Citation Nr: 1317358 Decision Date: 05/28/13 Archive Date: 06/06/13 DOCKET NO. 06-33 290 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Peter J. Meadows, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The Veteran had active military service from March 1967 to May 1971. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2005 and June 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran provided testimony at a hearing that was held at the RO before the undersigned Veterans Law Judge (VLJ) in July 2008. The Board remanded the case for additional development in March 2009. In March 2010, the Board denied entitlement to service connection for a low back disorder and TDIU. The Veteran then filed an appeal to the United States Court of Appeals for Veterans Claims (Court). In January 2011, the Veteran's representative and VA General Counsel filed a Joint Motion for Remand (JMR) regarding the Board's March 2010 decision. The parties agreed that the VLJ who presided over the Veteran's July 2008 hearing did not fully explain the issues or suggest the submission of supporting evidence that may have been overlooked, as required by 38 C.F.R. § 3.103(c)(2) (2012). See Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). It was further agreed that, on remand, the appellant should be afforded the opportunity for a new hearing before the Board. In a January 2011 Order, the Court granted the JMR. During the pendency of the appeal to the Court, the Veteran passed away in July 2010. When the Court became aware of the Veteran's death, it revoked the January 2011 Order, and issued an Order in May 2011 to address whether the appellant would be eligible to substitute for the deceased Veteran in this case. See 38 U.S.C.A. § 5121A (West Supp. 2012). Later that month, the RO determined that the appellant qualified as a proper substituted claimant. In August 2011, the Court substituted the Veteran's surviving spouse as a proper appellant. Subsequently, in October 2011, the Veteran's representative and VA General Counsel filed another JMR that was, in substance, the same as the January 2011 JMR; however, the appellant, rather than the Veteran, was listed in the caption of the case. In a November 2011 Order, the Court granted the new JMR, which vacated the Board's decision and remanded both claims to the Board for compliance with the instructions in the JMR. In May 2012, the appellant's attorney submitted additional evidence in support of the appellant's TDIU claim, along with a waiver of initial RO review of that evidence. 38 C.F.R. § 20.1304(c) (2012). In July 2012, the Board remanded the case to the RO to afford the appellant an opportunity for a "new" Board hearing, as set out in the JMR. In January 2013, the RO notified the appellant and her attorney that the hearing had been scheduled. Later that month, however, the appellant's attorney contacted the Board, indicating that the appellant did not wish to participate in a Board hearing on the issues addressed in the JMR, and that any request for hearing on those issues should be considered withdrawn. See 38 C.F.R. § 20.704(e) (2012). The Board notes that, in addition to the paper claims file, there is an electronic (Virtual VA) file associated with the appellant's claims. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues currently being considered. The Board also notes that, although another issue has been developed for appeal, pursuant to the terms of a VA Form 21-22a (Appointment of Individual as Claimant's Representative) executed by the appellant in November 2011, the representation of the appellant's private attorney is limited to the two issues listed above, on the title page. Accordingly, this decision is limited to those issues. The other issue on appeal will be addressed in a separate decision. FINDINGS OF FACT 1. The Veteran died in July 2010. 2. The preponderance of the evidence shows that a chronic low back disorder was not present during service, there was no continuity of symptoms since service, arthritis of the spine was not manifest within a year after separation from service, and the low back disability present prior to death did not develop as a result of any incident during service. 3. At the time of the Veteran's death, his service-connected disabilities included post-traumatic stress disorder, rated as 50 percent disabling; post-operative residuals of laceration of the right extensor pollicis longus tendon of the right hand, rated as 20 percent disabling; sensory neuropathy of the right (major) hand radial distribution, rated as 20 percent disabling; a right femur fibroma, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; scar, status postoperative residual of right extensor pollicis longus tendon repair right hand, rated as 10 percent disabling; and bilateral sensorineural hearing loss, rated as noncompensably disabling. His combined disability rating was 80 percent. 4. The Veteran completed a high school level education, and had occupational experience as a postal worker, as a manufacturing quality control inspector, as a printing helper, and as a salesman/booking agent. 5. The Veteran's service-connected disabilities did not preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. A low back disability was not incurred in or aggravated by service and arthritis of the spine may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. The criteria for a total rating based on individual unemployability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matter: Duty to Notify and Assist with Evidence In the interest of clarity, the Board will initially discuss whether the claims have been properly developed for appellate review. The Board will then address the claims on their merits, providing relevant VA case law, regulations and statutory provisions, the relevant factual background, and an analysis of its decision. As provided by the Veterans Claims Assistance Act (VCAA), VA has the duty to notify and assist claimants in substantiating claims 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). Proper notice from VA must inform the claimant 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 assist the claimant in obtaining; and (3) that the claimant is expected to provide. See 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). VCAA notice requirements apply to all five elements of a service connection claim: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Further, this notice must include information that a downstream disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id. at 486. Ideally, VCAA 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, notice was not provided or was inadequate, this timing error can be effectively "cured" by providing the necessary VCAA notice and then readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC). In that instance, the intended purpose of the notice is not frustrated and the Veteran is given the opportunity to participate 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). Letters satisfying the VCAA notice requirements under 38 C.F.R. § 3.159(b)(1) were sent to the Veteran in February 2004, May 2005, and July 2005. The letters informed him of the evidence required to substantiate his claims. The letters also notified him of his and VA's respective responsibilities in acquiring supporting evidence. Additionally, a March 2006 letter complied with Dingess by discussing the downstream disability rating and effective date elements of his claims. Dingess v. Nicholson, 19 Vet. App. 473 (2006). As noted in the INTRODUCTION section of this decision, in an Orders issued by the Court in May and October 2011, the Court determined that appellant was qualified to substitute the Veteran, and granted a JMR which afforded the appellant an opportunity to have a new hearing before the Board. In July 2012, the Board remanded the case to the RO to afford the appellant an opportunity for a "new" Board hearing, as set out in the JMR that was approved by the Court. In January 2013, the RO notified the appellant and her attorney that the hearing had been scheduled. Later that month, however, the appellant's attorney contacted the Board, indicating that the appellant did not wish to participate in a Board hearing on the issues addressed in the JMR, and that any request for hearing on those issues should be considered withdrawn. See 38 C.F.R. § 20.704(e) (2012). Thereafter, no additional evidence pertaining to the low back claim was submitted or received. In light of the foregoing, the Board finds that no further action is required to comply with the notice provisions of 38 C.F.R. § 3.103(c)(2). The appellant is currently represented by the same attorney who represented her before the Court. The brief submitted to the Court by the appellant's attorney, and terms of the JMR to which he later agreed, clearly reflect an understanding on the part of the attorney of the basis of the denial of the Veteran's low back disorder claim and, conversely, of the sort of evidence that would be required to substantiate the claim. The appellant and her attorney were given an opportunity to appear at a Board hearing, and to submit additional evidence in support of the low back claim. However, they elected to do neither of those things. The notice deficiencies outlined in the JMR have been essentially cured by the attorney's (and, through the attorney, the appellant's) actual knowledge of the legal and evidentiary issues, together with the opportunity to submit additional evidence. The appellant has been afforded a meaningful opportunity to participate effectively in the processing of her claim, and there is no indication that any risk of prejudice remains. See, e.g., Overton v. Nicholson, 20 Vet. App. 427, 438 (2006) (appellant's representation by counsel "is a factor that must be considered when determining whether that appellant has been prejudiced by any notice error"). Accordingly, no further corrective action is warranted. The Board also finds that VA fulfilled its duty to assist the appellant by obtaining all relevant evidence in support of the claims that is obtainable, and therefore appellate review may proceed without prejudicing her. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993). The RO obtained the Veteran's VA and private treatment records, as well as records from the Social Security Administration, and arranged for VA compensation examinations. The Board acknowledges that a nexus opinion was not obtained regarding the claim for service connection for a back disorder. However, under applicable law, a medical examination and/or opinion is deemed necessary only if, among other things, the information and evidence of record establishes that the veteran suffered an event, injury, or disease in service, or has a disease or symptoms of a disease listed in 38 C.F.R. §§ 3.309, 3.313, 3.316, and 3.317 manifesting during an applicable presumptive period, provided the claimant has the required service or triggering event to qualify for that presumption. 38 C.F.R. § 3.159. Here, the Board finds that such an opinion is not required to resolve the claim in light of the lack of credible evidence of the occurrence of a back injury in service, as well as the multitude of evidence showing onset of a back disorder after service. See discussion, Part I, infra. The Board does not know of any additional relevant evidence that is available but has not been obtained. The Board is therefore satisfied that the RO has provided all assistance required by the VCAA. 38 U.S.C.A. § 5103A. I. Entitlement To Service Connection For A Low Back Disorder. The Veteran contended that he injured his lower back during service. Specifically, during the hearing held in July 2008, he testified that he first injured his back in service in jump school. He said that to practice before jumping out of planes, they jumped off towers, and this resulted in the injury. He also reported hurting it again later when working on a plane. He stated that his supervisor in service would not let him go to sick bay. The Veteran further reported that he had an injury after service in 1975, and this aggravated a back problem which had started in service. When seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. 38 C.F.R. § 3.303(a). Generally, to establish service connection for a claimed disorder, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). If arthritis becomes manifest to a degree of 10 percent or more within one year from the date of a veteran's termination of service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. However, as discussed below, this presumption does not apply in the instant case as arthritis did not manifest to a degree of 10 percent within one year of service discharge. In some cases, service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. However, the United States Court of Appeals for the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, the tinnitus (ringing in the ears) already mentioned, etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The service medical records are negative for documentation of the occurrence of a chronic back disorder in service. A service medical board report dated in March 1971 noted disabilities including a laceration of the right extensor pollicis longus tendon, and fibroma of the right distal femur, but there was no mention of any disorder of the back. The Board notes that if a disabling back injury had been present at that time, it would be expected to have been mentioned in the service medical board report. There is also no evidence of arthritis of the lumbar spine within a year after separation from service. In his claim for disability compensation which he submitted in July 1971, a few months after separation, the Veteran did not make any references to having a back disorder. The report of a VA disability compensation examination conducted in August 1971 is likewise negative for any complaints, findings or diagnoses of a back disorder. The earliest medical records pertaining to the back are from more than four years after separation from service. For example, a private treatment record dated in December 1975 shows that the Veteran was injured in an auto accident in November 1975. The injuries were to the neck and low back. X-rays revealed a possible spondylolisthesis at L5-S1. A private record dated in February 1976 indicates that the Veteran had been asymptomatic until being injured in the auto accident in November 1975. Thus, the records clearly indicate the onset of back problems years after service. The Board also notes that the record reflects the occurrence of a second post service injury to the back. A private treatment record dated in August 1996 reflects that the Veteran injured his back while assisting someone in changing a flat tire. The Veteran reported that a jack slipped and he attempted to grab the car to prevent it from crushing the other man. At that time, the Veteran reportedly experienced an acute painful popping sensation in the upper lumbar back area. The diagnoses included (1) acute compression fracture vertebral body L1; and (2) status post lumbosacral posterior fusion from spondylolisthesis L5-S1. The Veteran did not relate his back problems to service until he submitted a claim in January 2004. He stated that in November 1967 he hurt his back. He stated that a doctor told him that the traffic accident after service aggravated a problem that would have started when he was between the ages of 18 and 22. The Veteran presented written statements from his wife (the appellant) and another individual which indicate that the Veteran injured his back during service. The Board finds that the Veteran's testimony in which he gave a history of having sustained injuries to the back in service followed by chronic symptoms, along with various lay statements which purport to support the testimony, are contradicted by more reliable evidence which is of record. While the Veteran contended that he experienced pain since a back injury in service, the Board finds that there is no credible evidence of continuity of symptomatology. On the contrary, the service medical board report, and the Veteran's original claim and the VA examination shortly after service are all negative for back problems. This weighs against a finding of continuity. The lack of continuity of symptomatology is further demonstrated by the lack of post service treatment until December 1975. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Moreover, the treatment records from 1975 clearly demonstrate that his back problems resulted from post-service injuries. The histories which he gave at that time were presented for the purpose of obtaining medical treatment, and are considered to have a higher level of credibility than later histories presented for the purpose of obtaining monetary benefits. Moreover, the histories presented by the Veteran in 1975 were much closer in time to his period of service and he therefore would have had a better recollection of the factors leading to the development of his back problems. As such, the Board finds that the Veteran's more recent statements and those of others submitted in this case (including the appellant's) are inconsistent and not credible. Therefore, the Board finds that the evidence weighs against a finding of continuity of symptomatology since service. The Board notes that the Veteran contended on his own behalf that his low back difficulties were related to his military service. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but are not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno, 6 Vet. App. at 469-70. Lay evidence may also be competent to establish medical etiology or nexus. Davidson, 581 F.3d at 1316. However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to." Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In the instant case, the Board finds that the question regarding the potential relationship between the Veteran's low back disorder and service to be complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Therefore, while the Veteran was competent to describe events in service and subsequent problems with his low back, neither he nor the appellant, as laypersons, can provide competent medical evidence establishing a connection between the Veteran's low back disorder and service. The fact that the Veteran's own account of the etiology of his disability was recorded in some of the more recent medical reports is not sufficient to support the claim. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995). The Veteran presented a note from a private physician dated in August 2004 which indicates that "Based on the medical history here dating back to 1975 this patient's orthopedic problems are related partially to military duty 1967 to 1971." No explanation for the opinion was provided. A bare conclusory opinion without an explanation of the basis for the opinion is not adequate to support the claim. See Miller v. West, 11 Vet. App. 345, 348 (1998). The Board notes that there is no clinical data or other rationale to support this opinion; nor is there anything otherwise in the record that would give it substance. Therefore, the opinion is essentially unsupported. See Bloom v. West, 12 Vet. App. 185 (1999). Moreover, to the extent that the opinion is based on the history which the Board has rejected, the opinion is rendered inconsequential. An opinion based on an inaccurate history has essentially no probative value. See Kightly v. Brown, 6 Vet. App. 200 (1994). In summary, a clear preponderance of the evidence is against a finding that the Veteran's low back disability is causally related to service. The preponderance of the evidence shows that a chronic low back disorder was not present during service, arthritis of the spine was not manifest within a year after separation from service, and the low back disability present prior to death did not develop as a result of any incident during service. Accordingly, the Board concludes that a low back disability was not incurred in or aggravated by service and arthritis may not be presumed to have been incurred therein. II. Entitlement To A Total Disability Rating Based On Individual Unemployability Due To Service-Connected Disability. The Veteran contended that he was entitled to a total disability rating based on individual unemployability. During the hearing held in July 2008, he testified that he was prevented from working due to his service-connected disabilities. He stated that Social Security Administration told him that he was totally and permanently disabled, but that they denied his claim for disability payments because the application was submitted too late. Service-connected disabilities are rated based primarily upon the average impairment in earning capacity. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). A total rating is also authorized for compensation purposes if the requirements of 38 C.F.R. § 4.16 are met. Pursuant to 38 C.F.R. § 4.16(a), 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. In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's advancing age. 38 C.F.R. § 3.341(a); see 38 C.F.R. § 4.19 (stating that age may not be a factor in evaluating service-connected disability or unemployability). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). At the time of the Veteran's death, his service-connected disabilities included post-traumatic stress disorder, rated as 50 percent disabling; post-operative residuals of laceration of the right extensor pollicis longus tendon of the right hand, rated as 20 percent disabling; sensory neuropathy of the right (major) hand radial distribution, rated as 20 percent disabling; a right femur fibroma, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; a scar, status postoperative residual of right extensor pollicis longus tendon repair of the right hand, rated as 10 percent disabling; and bilateral sensorineural hearing loss, rated as noncompensably disabling. His combined disability rating was 80 percent. The 80 percent rating for his disabilities meets the preliminary percentage criteria of 38 C.F.R. § 4.16(a). In his claim for unemployability benefits, the Veteran reported that he had completed a high school level education, and had occupational experience as a postal worker, as a manufacturing quality control inspector, as a printing helper, and as a salesman/booking agent. The evidence which is of record includes a letter dated in April 2004 from the Veteran's former employer which indicates that the Veteran was a highly productive employee until having an accident in August 1996. The Board notes that a nonservice-connected back injury occurred at that time. The letter does not have any references to service-connected disabilities. There are also multiple medical opinions which show that the service-connected disabilities are not productive of totally disabling impairment. Records from the Social Security Administration reflect that in June 2004 a judge from that organization concluded that the Veteran was not under a disability as defined by the Social Security Act. It was noted that his primary disability was a [nonservice-connected] lumbosacral fusion which was considered to be severe. It was also noted that he had anxiety and depression which were not shown to cause significant limitation in his ability to perform basic work activities. It was found that his allegations regarding his limitations were not totally credible. The Social Security judge concluded that he had the residual functional capacity to perform a wide range of light work. It was further stated that his past relevant work as a booking agent did not require the performance of activities precluded by his residual functional capacity. The Veteran was afforded a VA examination in October 2005. It was noted that he experienced symptoms of pain in the mid area of the right femur. This reportedly caused decreased range of motion of the right knee. The Veteran had a limping gait, but he was able to stand. The pertinent diagnosis was service-connected fibroma right femur. The examiner stated that with respect to the effect of the condition on the Veteran's usual occupation, there would be none except that he could not stand for over five minutes and could not walk for more than 10 feet without using a walker. It was further stated that using a walker, he could not walk for more than five minutes. The same VA examination report also reflects that the Veteran reported increasing symptoms of his post operative residuals of laceration of the right extensor pollicis longus tendon of the right hand. It was noted that he had tenderness of the surgical scar, he could not fully extend the right thumb, he could not make a fist with the right hand, and he had numbness in the web space between the right thumb and right index finger. Regarding the effects of the condition on occupational functioning, the examiner stated that there would be none except that he could not type or work on a computer, and that he would be slower in wrapping a box or nailing something. It would also be harder to write. The report of an audiology examination of the Veteran conducted by the VA in October 2005 reflects that his word recognition scores were 94 percent in the right ear and 98 percent in the left ear. A VA record dated in May 2006 indicates that there was profound sensorineural hearing loss on additional testing, but this was attributed to probable functional overlay. It was noted that the results were inconsistent with previously obtained results, and were not considered to be adequate for rating purposes. The Veteran was afforded a VA PTSD examination in February 2007. The diagnoses included post-traumatic stress disorder, chronic. The examiner assigned a GAF score of 50. It was noted that the Veteran was still employable from a psychiatric standpoint, but that he had quit working in 1996 due to back pain and neuropathy. The report of another VA examination conducted in February 2007 noted that the Veteran was service connection for a right femur fibroma and right hand, forearm postoperative residuals of laceration of the right extensor pollicis longus tendon. The examiner noted that on inspection of the right femur area there was no muscle atrophy, no tenderness, no lesions and no scars. The examiner did not find any abnormality in that area. The examiner noted that on inspection of the right hand, there was a laceration measuring 2.5 centimeters. The scar was healed with some tenderness on deep palpation. There was no muscle loss or tissue loss. The Veteran had difficulty with extension of the right thumb. He also had difficulty making a full fist and full grasp. The examiner noted that, in terms of employability, based on his service connected physical conditions, the Veteran was likely to be able to do sedentary or non-physically demanding work but was not likely to do physically demanding work or non-sedentary employment. A VA audiology test report dated in February 2007 reflects that the only diagnosis was pseudohypacusis. The examiner stated that the hearing status could not be assessed. It was noted that there was poor inter-test consistency, suggesting unreliable results. Reflex threshold results suggested that his hearing was no worse than moderate in the right ear and moderately severe in the left ear. A letter dated in July 2008 from a social worker at Vet Center states that the Veteran had been seen since January 2008 for supportive counseling, and that he had symptoms such as inability to sleep, flashbacks, and difficulty concentrating. It was stated that PTSD had impacted his ability to work, and that he was unable to maintain employment because it was difficult for him to focus and concentrate, and his short term memory was very poor. The report of a VA audiology examination conducted in July 2009 notes that the Veteran had 94 percent speech recognition in each ear. The diagnosis was sloping SNHL and subjective tinnitus, bilaterally. The examiner concluded that the Veteran should not experience employment difficulties based on high frequency hearing loss, and should do well with his hearing aids in communication situations. The report of a mental disorders examination conducted in July 2009 reflects that the Veteran was not currently employed, and had retired in 1996 due to physical problems. The diagnoses on the VA mental examination were PTSD, mood disorder secondary to chronic back pain and immobility, and personality disorder NOS. The examiner noted that the Veteran had moderately severe limitations in psychosocial functioning. However, the examiner concluded that the Veteran did not have total occupational and social impairment. The examiner assigned a GAF score of 50. The report of a general medical examination conducted by the VA in July 2009 reflects that after examining the Veteran's right forearm injury and right femur disability, the examiner stated that the disabilities had no significant effects on the Veteran's usual occupation and no impact on employability. The examiner concluded that based on the service-connected disabilities, the Veteran would still be able to be employable in a sedentary job. In May 2012, the appellant's attorney submitted a statement from a licensed professional counselor (LPC). The LPC stated that he had fully reviewed the Veteran's VA file, including information on his medical history and claim with the VA; listed the Veteran's service-connected disabilities, and associated ratings, as they existed at the time of the Veteran's death; and stated, "It is my opinion that the above listed multiple service[-]connected disabilities collectively rendered [the Veteran] unable to obtain and sustain substantially gainful employment of any kind." No rationale for the conclusion was provided. Based on detailed review of the foregoing evidence, the Board finds that the Veteran's service-connected disabilities do not preclude all forms of substantially gainful employment consistent with his educational background and occupational experience. As noted, it must be demonstrated that that the Veteran is unable to secure or follow a substantial gainful occupation. In addressing this question, it must be determined whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. In this case, the evidence shows that he had some limitation due to his service-connected disabilities. This is recognized by the assigned 80 percent rating. The evidence, however, does not show that his service-connected disabilities prevented all forms of gainful occupation. Although a social worker at a Vet Center indicated in July 2008 that the Veteran's service-connected PTSD rendered him unemployable, the Board finds that such opinion is outweighed by the voluminous other evidence discussed above which weighs against the claim, to particularly include the opinions obtained on VA mental disorders examination in February 2007 and July 2009; which were performed by psychiatrists, and specifically for purposes of compensation. The Board also finds that the May 2012 opinion from the LPC to be of little or no probative value, inasmuch as it is completely devoid of any rationale for the conclusion proffered. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). With respect to his occupational history, the Board observes that the Veteran had an extensive employment history which included working at positions which have provided him with a variety of skills and abilities. There is no persuasive evidence showing that the Veteran's service-connected impairment prevented all forms of substantial gainful employment, given his educational and occupational background. The Social Security Judge and all examiners (other than the social worker and LPC, as described above) have provided opinions which support a conclusion that that the Veteran was not rendered unemployable by service-connected disability. The Board also notes that the Veteran's non-service-connected spine problems, and his age, may not be considered as factors supporting the assignment of a total disability rating. See 38 C.F.R. §§ 3.341(a), 4.19. Accordingly, the Board concludes that the criteria for a total disability rating based on individual unemployability due to service-connected disability are not met. ORDER 1. Service connection for a low back disorder is denied. 2. A total disability rating based on individual unemployability due to service-connected disability is denied. ____________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs