supplemental statement of the case (SSOC), so the claim is again before the Board. Please also note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. During the entire pendency of this appeal, the Veteran's service-connected bilateral hearing loss has been rated as 60-percent disabling, his service-connected posttraumatic stress disorder (PTSD) as 30-percent disabling, his service-connected left foot disability resulting from cold weather injury in service as 20-percent disabling, and his service-connected tinnitus as 10-percent disabling. So his combined rating during the entire pendency of this appeal, when considering all of these disabilities, has been 80 percent. 2. His service-connected disabilities do not preclude him from returning to the workforce and obtaining and maintaining substantially gainful employment. CONCLUSION OF LAW The criteria are not met for a TDIU. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19, 4.25 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Duties to Notify and Assist VA has duties to notify and assist the Veteran in substantiating this claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). To this end, upon receipt of a complete or substantially complete application, VA was required to inform him of any information and medical or lay evidence not of record: (1) that was necessary to substantiate this claim; (2) that VA would obtain and assist him in obtaining; and (3) that he was expected to provide. 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate or incomplete, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the U. S. Supreme Court made clear that 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, the RO sent a letter to the Veteran in August 2007, prior to initially adjudicating this claim in January 2008, therefore in the preferred sequence. The letter apprised him of the type of evidence and information needed to substantiate this claim on its underlying merits and of his and VA's respective responsibilities in obtaining this supporting evidence. The notice letter also provided the general criteria for assigning "downstream" disability ratings and effective dates, which, incidentally, is more so necessary when the claim is for service connection, not instead predicated on the notion that disabilities already determined to be service connected render the Veteran unemployable. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). In any event, the letter provided specific information regarding substantiating a TDIU claim, which, in essence, is an increased-rating claim. See Mayhue v. Shinseki, 24 Vet. App. 273 (2011) (reasoning that a request for a TDIU is not a separate claim for benefits, rather, an attempt to obtain an appropriate rating for a service-connected disability or disabilities). As such, this TDIU claim requires the type of notice contemplated by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009), which overturned the lower Court's holding in Vazquez-Flores v. Peake, 22 Vet. App. 37, 48 (2008), and indicated VA need only provide "generic" notice and not identify potentially alternative diagnostic codes for rating the service-connected disabilities or solicit daily-life evidence. VA also fulfilled its duty to assist the Veteran with this claim by obtaining all potentially relevant evidence, which is obtainable, and therefore appellate review of this claim may proceed without prejudicing him. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993). To this end, the RO obtained procurable VA outpatient records. Further concerning the duty to assist, VA medical examinations were provided to determine the severity of his individual service-connected disabilities in August 2007 and April 2012. And, as already alluded to, in compliance with the Board's January 2013 remand requests, the AMC also obtained an additional medical opinion in February 2013 and an April 2013 addendum regarding whether the Veteran's service-connected disabilities, in combination, preclude him from obtaining and maintaining employment that could be considered substantially gainful and not just marginal. As the Court stated in Friscia v. Brown, 7 Vet. App. 294, 297 (1994), and as the Board pointed out and acknowledged when remanding this claim, the Board may not reject a claim for a TDIU without producing evidence, as distinguished from mere conjecture, showing the Veteran can perform work that would produce sufficient income to be other than marginal. See, too, Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). The VA medical opinion and addendum concerning this determinative issue were obtained following and as a result of the Board's January 2013 remand, and they are responsive to this decisive issue of employability, so there was compliance with this remand directive, certainly substantial compliance. See 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). Regarding the videoconference hearing the Veteran had before the Board in November 2012, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ chairing a hearing fulfill two duties to comply with this VA regulation. These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. Here, during the November 2011 videoconference hearing, the presiding VLJ specifically noted the issue on appeal. Then, having heard the Veteran's testimony, so in response to it, the presiding VLJ sought to identify any pertinent evidence not then currently of record that might have been overlooked or was outstanding and, in turn, might tend to substantiate this claim. Both the presiding VLJ and the Veteran's representative specifically queried the Veteran regarding any medical evidence, including a doctor's opinion, which might tend to suggest the Veteran could not work because of his service-connected disabilities. Indeed, partially as a result of these inquiries, the presiding VLJ determined that a VA medical opinion was needed to determine whether the Veteran could procure and maintain substantially gainful employment, hence, the reason the Board subsequently remanded this claim in January 2013. So the presiding VLJ complied with the requirements of Bryant and 38 C.F.R. § 3.103(c)(2). In deciding this claim, the Board has reviewed all of the relevant evidence in the Veteran's claims file, both his physical claims file and electronic ("Virtual VA") claims file, also referred to as his e-folder. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by him or obtained on his behalf be discussed in exhaustive detail, so the Board need not specifically address each and every piece of evidence. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "[i]t is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 53. II. Analysis Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability, that is, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). If there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must 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. Individual unemployability must be determined without regard to any non-service connected disabilities or the Veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). If a Veteran does not meet the applicable percentage standards set forth in 38 C.F.R. § 4.16(a), the Board will consider entitlement to a TDIU on an alternative extra-schedular basis if it is shown he is unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). See also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, the Board must evaluate whether there are circumstances in each Veteran's case, apart from any non-service connected conditions and advancing age, which would justify a TDIU. See Van Hoose, 4 Vet. App. at 361; see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). While the regulations do not provide a definition of "substantially gainful employment," VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), defines the term 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." Also, 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...." In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the Court also discussed the meaning of "substantially gainful employment" and noted the following standard announced by the United States Court of Appeals for the Eighth Circuit in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Marginal employment, for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment." 38 C.F.R. § 4.16(a). See also Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). That is, a Veteran may be considered as unemployable upon termination of employment that was provided on account of disability or in which special consideration or accommodation was given on account of the same. See 38 C.F.R. § 4.18. Marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment also may be held to exist on a "facts-found" basis when earned annual income exceeds the poverty threshold. Id. Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop. Id. Along these same lines, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that requiring a veteran to prove that he is 100 percent unemployable is different than requiring he to prove that he cannot maintain substantially gainful employment. The use of the word "substantially" suggests intent to impart flexibility into the determination of his overall employability, whereas a requirement that he prove 100 percent unemployability leaves no flexibility. See Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). That said, to receive a TDIU, the Veteran's service-connected disabilities, alone, must be sufficiently severe to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Court also clarified in Van Hoose, at 363, that the disability rating, itself, is recognition that industrial capabilities are impaired. Indeed, according to 38 C.F.R. § 4.1 (2012), 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. So above and beyond this, the record must reflect some factor that takes a particular case outside the norm in order for a claim for individual unemployability benefits to prevail. As the Court further explained in Van Hoose, the mere fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. The Board must consider the effects of the Veteran's service-connected disabilities in the context of his employment and educational background. See Fluharty v. Derwinski, 2 Vet. App. 409, 412-13 (1992). In Beaty v. Brown, 6 Vet. App. 532, 537 (1994), like in Friscia and Ferraro already cited, the Court indicated the Board cannot deny the Veteran's claim for a TDIU without producing evidence, as distinguished by mere conjecture, that the Veteran can perform work that is substantially gainful versus just marginal. For the entire pendency of this appeal, the Veteran's service-connected bilateral hearing loss has been rated as 60-percent disabling, his service-connected PTSD as 30-percent disabling, his service-connected left foot disability resulting from cold weather injury in service as 20-percent disabling, and his service-connected tinnitus as 10-percent disabling. So his combined rating during the entire pendency of this appeal, when considering all of these disabilities, has been 80 percent. Therefore, his combined rating meets the threshold minimum rating requirements of § 4.16(a) for consideration of a TDIU, that is, without having to resort to the special extra-schedular provisions of § 4.16(b). He has reported having a grade-school education. He has indicated that he retired from 23 years of employment as a truck driver in 1993. When filing his June 2007 claim for a TDIU, he alleged that he had had to leave his former employment due to his service-connected disabilities. However, in a May 2008 statement, he conceded that he did not retire from employment due to his service-connected disabilities. Subsequently, during his November 2012 videoconference hearing before the Board, he acknowledged that he had retired simply because he felt that he had reached a point in his life when he wanted to stop working. Therefore, the Board finds that his initial June 2007 statement, alleging instead that he had retired from his most recent employment because of his service-connected disabilities, is not credible since inconsistent with the other evidence of record, including statements and concessions that even he, himself, later made. See Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd 78 F.3d 604 (Fed. Cir. 1996) (holding that, in weighing credibility of lay evidence, VA may consider such elements as inconsistent statements, internal inconsistency, facial plausibility, and consistency with other evidence of record). Prior to and during the pendency of this appeal, VA provided him VA medical examinations to determine the severity of his service-connected disabilities. In an August 2006 VA medical examination report, provided to determine the nature and etiology of his claimed left foot disability resulting from a cold weather injury during his military service, he reported experiencing dull pain in this foot during periods of cold weather. Upon examination, the VA examiner observed the Veteran's gait and posture were both within normal limits. The VA examiner noted that the left ankle was limited to 20 degrees of dorsiflexion and 45 degrees of plantar flexion. The VA examiner indicated the Veteran experienced no further limitations of motion due to pain, fatigue, weakness, lack of endurance, or incoordination. The VA examiner noted that pulses were intact throughout the foot. The VA examiner noted tenderness of the left plantar surface and forefoot. Moreover, the VA examiner indicated that the temperature of the Veteran's left foot was within normal limits. In a contemporaneous left foot X-ray report, another VA examiner noted minimal diffuse osteoarthritis of the small joints of the digits of the foot and a small plantar heel spur. The VA examiner diagnosed residuals of the cold injury as being nail changes, osteoarthritis-like involvement of the digits, and plantar fasciitis with left heel spur. In an August 2006 VA audiology examination report, the Veteran reported experiencing both tinnitus and profound hearing loss. He indicated that the tinnitus would recur at a frequency of seven times per month. He stated that he was not receiving treatment for either disability and that he did not experience functional impairments due to either disability. After an examination, the VA audiology examiner diagnosed intermittent bilateral tinnitus and severe-to-profound bilateral hearing loss. In a February 2007 VA psychiatric examination report, the Veteran reported being treated at VA only for a nonservice-connected lung disorder, diagnosed as chronic obstructive pulmonary disease (COPD). He indicated that he had developed psychiatric symptomatology, reminiscent of PTSD, since his 1993 retirement. He reported that he experienced difficulty sleeping and had bad dreams about his experiences during the Korean War about three times per month. He indicated that he was able to get about seven hours of sleep per night. He reported that loud noises caused him to startle easily. He stated that he always would sit with his back towards the wall, scanning the scene around him. He indicated that he had performed his former work as a truck driver well, in spite of his PTSD symptomatology because he had mostly worked by himself. He stated that he experienced avoidance symptomatology, such as avoiding thinking, feeling, or conversing about events that he had experienced during the Korean War. He also reported experiencing markedly diminished interest or participation in family activities and feeling estranged and detached from others. He indicated that he experienced severe anger and irritability. He said he was not undergoing psychiatric treatment. After mental status examination, the February 2007 VA psychiatric examiner diagnosed ongoing mild PTSD, a prior history of alcohol abuse (in remission since 1999), and mild dementia consistent with the Veteran's age. The VA examiner noted the Veteran's condition might be impacted by his pulmonary problems, including the required use of oxygen both day and night, apparently referring to the COPD. The VA psychiatric examiner assigned a Global Assessment of Functioning (GAF) score of 60, indicating just relatively moderate symptoms or social and occupational impairment. The VA psychiatric examiner wrote that the Veteran was mentally capable of managing his own benefit payments. The VA psychiatric examiner also found that the Veteran was able to take care of his activities of daily living, even though he tended to isolate himself and withdraw from others. The VA psychiatric examiner noted that the Veteran drove himself to the appointment. The VA psychiatric examiner indicated the Veteran had significant difficulties relating to others on a social basis in an appropriate manner due to his PTSD. The VA psychiatric examiner reported that the Veteran could understand commands given to him without difficulty, even though he had some memory problems likely related to his age. In an August 2007 VA audiology examination report, the Veteran reported that he would have to ask others to repeat things they said due to his service-connected bilateral hearing loss. After examination, the VA audiology examiner diagnosed bilateral hearing loss. The VA audiology examiner found that the Veteran needed to wear hearing aids in order to function adequately in his daily activities. In a September 2007 VA medical examination report, the Veteran reported experiencing cold and tingling in his left foot, reminiscent of Raynaud's syndrome, since 1951. He stated that these symptoms occurred up to twice per day. He said that, during attacks, he would experience claudication after walking three yards on level ground at two miles per hour. He also reported experiencing calf pain at rest and persistent coldness of the extremities. He indicated as well that he experienced sharp pain in the foot, particularly while standing. On objective physical examination, the September 2007 VA medical examiner noted atrophic skin changes with thin skin, absence of hair, and dystrophic nails on the left foot. The VA examiner found no evidence of persistent coldness, ischemic limb pain at rest, gangrene, deep ischemic ulcer, or Raynaud's syndrome. The VA examiner indicated that both posture and gait were within normal limits. He also noted that the Veteran's left ankle was limited to 15 degrees of dorsiflexion and 40 degrees of plantarflexion due to pain. The VA examiner indicated that joint function would not be additionally limited after repetitive use. The VA examiner noted finding painful motion and tenderness of the left foot, but no edema, disturbed circulation, weakness, or atrophy of musculature. The VA examiner indicated that neurological sensation was decreased in the left foot and toes. The VA examiner indicated there was no edema, abnormal skin texture, or deformity related to the Veteran's service-connected disability. The VA examiner indicated that a left foot X-ray was within normal limits. The VA examiner indicated the Veteran had left foot pain, tingling, numbness, loss of hair, coolness of the left foot, and onychomycosis that severely affected his ambulation and limited his activities of daily living. In an April 2012 VA psychiatric examination report, the Veteran indicated he had not sought any psychiatric treatment and was not taking any medications for a psychiatric disability. The VA psychiatric examiner noted that a 2008 VA social worker's notes he had reviewed indicated mild PTSD symptomatology was consistent with his own examination results. After examination, the VA psychiatric examiner diagnosed PTSD and assigned a GAF score of 65, indicating just some relatively mild symptoms and social and occupational impairment. The VA psychiatric examiner wrote that the Veteran experienced occupational and social impairment due to mild or transient symptoms which decreased work efficiency and decreased ability to perform occupational tasks only during periods of significant stress. In an April 2012 VA audiology examination report, the VA audiology examiner diagnosed bilateral hearing loss and tinnitus. The VA audiology examiner found that the Veteran's tinnitus would not impact the ordinary conditions of daily life, including his ability to work. The VA audiology examiner also found that the Veteran's bilateral hearing loss would impact the ordinary conditions of daily life, including his ability to work, due to difficulty hearing others on the telephone and difficulty understanding conversation in areas with background noise. In an April 2012 VA medical examination report, the Veteran reported experiencing numbness, tingling, and burning pain with excessive sweating in his left foot. Upon examination, the VA examiner noted cold sensitivity, hyperhidrosis, numbness, locally impaired sensation, and nail abnormalities of the left foot. The VA examiner indicated the Veteran did not use any assistive devices to ambulate. Having examined the Veteran, the VA examiner found that the Veteran's cold injury disability, specifically his left foot disability, would not have any impact upon his ability to work. By contrast, having reviewed the entire claims file, the VA examiner found that the Veteran's COPD would make it severely difficult for him to obtain and maintain gainful physical and sedentary employment due to shortness of breath and fatigue related to his COPD, which tended to increase with his physical activity. During his November 2012 videoconference hearing before the Board, the Veteran testified that he would not be able to work due to his hearing loss because he had great difficulty hearing people. He said that he could use the telephone, but only when using his hearing aid. He also reported being unable to stand or shop for long due to his left foot disability. He also indicated that his PTSD caused him to seek to avoid crowds and to startle easily. In the February 2013 VA medical opinion since obtained on remand, a VA clinician noted that, having reviewed the April 2012 VA audiology examination report, he found that the Veteran's service-connected bilateral hearing loss and tinnitus would prevent him from working in areas where loud noises were present without adequate hearing protection or working in any jobs requiring acute hearing. Having reviewed the April 2012 VA psychiatric examination report, he found that the Veteran's PTSD would cause some occupational and social impairment, resulting in decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. This VA clinician further noted that the Veteran was not seeking any treatment through counselling and medication for his PTSD. In addition, this VA clinician indicated the Veteran's cold injury to the left foot would require him to wear appropriate clothing and to work mostly in warm climates. But viewing these findings in their entirety, this VA clinician found that the Veteran's service-connected disabilities, taken individually and collectively, would not render him unable to secure or maintain substantially gainful physical or sedentary employment. In an April 2013 addendum to the February 2013 VA medical opinion, this VA clinician noted that, although he did not mention it in the February 2013 VA medical opinion, he had reviewed the entire claims file prior to writing that opinion. This VA clinician also indicated that he had reviewed the claims file again that day, referring to the day of his additional (supplemental) comment. He did not make any notation indicating that the opinion contained in the February 2013 VA medical opinion had changed after his second review of the file. Indeed, to the contrary, he apparently continued to espouse this same opinion. Having reviewed the evidence, both lay and medical, the Board finds that the evidence weighs against the Veteran's claim for a TDIU. He was fully employed until 1993. He has not submitted any financial information suggesting his income level until that date was insufficient for him to be considered gainfully employed. Other than general statements regarding the effects of his medical condition, he has not submitted any specific evidence indicating that any return to employment would only be at a job below poverty level or similar or, even if above poverty level, in a family business or other sheltered environment that, in turn, would only be tantamount to marginal employment. Various VA examiners have determined during the pendency of this appeal that his service-connected disabilities would cause some difficulty with his activities of daily living. For example, in the February 2007 VA psychiatric examination report, the February 2007 VA psychiatric examiner indicated the Veteran would have significant difficulties relating to others on a social basis in an appropriate manner due to his PTSD. In the August 2007 VA audiology examination report, the VA audiology examiner found that the Veteran would need to wear hearing aids in order to function adequately in his daily activities. But the ratings for these service-connected disabilities all but acknowledge as much. 38 C.F.R. § 4.1. Yet, despite these notations indicating these service-connected disabilities would affect his activities of daily living, the February 2007 VA psychiatric examiner and the August 2007 VA audiology examiner ultimately made no findings indicating that the Veteran's service-connected disabilities, separately or collectively, would altogether preclude him from obtaining and maintaining substantially gainful employment. Regarding the left foot injury, in the September 2007 VA medical examination report, the September 2007 VA medical examiner indicated the Veteran's disability was manifested by left foot pain, tingling, numbness, loss of hair, coolness of the left foot, and onychomycosis that severely affected his ambulation and limited his activities of daily living. But the September 2007 VA medical examiner's findings, indicating the Veteran's left foot disability would cause severe effects on his ambulation, are somewhat inconsistent with the objective findings in the September 2007 VA medical examination report. Specifically, the September 2007 VA examiner noted that the Veteran's gait was normal on report. In addition, a September 2007 X-ray report, performed the day after that VA medical examination, indicated no acute bony abnormality of the left foot, further undermining any rationale for a limitation upon ambulation. Moreover, the September 2007 VA examiner's findings, indicating severe limitation of activities due to the Veteran's left foot disability, are inconsistent with the findings of both the August 2006 and April 2012 VA examiners, neither of whom indicated finding that the Veteran's left foot disability would limit his activities of daily living. In addition, the September 2007 VA examiner did not write the September 2007 VA medical examination report after a review of the entire claims file. By contrast, the February 2013 VA clinician, having reviewed the entire claims file, determined that the Veteran's left foot disability would result only in a need to wear appropriate clothing and work in warm office environments. This type of constraint is not necessarily limited to this particular Veteran. Therefore, the Board finds that the September 2007 VA examiner's findings, indicating the Veteran's left foot disability severely affected his ambulation and limited his activities of daily living, are of less probative value than those of the August 2006 and April 2012 VA examiners and the February 2013 VA clinician. Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995); see also Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) (noting that the Board, as part of its duties as fact finder, is to weigh the evidence of record and determine credibility). Having noted all of the limitations that the Veteran's service-connected PTSD, left foot disability, bilateral hearing loss, and tinnitus would have on his employment, the February 2013 VA clinician specifically noted how each of the particular disabilities would or would not affect the Veteran's employability. Having done so, after reviewing all the evidence, the February 2013 VA clinician determined the Veteran's service-connected disabilities, taken separately or collectively, so alone or in combination, would not preclude him from obtaining and maintaining substantially gainful employment. As the February 2013 VA examiner reviewed the claims file and offered an opinion based on his review of the evidence, including recognition of all noted limitations caused by the Veteran's service-connected disabilities, the Board finds that the February 2013 VA examiner's opinion has a lot of probative weight. See Prejean v. West, 13 Vet. App. 444, 448 (2000) (indicating that the Board may determine the probative value of medical opinions based on their detail, the persuasiveness of their opinions, and the physicians' access to a Veteran's medical records). The VA examiner also provided supporting rationale, which is where most of the probative value of a medical opinion is derived; in fact, mere review of the claims file cannot compensate for this. See Neives-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board is mindful of the Veteran's contentions that his service-connected disabilities have caused him to be unable to work. Specifically, in explaining the limitations caused by his service-connected disabilities, he has noted a desire to work away from crowds, difficulty with hearing others, and a difficulty with standing or walking. But, again, the other evidence of record indicates his reports of difficulty with ambulation are not entirely credible as they are inconsistent with the medical evidence of record. See Caluza, 7 Vet. App. at 498. More importantly, the probative medical evidence of record indicates his various service-connected disabilities do not preclude him from obtaining and maintaining employment that could be considered substantially gainful versus just marginal in comparison. Most of the medical opinions that have been obtained on this determinative issue are entirely unfavorable on this critical point. Parenthetically, the Board notes that, in the April 2012 VA medical examination report, the April 2012 VA medical examiner, having reviewed the entire claims file, found that the Veteran's nonservice-connected COPD would make it severely difficult for him to obtain and maintain gainful physical and sedentary employment due to shortness of breath and fatigue. Having reviewed the evidence, the Board notes that, although the Veteran has not required regular treatment for his service-connected disabilities, the record indicates he has undergone extensive treatment for his COPD and its effects. Considering that the April 2012 VA medical examiner's opinion regarding the effects that the Veteran's nonservice-connected COPD would have on his employment prospects is corroborated by the evidence of record, the Board finds it to be both competent and credible, so ultimately probative. See Buchanan, 451 F.3d at 1335 (indicating that the Board may determine the credibility of the evidence). However, as the Veteran's COPD is not a service-connected disability, the April 2012 VA medical examiner's opinion is not evidence tending to substantiate the Veteran's TDIU claim, rather, quite the contrary, is evidence instead tending to refute any notion that he is unemployable because of his service-connected disabilities. As the Court has stated, the record must reflect some factor that takes a particular case outside the norm for a claim for individual unemployability benefits to prevail. Van Hoose, at 363. That a Veteran is unemployed or has difficulty obtaining employment is not enough. Id. Accordingly, the weight of the evidence is against this claim for a TDIU, and the appeal is denied. ORDER The claim of entitlement to a TDIU is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs