Citation Nr: 1320949 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 07-14 063 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a chronic respiratory disorder to include a claim that it is due to asbestos exposure. 2. Entitlement to a total rating based upon individual unemployability due to service-connected disabilities (TDIU) other than residuals of a cerebrovascular accident (CVA) from October 22, 2005 to April 30, 2006, and residuals of prostate cancer from January 28, 2010. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D.J. Drucker, Counsel INTRODUCTION The Veteran had active military service from August 1968 to April 1974 and served in the United States Naval Reserve from May 1975 to May 1977. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. A December 2003 rating decision, in pertinent part, denied service connection for chronic upper respiratory infections as due to exposure to asbestos and a June 2006 rating decision, in pertinent part, denied service connection for hypertension and strokes and entitlement to a TDIU. The Veteran perfected an appeal as to the RO's determinations and jurisdiction of his case is currently with the VA RO in St. Petersburg, Florida. In March 2008, the Veteran testified during a hearing at the RO in St. Petersburg before the undersigned Veterans Law Judge. A transcript of the hearing is of record. During the pendency of this appeal, in a May 2010 rating decision, the RO granted service connection for residuals of prostate cancer and assigned a 100 rating effective from January 28, 2010, with a future examination to be scheduled in May 2011. (An April 2012 rating decision, discussed below, also indicates that the Veteran was scheduled for a future examination in May 2011. There is no indication in the record that the examination has been performed or that a new disability evaluation has been assigned for the prostate cancer residuals.) The RO also granted entitlement to special month compensation (SMC) based on housebound status, effective from January 28, 2010. In a July 2010 decision, the Board granted the Veteran's claim for service connection for hypertension. At that time, it recharacterized his claim for service connection for chronic upper respiratory infections as a chronic respiratory disorder and considered chronic sinusitis as part of his chronic respiratory claim. The Board remanded the Veteran's claims for service connection for strokes and a chronic respiratory disorder, including as due to asbestos exposure, and entitlement to a TDIU, to the RO via the Appeals Management Center (AMC) in Washington, D.C., for further development. Then, in an April 2012 rating decision, the RO granted service connection for residuals of a CVA that was assigned a 100 percent disability rating, effective from October 22, 2005 to April 30, 2006, and a 10 percent rating from May 1, 2006. SMC was granted based on being housebound from October 22, 2005 to April 30, 2006. The RO's action represents a full grant of the benefits sought as to the Veteran's claim for service connection for strokes. While no additional disability compensation can be paid when a total schedular disability rating is in effect, a separate award of a TDIU predicated on a single disability could form the basis for an award of SMC. See e.g., Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008); see also Buie v. Shinseki, 24 Vet. App. 242, 250 (2010). Thus, the Board has recharacterized the TDIU issue on appeal. The Board observes that, in a May 2013 written statement, the Veteran's representative appears to raise new claims for service connection for arthritis and gastrointestinal esophageal reflux disease (GERD) as due to the Veteran's service-connected diabetes mellitus. The representative also notes the RO's April 2012 decision, that granted service connection for strokes, and said that the Veteran was "not properly rated" for the effects of his strokes. The representative's statement may be construed as a claim for an increased initial rating for residuals of a CVA. The representative further states that the Veteran was "apparently" granted service connection for kidney failure but was not assigned a rating as yet. This appears to be a reference to the RO's July 2008 rating decision (that granted a 60 percent disability rating for service-connected diabetes disability) and subsequent rating decisions that recharacterized the Veteran's disability as diabetes mellitus type 2 with chronic renal insufficiency. By this statement, it appears that the Veteran's representative is raising a claim for a separate compensable rating for chronic renal insufficiency. Thus, the matters of entitlement to service connection for arthritis and GERD as due to service-connected diabetes mellitus, an increased initial rating above 10 percent for residuals of a CVA, and a compensable rating for chronic renal insufficiency, are all referred to the Agency of Original Jurisdiction (AOJ) for appropriate development and adjudication. The Board further observes that, in the May 2013 statement, the Veteran's representative states that it is "unclear" as to whether the Veteran has coronary artery disease. If the Veteran wishes to file a claim for service connection for coronary artery disease, either he or his representative should contact the AOJ and set forth the specific nature of that claim. Finally, in the Introduction to its July 2010 decision/remand, the Board referred for AOJ consideration an apportionment claim raised by the Veteran's representative in a May 2010 statement that had not been certified for appellate consideration. There is no indication that any further action was taken on this claim and it is again referred to the AOJ. The matter of entitlement to service connection for a chronic respiratory disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Service connection is currently in effect for diabetes mellitus, type II, with chronic renal insufficiency, evaluated as 20 percent disabling from March 7, 2002 and as 60 percent disabling from January 22, 2008; peripheral neuropathy of the right and left lower extremities, each evaluated as 10 percent disabling from November 10, 2005, and as 20 percent disabling from January 22, 2008; peripheral neuropathy of the right and left upper extremities, each evaluated as 10 percent disabling from March 22, 2008; posttraumatic stress disorder (PTSD), evaluated as 30 percent disabling from January 23, 2003 and as 50 percent disabling from November 16, 2005; residuals of CVA, evaluated as 10 percent disabling from May 1, 2006; and erectile dysfunction and hypertension, assigned noncompensable disability evaluations. The Veteran's combined disability rating is 40 percent from January 23, 2003, 70 percent from April 30, 2006, and 90 percent from January 22, 2008. 2. Prior to May 1, 2006, the weight of the evidence is against a finding that the Veteran's service-connected disabilities precluded him from engaging in substantially gainful employment consistent with his occupational experience 3. From May 1, 2006, there is an approximate balance of favorable and unfavorable evidence as to whether the Veteran's service-connected disabilities prevent him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. Prior to May 1, 2006, the criteria for entitlement to a TDIU are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.3.340, 4.3, 4.7, 4.16 (2012). 2. From May 1, 2006, and resolving all doubt in the Veteran's favor, the criteria for entitlement to a TDIU other than for residuals of prostate cancer from January 28, 2010, are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.3.340, 4.3, 4.7, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); Pub.L. 112-154, §§ 504(a)(1)-(2), 505(a)-(b) (Aug. 6, 2012) (to be codified at 38 U.S.C.A. §§ 5103(a)-(b), 5103A(b)-(c)); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim. Pub.L. 112-154, §§ 504(a)(1)-(2) (to be codified at 38 U.S.C.A. § 5103(a)); C.F.R. § 3.159(b)(1) (20). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The United States Court for Veterans Appeals (veteran's court or court) had held that at a minimum, adequate VCAA notice in an increased rating claim required that VA notify the claimant that, to substantiate such a claim: (1) the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; (2) if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). The Federal Circuit vacated the court's decision, overturning the requirement that VA provide notice that the claim could be substantiated by evidence of a disability's impact on daily life and that VA provide notice with regard to potential diagnostic code criteria (element 2). Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The generic first, third, and fourth elements (contained in the veteran's court's decision) were not disturbed by the Federal Circuit's decision. In March 2006 and April 2007 and July 2010 letters, the AOJ notified the Veteran of information and evidence necessary to substantiate his claim. He was notified of the information and evidence that VA would seek to provide and the information and evidence that he was expected to provide. In the March 2006 letters, the Veteran was informed of how VA determines disability ratings and effective dates, as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The AOJ satisfied its duty to notify the appellant under 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012) and 38 C.F.R. § 3.159(b). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). His service treatment and personnel records and VA and private records have been associated with the claims file, to the extent available. All reasonably identified and available medical records have been secured. A review of the Veteran's Virtual VA electronic file shows VA medical records regarding recent urology treatment for prostate cancer, dated from 2010 to 2013, not relevant to the Veteran's claim for a TDIU on appeal, as discussed supra. In February 2010, the Board remanded the Veteran's case to the RO for the purpose of verifying his United States Naval Reserve service and obtaining any service treatment records from that period, obtaining records considered by the Social Security Administration (SSA) in its 2008 award of disability benefits to him and recent VA medical records, and scheduling him for a VA examination. There has been substantial compliance with this remand as, in January 2011, the National Personnel Records Center verified that the Veteran served in the Naval Reserve from May 1975 to May 1977, and provided an available (dental) service treatment record, records considered by the SSA were received, relevant VA medical records, dated to August 2010 were obtained, and he was scheduled for VA examination in March 2011. The March 2011 VA examination report is adequate for rating purposes as the claims file was reviewed, the examiner reviewed the pertinent history, examined the Veteran, provided clinical findings and diagnoses, and offered an etiological opinion from which the Board can reach a fair determination. The records satisfy 38 C.F.R. § 3.326 (2012). The Board finds the duties to notify and assist have been met. II. Factual Background and Legal Analysis The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). The Veteran submitted a claim for service connection multiple disabilities in June 2005. In that and later submissions, notably in November 2005 and during his March 2008 Board hearing, he contends that he is unable to secure or follow substantially gainful employment due to his service-connected disabilities, i.e. diabetes mellitus, PTSD, peripheral neuropathy of the upper and lower extremities, residuals of a CVA, hypertension, and erectile dysfunction. In his formal claim for a TDIU received in December 2006, the Veteran reported that he last worked in October 2005 as an associate pastor for the Sheffield Family Life Center where he worked since 2001. He testified that he resigned as a senior pastor from a large inner city church after working there fifteen years. See Board hearing transcript at page 25. The Veteran stated that he became withdrawn and developed panic attacks that affected his ability to interact with people and caused his marriage to deteriorate. Id. at 28. While the Veteran acknowledges the severity of various nonservice-connected disabilities, to include asthma, obesity, and obstructive sleep apnea, he asserts that his service-connected disabilities, standing alone, have precluded gainful employment since 2005. He is currently 64 years of age. He is a high school graduate and has two years of college education. The Veteran has training in communications systems management (in military service) and as an electronics technician (for the Santa Fe Railroad in August 1974). It is the established policy of the 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). A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. A total disability may or may not be permanent. Total ratings will not be assigned, generally, for temporary exacerbations or acute infectious diseases except where specifically prescribed by the schedule. 38 C.F.R. § 3.340(a). A total disability rating for compensation purposes may be assigned where the schedular rating is less than total, where it is found that the disabled person is unable to secure or follow substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, providing at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 4.16(a). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice- connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). Service connection is currently in effect for diabetes mellitus, type II, with chronic renal insufficiency, evaluated as 20 percent disabling from March 7, 2002, and as 60 percent disabling from January 22, 2008; peripheral neuropathy of the right and left lower extremities, each evaluated as 10 percent disabling from November 10, 2005, and as 20 percent disabling from January 22, 2008; peripheral neuropathy of the right and left upper extremities, each evaluated as 10 percent disabling from March 22, 2008; PTSD, evaluated as 30 percent disabling from January 23, 2003 and as 50 percent disabling from November 16, 2005; residuals of a CVA, evaluated as 10 percent disabling from May 1, 2006; and erectile dysfunction and hypertension, assigned noncompensable disability evaluations. The Veteran's combined disability evaluation is 40 percent from January 23, 2003, 70 percent from April 30, 3006, and 90 percent from January 22, 2008. Thus, he meets the schedular criteria for consideration of a TDIU from May 1, 2006 but, prior to that time, he did not meet schedular requirements for a TDIU. Notably, prior to October 22, 2005, the Veteran's only service-connected disabilities were diabetes mellitus, evaluated as 20 percent disabling and PTSD, evaluated as 30 percent disabling. His combined disability evaluation was 40 percent. Thus, he did not meet the percentage prerequisites for entitlement to a TDIU under 38 C.F.R. § 4.16(a) (one disability rated at least 60 percent, or a combined rating of 70 percent or more, with one service-connected disability rated at 40 percent or more). From October 22, 2005 to April 30, 2006, as discussed above, the Veteran was in receipt of a 100 percent rating for residuals of a CVA. While no additional disability compensation can be paid when a total schedular disability rating is in effect, a separate award of a TDIU predicated on a single disability could form the basis for an award of SMC. See e.g., Bradley v. Peake, 22 Vet. App. at 293-94; see also Buie v. Shinseki, 24 Vet. App. at 250. Disabilities resulting from a common etiology may be combined in order to meet the schedular criteria under 38 C.F.R. § 4.16(a). In this case, from October 22, 2005 to April 30, 2006, the Veteran's peripheral neuropathy of the left and right lower extremities stem from one disease process, service-connected diabetes mellitus. Therefore, when combining the ratings listed above as one single rating (10 percent for each lower extremity and 20 percent for diabetes mellitus), the Veteran is then in receipt of a 40 percent disability rating for the purposes of a TDIU prior to May 1, 2006. See Bradley, and Buie, supra. Prior to May 1, 2006, he does not meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a). That notwithstanding, it is the policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). Therefore, if a veteran fails to meet the rating enunciated in 38 C.F.R. § 4.16(a), as here, an extraschedular rating is for consideration where a veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b). 38 C.F.R. § 3.321(b)(1) (2012), that concerns extraschedular cases, indicates that extraschedular ratings are warranted for "an exceptional or unusual disability picture." Accordingly, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any nonservice-connected condition and advancing age, which would justify a total rating based upon individual unemployability on an extraschedular basis. See Van Hoose v. Brown, 4 Vet. App. at 363. The Board recognizes that it is prohibited from assigning a TDIU on the basis of 38 C.F.R. § 4.16(b) in the first instance without ensuring that the claim is referred to VA's Director of Compensation and Pension for consideration of an extraschedular rating. Bowling v. Principi, 15 Vet. App. 1 (2001). However, here there is no favorable medical opinion to support the Veteran's claim for unemployability for the period prior to May 1, 2006 such as to warrant referral for extraschedular consideration. Id. In fact, in September 2003, Dr. Dennis Owens, a psychiatrist, noted his treatment of the Veteran for panic attacks and depressive symtoms and, in February 2004, diagnosed PTSD features, alleviated by prescribed medication. But, Dr. Owens did not conclude that the Veteran was unemployable due to his PTSD disability. However, for the period from May 1, 2006, the Veteran meets the schedular requirements for a TDIU. Consequently, the only remaining question is whether he is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. In analyzing the evidence, the Board must determine, as a question of fact, both the weight and credibility of the evidence. Equal weight is not accorded to each piece of evidence contained in a record; every item does not have the same probative value. The Board must account for the evidence that it finds persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence. See Struck v. Brown, 9 Vet. App. 149, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991). VA and non-VA medical records, dated from 2003 to 2010, document treatment for several significant nonservice-connected disorders including obesity, obstructive sleep apnea, asthma, sinusitis, and allergic rhinitis. In short, these records attest to the severity of the Veteran's nonservice-connected disorders in relation to his inability to secure employment. In his December 2006 TDIU claim, the Veteran indicated that he lost a year of work due to illness although, in March 2007, his most recent employer reported that he lost 30 days to illness in the last year he worked. However, in a January 2007 Mental Impairment Questionnaire completed in conjunction with the Veteran's claim for SSA benefits, Dr. M.S., a VA treating psychiatrist, noted that the Veteran had a major depressive disorder and assigned a score of 40 on the Global Assessment of Functioning (GAF) scale, indicative of some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work, family relations, judgment, thinking, or mood. Dr. M.S. also noted that the Veteran had a mood disorder that inhibited his ability to handle stress including pain, and was likely to miss more than four days per month due to his impairment. A February 2006 SSA functional assessment prepared by a social worker confirms the Veteran's diagnoses but not the level of restrictions he asserted. In a May 24, 2006 VA medical record, Dr. M.S., the psychiatrist, stated that the Veteran's psychiatric diagnoses were major depression and PTSD. The Veteran indicated that he was unable to work in his profession as a clergyman because he had difficulty with emotional responses and interaction with people. The Veteran also reported that his thinking, problem solving, and concentration were impaired. The VA psychiatrist stated that the Veteran's reported psychiatric symtoms were consistent with a "severe" degree of impairment due to major depression and PTSD. As to the evidence in support of an award of a TDIU, the SSA ultimately determined in a February 2008 decision, that the Veteran was disabled primarily due to his service-connected diabetes mellitus, peripheral neuropathy, and PTSD, as well as his non-service-connected obstructive sleep apnea and obesity, since October 2005. In part, his service-connected diabetes was described as causing fatigue, fluctuating blood sugar levels, and limiting the Veteran's ability to lift, carry, walk, sit, or stand. Although he was able to perform simple, repetitive tasks, he was unable to consistently maintain attention and concentration throughout an eight hour day. While the decision by the SSA on a claim before that agency is not controlling with respect to VA's determination on a claim, the SSA's determination regarding the Veteran's lack of employability and the reasons for that determination are pertinent for VA purposes. Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Masors v. Derwinski, 2 Vet. App. 181, 187-88 (1992). In this case, the SSA's disability determination provides some evidence in support of the Veteran's TDIU claim, since the SSA determined that his primary disability was his service-connected diabetes mellitus. In his December 2006 TDIU claim, the Veteran also reported that he worked as a senior pastor from March to October 2006 at Journey Four Square Gospel Church and received $800 in free housing but subsisted on his VA benefits. VA outpatient records, dated from late 2006 to mid 2007, show that he performed volunteer work. A May 2006 VA PTSD examination report indicates that the Veteran worked as a minister for more than fifteen years and resigned several months earlier as he was unable to handle people. He worked with a smaller congregation that was easier for him and was unpaid. It is important to emphasize that the ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). The Veteran's work as a volunteer pastor appears to have been marginal employment, at best. From the record, it appears that the Veteran is able to perform many aspects of daily living. See e.g., March 2011 VA PTSD examination report. However, the law provides that a person may be too disabled to engage in employment although he or she is fairly comfortable at home or upon limited activity, such as the Veteran in this case. See 38 C.F.R. § 4.10. Moreover, a veteran also does not have to prove that he or she is 100 percent unemployable in order to establish an inability to maintain a substantially gainful occupation, as required for a TDIU award pursuant to 38 C.F.R. § 3.340(a). Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). In March 2011, a VA physician assistant examined the Veteran and opined that the Veteran's service-connected disabilities of diabetes, type II, hypertension, and bilateral peripheral neuropathy would not preclude employment in predominantly sedentary roles such as clerical/office work, telephone sales/representative, or data entry. However, the March 2011 VA examiner failed to provide any rationale for his opinion; specifically, he did not provide a basis as to why he concluded that the Veteran was capable of sedentary work. Nor did he explain why a person with peripheral neuropathy of the upper extremities was well-suited for a data entry position. A March 2011 VA PTSD examination report indicates that the Veteran was not unemployable solely as a result of his PTSD. The examiner's rationale was his review of the Veteran's medical records and the clinical evaluation. But his examiner also did not provide a basis as to why he concluded that the Veteran was not employable due to his PTSD. The current schedular rating of 60 percent for the Veteran's diabetes mellitus type 2 with chronic renal insufficiency is reflective of diabetic disability requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. See 38 C.F.R. § 4.119, Diagnostic Code 7913 (2012). As such, it further supports a finding of severe or, at least very significant, occupational impairment due to diabetes mellitus type 2 with chronic renal insufficiency. The current schedular rating of 50 percent for PTSD is reflective of occupational and social impairment with reduced reliability and productivity. See 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). This further supports a finding of at least moderate to severe occupational impairment due to PTSD. Further, the current schedular rating of 20 percent for peripheral neuropathy of each of the Veteran's lower extremities is reflective of moderate incomplete paralysis of the sciatic nerve. See 38 C.F.R. § 4.124a, Diagnostic Code 7913-8520 (2012). This further supports a finding of at least moderate occupational impairment due to peripheral neuropathy of the lower extremities. The current schedular rating of 10 percent for peripheral neuropathy of each of the Veteran's upper extremities is reflective of mild incomplete paralysis of the medial nerve. See 38 C.F.R. § 4.124a, Diagnostic Code 7913-8515 (2012). This further support a finding of some occupational impairment due to peripheral neuropathy of the upper extremities. The current schedular rating of 10 percent for residuals of CVA is reflective of some impairment of neurologic function. See 38 C.F.R. § 4.123, Diagnostic Code 8008 (2012). This further supports a finding of mild to moderate occupational impairment due to residuals of the CVA. Here, the probative evidence of record demonstrates that the Veteran is severely disabled by service-connected diabetes mellitus type 2 with chronic renal insufficiency, peripheral neuropathy of the upper and lower extremities, PTSD, and residuals of a CVA, plus hypertension and erectile dysfunction. Moreover, multiple medical professionals have considered the Veteran's ability to work. In May 2006, the Veteran's VA treating psychiatrist said the Veteran was severely impaired by his psychiatric disability. While other opinions of record found otherwise, the evidence is deemed to be at least in equipoise on the essential question at issue, whether the Veteran is precluded from employment due to his service-connected disabilities. The severity of several of the Veteran's nonservice-connected disorders, especially his asthma, obesity, and obstructive sleep apnea, and the Veteran's advanced age (64), are factors that likely also affect his ability to work. As noted, advancing age and non-service connected disorders may not be considered for the purposes of TDIU. 38 C.F.R. § 4.19 (2012). However, in the present case, there is an approximate balance of the positive and negative evidence for the TDIU issue. When a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. In Gilbert, supra, the court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." In Gilbert, the court specifically stated that entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. Under the benefit of the doubt doctrine established by Congress, when the evidence is in relative equipoise, the law dictates that the appellant prevails. In sum, and upon review of the pertinent evidence of record, the Board does not find evidence that service-connected disabilities by themselves precluded the Veteran from gainful employment prior to May 1, 2006. Rather, the evidence reflects that the Veteran had some disability that interfered with his ability to work. The record also reflects that the Veteran reported working until October 2005 when he resigned as a pastor. Thus, prior to May 1, 2006, the weight of the probative evidence of record is against the Veteran's claim for a TDIU. Accordingly, the Board finds, based on the preponderance of the evidence of record, that, prior to May 1, 2006, the Veteran's diabetes mellitus, peripheral neuropathy of the lower extremities, and PTSD did not preclude him from obtaining and maintaining substantially gainful employment consistent with his education and past work experiences, and the Veteran's claim for TDIU is denied for that period. See 38 C.F.R. §§ 3.340, 3.341, 4.16. Given that the Veteran's diabetes mellitus, peripheral neuropathy of the lower extremities, and PTSD, did not preclude unemployability prior to May 1, 2006, referral for an extraschedular opinion in this case is not necessary as noted supra, as the Board has not found evidence of unemployability in the first instance that demonstrates an "exceptional or unusual disability picture" on which an extraschedular evaluation could be based. See 38 C.F.R. § 3.321 But, resolving all doubt in favor of the Veteran, the Board finds that, from May 1, 2006, he is entitled to a grant of a TDIU other than for prostate cancer from January 28, 2010. As such, the benefit sought on appeal is allowed to this limited extent. 38 C.F.R. §§ 3.341(a), 4.19, Van Hoose v. Brown, at 363. ORDER Prior to May 1, 2006, entitlement to a TDIU is denied. From May 1, 2006, entitlement to a TDIU other than for prostate cancer from January 28, 2010 is granted, subject to the laws and regulations governing the award of monetary benefits. REMAND According to a November 16, 2010 Report of General Information (VA Form 21-0820), the Veteran advised RO personnel that there was "new evidence for his appeal" at the James Haley VA medical center (VAMC). He reported that he was seen that day "for his respiratory issues and possibly" asbestosis and requested that the records be obtained. However there is no indication that the RO obtained these records. They are not in the Veteran's claims file that includes VA medical records dated to July 2010. His Virtual VA electronic file contains medical records regarding urology treatment, dated from March to October 2010, in February and June 2011, and in January 2013. Thus, there appear to be some pertinent VA medical records that may affect the disposition of the instant claims that are not yet associated with the claim file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) Accordingly, the case is REMANDED for the following action: 1. Obtain all medical records regarding the Veteran's treatment at the James Haley VAMC for the period from July 2010 to the present, to specifically include records of treatment for a respiratory disorder dated on November 16, 2010. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) (West 2002 & Supp. 2012) and 38 C.F.R. § 3.159(e) (2012). 2. Thereafter, the RO/AMC should review the expanded record and readjudicate the claims on appeal. If the benefits sought are not granted in full, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs