Citation Nr: 1325757 Decision Date: 08/14/13 Archive Date: 08/16/13 DOCKET NO. 09-46 862A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to a total disability evaluation based on individual unemployability (TDIU) prior to April 27, 2011. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from June 1964 to August 1967. He also had additional service with the Army National Guard. This matter comes to the Board of Veterans' Appeals (Board) from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In a July 2011 rating decision, the RO granted service connection for ischemic heart disease with a 100 percent evaluation effective April 27, 2011. In light of this grant, the Veteran is not seeking a TDIU after this date. See December 2011 VA Form 21-4138. The Veteran was provided a Travel Board hearing in March 2012. A transcript of the testimony offered at this hearing has been associated with the record. In January 2013, this matter was last before the Board, at which time it was remanded for further development. That development has been completed. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Also at this time, the Board denied the Veteran's claim for entitlement to an initial evaluation in excess of 20 percent prior to December 22, 2009, for type II diabetes mellitus. This issue is thus not before the Board at this time. In June 2013, the appellant submitted evidence that has not yet been considered by the RO. In this regard, the Board may consider this evidence in the first instance because the appellant has waived initial RO consideration thereof. See 38 C.F.R. § 20.1304(c) (2012). FINDINGS OF FACT Although as of December 22, 2009, the Veteran met the threshold schedular requirements for consideration of a TDIU, prior to April 27, 2011, his service- connected disabilities have not been shown to prevent him from securing and following substantially gainful employment. CONCLUSION OF LAW The criteria for the assignment of a TDIU rating have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 7104 (West 2002); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. In the notice, VA will inform the claimant which information and evidence, if any, that the claimant is to provide to VA and which information and evidence, if any, that VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (2011); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Notice should also address the rating criteria and effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the appellant pre-adjudication notice by a letter dated in March 2008. VA has obtained the Veteran's service treatment and VA records, assisted the Veteran in obtaining evidence, afforded the Veteran physical examinations, obtained a medical opinion on the issue at hand, and afforded the Veteran the opportunity to give testimony before the Board. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. The United States Court of Appeals for Veterans Claims (hereinafter "the Court") has held that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that VA examination and opinion obtained in this case are adequate. It is predicated on a substantial review of the record and medical findings and consider the Veteran's complaints, symptoms and history, and saliently, the effect of his service-connected disabilities on his ability to obtain and maintain substantially gainful employment. Accordingly, VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the service connection issue addressed in this decision has been met. 38 C.F.R. § 3.159(c)(4). VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. TDIU A total disability rating based upon individual unemployability due to service-connected disabilities is assigned when service-connected disabilities result in such impairment of mind or body that the average person would be precluded from following a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15 (2012). 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 must be rated at 40 percent or more and the combined rating must be at least 70 percent. 38 C.F.R. § 4.16(a). A claim for a total compensation rating based upon individual unemployability, "presupposes that the rating for the [service-connected] condition is less than 100%, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In evaluating a veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Pursuant to 38 C.F.R. § 4.16(b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), such case shall be submitted for extra-schedular consideration. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the Veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Pertinent Facts Of record is a December 2001 Standard Form 3112B pertaining to the Veteran's application for disability retirement from the U.S. Army Corps of Engineers. The form documents that the Veteran's bad knees had interfered with his ability to stand, walk, climb, bend, stoop, kneel, push, pull, twist, lift and carry objects, and that he had been assigned lighter duties on a temporary basis due to his knees. A January 2002 treatment note from Blue Mountain Orthopedics documents a 6 or 7 year history of pain in the right knee, as well as the left knee for about half that time. The note documents a history of twisting injury to the right knee in 1994 or 1995. The Veteran was then working, doing fairly heavy work as a mechanic where he had to go up and down a lot of stairs, and perform heavy lifting and carrying. A letter from Blue Mountain Orthopedics also dated in January 2002 documents that the Veteran had severe degenerative joint disease of the knees. The letter also indicated that the Veteran's condition of the knees would become progressively more severe and that a full recovery was not expected, although a partial joint replacement could help. The letter reflects that the Veteran was unable to perform the duties of his job due to the condition of his knees. The Veteran was approved for disability retirement in March 2002. See March 15, 2002, letter from U.S. Office of Personnel Management. Contained within the claims file are private records from Wallowa Mountain Medical dated from July 2002 to December 2006. A June 2004 record from this provider documents that the Veteran had retired on disability from the Corps of Engineers because of severe degenerative joint disease of the knees. The record also documents non-insulin-dependent diabetes, with recent inadequate control, and that the Veteran was encouraged to increase exercise. It also references hypertension and hyperlipidemia. Subsequent records document similar findings and that the Veteran had worked as a volunteer firefighter, and that he had helped with dog-sled races during the period covered by these records. Notably, the Veteran has explained that he had to cease working as a volunteer firefighter due to the demands of the job. He has also explained that he infrequently assisted with dog-sled races, and that he was unable to participate in several of his favorite activities as he had used to, including snowmobiling. Of record is a September 2004 private neurologic surgery consultation record. The record documents that the Veteran was a mechanic, then on disability retirement because of severe knee arthritis. Of record is an April 2007 letter from R.D.B., M.D. The letter notes that the Veteran had low back pain, as well as age onset diabetes. In regard to diabetes, it was noted that insulin had been required in the past, but that with diet and weight loss, as well as exercise and oral medications, that the condition was in reasonable control. Also of record is a May 2007 letter from S.B.H., MD of Blue Mountain Orthopedics, provided by the Veteran in regard to work capacity. The letter documents that the Veteran had been a patient there since 2001, at which time he was diagnosed as having bilateral knee osteoarthritis. The letter documents that the Veteran had progressively worsening osteoarthritis of the knees and that in order to defer total joint replacement as long as possible, he was restricted to a 10 pound weight limit and was told to minimize stair climbing. Dr. H. felt that the Veteran would need a complete knee replacement at some point in the future. In August 2007, the Veteran was afforded a VA examination, largely to address the severity of his service-connected type II diabetes mellitus. The examination report notes that the condition had been stable since its onset, with insulin treatment once daily, as well as Metformin and Lantus, without side effects. He was not then restricted in his ability to perform strenuous activities by diabetes mellitus. In terms of occupation, the examiner noted that the Veteran was working with a sled dog race and had been doing so for about 2 to 5 years. In November 2007, the Veteran filed his claim for a TDIU. See VA Form 21-8940. In his claim, he indicated that type II diabetes mellitus, kidney disease, bilateral hearing loss and hypertension prevented him from securing or following any substantially gainful occupation. He also indicated that he had last worked in August 2002 as a mechanic for the U.S. Army Corps of Engineers and that he had lost "hundreds" of time from illness. He explained that he tired easily and had lost his ability to ascend or descend stairs. He complained of frequent dizzy spells, frequent sharp pain in his frontal lobe, high blood pressure, loss of feeling in his toes making it difficult to wear foot protection, getting cold toes, an inability to understand words in a loud environment and "other medical conditions" that increased his inability to work. In a November 2007 statement, the Veteran related that the August 2007 VA examination contained errors. He noted that he had been retired since August 2002 due to a medical condition. He also noted that he had not been employed full-time and only volunteered for a weekend festival and assisted with sled dogs. In May 2008, the Veteran again received a VA examination. The examination report notes that the Veteran retired in 2002 and was noted as being pre-diabetic at that time. In 2005, the Veteran's diabetes required insulin and an apparent admission to the hospital to get his blood sugar under control. His course since onset was noted as improved. He was then treating his diabetes mellitus with both insulin and oral medication with no side effects. Inter alia, the examiner noted that the Veteran was not restricted in his ability to perform strenuous activities. At this time, the examiner was asked to assess if it was at least as likely as not that the Veteran was unemployable to due this type II diabetes mellitus, or if it was more likely that he medically retired due to arthritis. The examiner, confusingly, in response to this question related that "was at least as likely as not (50/50 probability) aggravated by diabetes mellitus." As mentioned herein above, the Veteran's claim for a TDIU was denied in a May 2008 rating decision. In a June 2008 communication, he offered reasons for disagreeing with this denial. In this letter, he related that his service-connected disabilities rendered him unemployable. He noted that he had been advised to restrict his activities by doctors. He particularly cited the aforementioned May 2007 letter from Dr. H. He asserted that the May 2008 VA examiner's opinion warranted a grant of a TDIU. He noted that he had tingling and numbness in his feet and hands, and that he could not remain on his feet for long periods of time. He also referenced digestive problems, blacking out/dizziness, urinary symptoms and neuropathy. In an August 2008 statement, the Veteran again reiterated that he disagreed with the denial of a TDIU. He reiterated his earlier complaints, but also noted that he had likely had diabetes since 1988. He posited that undiagnosed diabetes had been responsible for his diminishing work capabilities and that the claim should be granted on these grounds. In December 2008, the Veteran was afforded VA examinations of the eye, related to diabetes mellitus. The examination notes that the Veteran had mostly worked as a mechanic, working on light to heavy equipment and vehicles. It also documents that the Veteran retired in 2002 due to "medical condition" and that his vision was not a factor in retirement. In terms of employment, he was then helping with his wife's business. He also volunteered with a local annual sled dog race. In December 2008, he was also afforded a VA examination of the genitourinary system. The examination report documents that the Veteran last worked as a heavy equipment mechanic and that he had retired in 2002 due to medical (physical problem), specifically, "fatigue" and "vague body pain." In February 2009, the Veteran was afforded a VA audiologic examination. The examination report notes that the Veteran was not then employed. In terms of the impact of hearing loss on his occupation, it was noted that it caused him difficulty in taking information via the telephone and communicating in background noises. It also caused him difficulty localizing sounds. Tinnitus was also cited in this regard. In a September 2009 statement, the Veteran addressed the continued denial of his claim for a TDIU. In regard to the aforementioned notation that he was working in his wife's business, he clarified that his wife owned a small tourist business and that he received no income from his work. In furtherance of substantiating his claim, the Veteran submitted a December 22, 2009, letter from S.C., M.D. In this letter, Dr. C. relates that the Veteran had been a patient of theirs since November 2009. Dr. C. relates further in this letter that he was taking daily insulin and oral medication, had a restricted diet and "restricted and regulated daily activities." In this regard, Dr. C. elaborated that the Veteran's diabetes mellitus prevented him from lifting objects weighing more than 10 pounds, standing more than 2 hours, sitting more than 1 hour, climbing stairs and walking for more than 1/4 mile without resting. Dr. C. noted that the Veteran's blood sugar could "be fluctuated" if he had no such restriction in activity. Dr. C. noted further that diabetes mellitus resulted in him needing to check his blood sugar and take insulin frequently, which limited him from normal activities in "daily livings." In June 2010, the Veteran provided another letter from Dr. C. In the letter, Dr. C. related that the Veteran followed up with him on a regular basis. He noted the Veteran's history of diabetes mellitus since 1988 and that he took daily insulin and oral medication. Dr. C. noted that the Veteran had a restricted diabetic diet and regulated and restricted daily activities. Dr. C. noted that he also had diabetic neuropathy and fluctuated blood sugar. In salient part, Dr. C. remarked that the Veteran "will not be able to be employed because of diabetes mellitus and diabetic neuropathy." In May 2011, the Veteran was afforded yet another VA examination. The examiner was asked to address whether the Veteran had "total disability due to unemployability due to diabetes and peripheral neuropathy." The examiner remarked that these conditions were moderately causing the Veteran to not be able to get and keep employment. However, the examiner further explained that ischemic heart disease (service-connected as of April 27, 2011, with a 100 percent evaluation) was much more disabling and was 100 percent of his inability to be employed at all. The examiner also explained that the Veteran did not currently have a renal component to his disability due to diabetic management and appropriate medical therapy and that laboratory values in this regard were normal. In March 2012, the Veteran testified before the Board. At the hearing, he noted that he had been retired since 2002 and asserted that his service-connected diabetes mellitus had precluded him from securing and maintaining substantially gainful employment. He testified that he had been working at his wife's tourist business, but that this should be considered a "protective business," apparently in regard to the amount of income generated there from. In regard to his work at his wife's business, he noted that he was restricted to the activities he could perform and tired easily. He particularly cited that he had been advised to restrict his diet and activities, but exercise as tolerated. He discussed recent episodes of shaking and weakness related to his diabetes mellitus precipitated by low blood sugar. Also, at the hearing, he related that he had been medically advised since about 2005 not to work due to his diabetes mellitus. He referenced that Dr. B. and a VA doctor had advised him as such, as well as Drs. H. and C., as outlined above. He testified that the totality of his service-connected disabilities had rendered him unable to obtain and maintain substantially gainful employment. In closing, the Veteran read a prepared statement. He explained that his diabetes was present in 2002 when he retired and was "uncontrolled" and "running rampant." He notes that he was unable to climb stairs, carry more than 10 pounds, stand for extended periods, sit for extended periods, or crouch, kneel and stoop. He noted that he was told this "was because of [his] arthritis" and explained that after reviewing numerous medical articles, he felt that his retirement was rather caused by his diabetes. He noted that the symptoms of fatigue, inability to carry objects that weighed more than 10 pounds, walking long distances and sit or stand for a long time, were "the exact reason" for retiring that that these were all caused by diabetes. He noted that he was competent to testify about his impressions. In accordance with Board's remand directives, the Veteran was afforded a VA examination in February 2013, which was notably based upon a review of the claims file. The examiner outlined the Veteran's employment and education history, as well as his assertions that his diabetes mellitus had negatively impacted his occupational functioning. She also outlined his service-connected disabilities, and noted that the Veteran had been retired since 2002, when he had last worked as a mechanic. The examiner noted that there appeared no medical evidence during the period in question showing that the Veteran's diabetes mellitus had resulted in his retirement in 2002. Rather, the examiner noted that the Veteran's non-service-connected bilateral knee condition had caused interference in this manner. She further noted that the Veteran believed that he experienced symptoms of diabetes in 2002, but was not treated therefore as "the doctor was Adventist and wanted [him] to manage his diet" instead of taking medication. Along these lines, the examiner noted that the records documented that the Veteran was told to increase exercise in 2004 to manage diabetes, which appeared to have become uncontrolled in 2005, when the Veteran was hospitalized to stabilize the condition. She noted, however, that evidence at this time did not show that the Veteran was told not to work, but rather advised to continue to exercise in moderation to help manage the diabetes. Based on a review of the claims file and examination of Veteran, as well with consideration of his service-connected disabilities, she concluded that this indicated that the Veteran would be able to do at least non-strenuous, sedentary work and that the service-connected conditions did not preclude substantially gainful employment prior to 2011. The Veteran submitted a May 2013 letter from R.D.B., M.D. in support of his claim. In the letter, Dr. B related that the Veteran had insulin dependent diabetes since 2005 and was also taking an oral hypoglycemic medication. He stated that this "ma[d]e him at a very significant risk for hypoglycemic reactions potentially precipitated by strenuous physical exertion" and that "[s]uch should be avoided." In June 2013, the Veteran submitted a statement in support of his claim. In the statement, he related that he had no income from employment during the relevant period and attributed this to his diabetes and medication side effects. He noted that he took early retirement due to physical limitations that he ascribed to his diabetes mellitus. He asserted that the May 2008 and February 2013 VA examinations substantiated his claim. Analysis The Veteran is currently in receipt of compensation for the following disabilities: 1) ischemic heart disease, with a 100 percent evaluation since April 27, 2011; 2) type II diabetes mellitus, with a 20 percent evaluation from March 8, 2007, and a 40 percent evaluation since December 22, 2009; 3) kidney disease/microalbuminuria with hypertension associated with type II diabetes mellitus, with a 30 percent evaluation from March 8, 2007; 4) bilateral hearing loss, with a 10 percent evaluation from March 8, 2007; 5) peripheral neuropathy of the left lower extremity associated with type II diabetes mellitus, with a 10 percent evaluation since March 8, 2007; 6) peripheral neuropathy of the right lower extremity associated with type II diabetes mellitus, with a 10 percent evaluation since March 8, 2007; 7) tinnitus with a 10 percent evaluation since November 19, 2008; 8) erectile dysfunction with a non-compensable evaluation, since November 15, 2007; and 8) bilateral subscapular cataracts, with a non-compensable evaluation since June 4, 2008. Since the outset of his claim, his type II diabetes mellitus and associated kidney dysfunction and peripheral neuropathy, which result from a common etiology, satisfy the criteria for a single 40 percent disability. However, it is not until December 22, 2009, that his combined evaluation for purposes of compensation rose to 70 percent. Accordingly, prior to December 22, 2009, the Veteran does not meet the minimum schedular criteria for consideration of a TDIU. Resolution of this claim largely depends on weighing the Veteran's assertions and the medical evidence above, particularly the June 2010 opinion from Dr. C. stating that the Veteran was unable to be employed due to diabetes mellitus and associated peripheral neuropathy. Along these lines, the Board acknowledges the Veteran's assertions that he retired in 2002 due to diabetes mellitus and associated complications, and that during the period in question this prevented him from obtaining and sustaining substantially gainful employment. The Board also notes that Dr. C.'s opinion seems to buttress this assertion. However, the Board finds that this evidence is substantially outweighed by the remaining evidence of record. Gilbert, supra. The Board notes that the Veteran's assertions regarding retiring not due to knee problems, but rather diabetes mellitus, are contradicted by the contemporaneous evidence related to his retirement in 2002. Indeed, when the Veteran applied for medical retirement in 2001, only his knees were cited in this regard. Moreover, the medical evidence dated at this time shows clearly that the Veteran's non-service-connected knee conditions had rendered him unable to perform his duties as a mechanic. Moreover, through at least 2005, the Veteran volunteered as a firefighter. The Veteran, as outlined above, is certainly competent to relate his observations of a disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). However, his assertions are contradicted by the medical evidence showing that interference with employment was solely due to non-service-connected disabilities of the knees, as opposed to any service-connected disability/ies. Likewise, the Board acknowledges that Dr. C. related in 2010 that the Veteran's diabetes mellitus had rendered him unemployable. The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In this regard, the Board finds that the February 2013 VA examiner's opinion is more probative on the issue. Dr. C., while a competent medical authority, failed to address the relevant medical evidence that pertains to the Veteran's non-service-connected bilateral knee disabilities, which, undoubtedly, have impacted the Veteran's employment. On the other hand, the February 2013 VA examiner addressed not only the Veteran's service-connected disabilities, but also the non-service-connected disability of the knees. The February 2013 VA examiner's opinion is based on a much more substantial review of the record, and Dr. C.'s is not. A medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Accordingly, the Board finds that Dr. C.'s opinion is substantially lacking in probative value, particularly vis-à-vis that of the February 2013 VA examiner. Lastly, to the extent that it can be said that the specialist who authored the February 2013 opinion awkwardly worded it with emphasis on diabetes mellitus, when the opinion is viewed in its entirety, and in its full context, it is clear that the specialist felt that the Veteran's service-connected disabilities did not result in preclusion of him obtaining and maintaining substantially gainful employment. The specialist's choice of language is not error where the opinion is unambiguous. See Dyment v. West, 13 Vet. App. 141 (1999); Evans v. West, 12 Vet. App. 22 (1998). In sum, the Board acknowledges the Veteran's assertions, as well as Dr. C.'s opinion and the evidence asserting regulation of activity. However, the Veteran's assertions and the remaining evidence that appear to substantiate the claim, are substantially outweighed by the evidence showing interference with employment caused by non-service-connected disabilities of the knees, as well as the February 2013 VA opinion, which does not find that the Veteran's service-connected disabilities have precluded him from obtaining and maintaining substantially gainful employment. The most probative evidence, outlined above, indicates that his service-connected disabilities do not do so, and it is salient to the Board that the Veteran does continue to assist with his wife's business. The Board acknowledges that the Veteran feels that the claim should be substantiated on the basis of the May 2008 VA examiner's opinion, which he feels indicates that diabetes mellitus contributed to his retirement. However, the opinion does not make any such statement and is thus not probative in this regard. Likewise, the Board acknowledges the Veteran's assertion that the February 2013 VA examination report indicates that diabetes contributed to his retirement. The Board acknowledges that the opinion relates that the Veteran had arthritis in his knees, "uncontrolled" diabetes and arteriosclerotic heart disease that "negatively affected his occupational functioning (early retirement)." However, the opinion also states clearly that his service-connected disabilities did not preclude substantially gainful employment, which is the ultimate question in this case. Also, the Board notes that the Veteran asserts that his employment at his wife's business should not preclude entitlement to a TDIU, largely based upon the amount of money he earns there from and that the business is protected. 38 C.F.R. § 4.16(a). In this regard, the Board need not address this question as resolution of the claim does not depend on this question, but rather whether the service-connected disabilities preclude substantially gainful employment. In other words, the Board is not concluding that the Veteran is engaged in substantially gainful employment. In order to obtain a TDIU, the Veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Having reviewed the complete record, the Board concludes that the preponderance of the evidence is against referring the Veteran's claim for a TDIU prior to December 22, 2009, on an extraschedular basis. As noted above, the Board recognizes that the medical evidence of record, including reports of VA compensation and pension examinations, does contain several clinical findings suggesting that his service-connected disabilities impact his ability to work. In this regard, the Board notes that the Veteran's combined 60 percent disability rating prior to December 22, 2009, is a recognition that his industrial capacities were significantly impaired as a result of his service-connected disabilities. However, the Board finds the most probative evidence regarding the issue on appeal to be the report of the February 2013 examination conducted following the Board's remand specifically for the purpose of determining whether the Veteran's service-connected disabilities alone render him unable to work. As discussed, the examiner conducted a thorough physical evaluation, and thoroughly reviewed his treatment records and his employment history, and specifically concluded that his service-connected disorders did not prevent him from obtaining and securing substantially gainful employment. While the Board is certainly sympathetic to the difficulties resulting from his disabilities, the Board finds this opinion, which was based on thorough examination by a competent health care provider, to be the most persuasive evidence of record as to whether or not his disabilities have prevented him from obtaining or sustaining employment. ORDER Entitlement to a TDIU prior to April 27, 2011, is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs