Citation Nr: 1326935 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 10-04 709 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. M. Gillett, Counsel INTRODUCTION The Veteran served on active duty from February 1977 to April 1997. This appeal to the Board of Veterans' Appeals (Board) is from a September 2009 rating decision of the Nashville, Tennessee, Department of Veterans Affairs (VA) Regional Office (RO), which denied increased ratings for service-connected hemorrhoid and hypertension disabilities. In April 2011, as support for his claims, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge of the Board. While testifying, the Veteran indicated he had recently received medical treatment and examinations for his hemorrhoids and hypertension. So, following the hearing, the Board held the record open to allow him time to obtain and submit these additional records, which he did in June 2011. He also waived his right to have the RO initially consider these additional records. 38 C.F.R. §§ 20.800, 20.1304 (2012). The Board subsequently, in August 2011, remanded the claims for higher ratings for his hemorrhoids and hypertension to the RO via the Appeals Management Center (AMC) for further development and consideration - especially to have him reexamined to reassess the severity of these disabilities. In that same decision, the Board dismissed an additional claim for a rating higher than 20 percent for sacro-iliac and thoracic spine dysfunction with degenerative arthritis because the Veteran had withdrawn this other claim at the outset of his hearing. He also had submitted a written statement after the hearing reiterating the withdrawal of this other claim. See 38 C.F.R. § 20.204 (2012). He had the additional VA compensation examination on September 19, 2011 and, after considering the results and other evidence of record, the AMC issued a decision in August 2012 increasing the rating for his hypertension from 10 to 40 percent as of September 19, 2011, the date of that examination. The AMC denied an even higher rating, however, and continued to deny a rating higher than 10 percent for the hemorrhoids. The Veteran continued to appeal, including for an even higher rating for his hypertension. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (indicating that, absent receipt of the highest possible rating or express indication that he is content or satisfied with a lesser rating, albeit higher than what he initially had, it is presumed he is seeking the highest possible rating, so receipt of a rating that is less than the maximum possible rating does not abrogate his appeal). In September 2012 the Board granted a higher 20 percent rating for the hypertension from November 15, 2008 to September 18, 2011; but denied a rating higher than 40 percent for the hypertension since September 19, 2011; and denied a rating higher than 10 percent for the hemorrhoids. So, in the absence of an appeal of those claims to the U. S. Court of Appeals for Veterans Claims (Court/CAVC), those claims are no longer at issue. Also in that September 2012 decision, however, the Board acknowledged a derivative claim of entitlement to a TDIU. 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (2012). See also Rice v. Shinseki, 22 Vet. App. 447 (2011). But as this derivative TDIU claim needed to be developed before being decided, the Board remanded this claim to the RO via the AMC. In a January 2013 VA medical examination report, provided by the AMC in compliance with the Board's September 2012 remand directive, a VA examiner diagnosed the Veteran as having erectile dysfunction (ED) secondary to his service-connected hypertension. Although the record contains no indication he has filed a claim of entitlement to service connection for ED, the Board finds this additional claim is raised by the evidence and, therefore, is referring it to the RO for all appropriate development and consideration. FINDING OF FACT The Veteran's service-connected disabilities - which are hypertension, spine dysfunction with degenerative arthritis, chronic folliculitis of the scalp, hemorrhoids, chronic sinusitis, and residuals of hernia repair surgery - are not sufficiently disabling as to prevent him from obtaining or maintaining substantially gainful employment given his prior vocational attainment, work history, and level of education. CONCLUSION OF LAW The criteria are not met for entitlement to a TDIU. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Sup. 2012); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Duties to Notify and Assist the Veteran with this Claim As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). If the claim is for service connection, then this notice should advise the Veteran of all five elements of the claim: (1) Veteran status, (2) existence of a disability, (3) relationship between the disability and military service, (4) disability rating, and (5) effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-491 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). This claim at hand did not arise in that context, however, and concerns what amounts to a "downstream" issue since a TDIU claim is also a claim for increased compensation, so on the premise the Veteran already has service-connected disability or disabilities. See Hurd v. West, 13 Vet. App. 449 (2000). That is, a claim for a TDIU is akin to claims for higher ratings for the service-connected disabilities forming the basis of the derivative TDIU claim since the Veteran, in effect, is alleging he is totally disabled on account of these disabilities in that they render him unemployable and therefore entitle him to compensation at the greater 100-percent rate. A claim for a TDIU "presupposes that the rating for the [service-connected] condition is less than 100 [percent], and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." See Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). Thus, seeing as though this TDIU claim is in actuality a type of increased-compensation claim, the VCAA notice need only address the claim in this way. In Vasquez-Flores v. Peake, 22 Vet. App. 37 (2008), the Court (CAVC) clarified VA's notice obligations in increased-rating claims, which, again, includes a claim for a TDIU. But on appeal the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) vacated the lower Court's holding, indicating "generic" VCAA notice is all that is required, so VA does not have to notify a Veteran of alternative diagnostic codes (DCs) or potential "daily life" evidence. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO as the Agency of Original Jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate or incomplete, this timing error can be effectively "cured" by providing any necessary VCAA notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC) - such that the intended purpose of the notice is not frustrated, rather preserved, and the Veteran is given ample opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the U. S. Supreme Court made clear that VCAA notice errors, even if shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis. Moreover, as the pleading party attacking the agency's decision, the Veteran, not VA, has this burden of proof of not only establishing error, but also, above and beyond that, of showing how it is unduly prejudicial, meaning outcome determinative of his claim. Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in December 2012. Indeed, when remanding this derivative TDIU claim in September 2012, the Board specifically had indicated as one of the remand directives that he needed to be provided VCAA notice concerning this claim. And the letter he resultantly received informed him of the evidence required to substantiate his claim, as well as of his and VA's respective responsibilities or obligations in obtaining this supporting evidence. He also was informed of how VA assigns disability ratings and effective dates, so concerning these "downstream" issues. Moreover, although that December 2012 letter was not sent prior to initially adjudicating his underlying increased-rating claims in the September 2009 decision at issue that prompted this appeal, this derivative TDIU claim, which the Board recognized and acknowledged during the pendency of this appeal on its own initiative, since has been adjudicated in a March 2013 SSOC. Hence, this claim has been considered since providing all required notice such that the provision of the notice, to the extent it did not precede the initial adjudication of the underlying increased-rating claims, has been rectified ("cured"). See again Mayfield and Prickett, supra. VA also has a duty to assist the Veteran in the development of this claim. This duty includes assisting him in the procurement of service treatment records (STRs) and pertinent post-service treatment records, whether from VA or elsewhere (privately, etc.) and providing an examination when necessary to fairly decide the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Board finds that all necessary development has been accomplished, and therefore appellate review of this claim may proceed without prejudicing him. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO/AMC has obtained his STRs, as well as his post-service VA treatment records. He also was provided several VA compensation examinations in May 2009, September 2011, and most recently in January 2013 as a result of the Board's September 2012 remand of this derivative claim assessing and reassessing the severity of his service-connected disabilities that form the basis of this claim. The January 2013 VA medical examination report also contains a medical opinion concerning whether his service-connected disabilities, including in combination, render him unemployable so as to in turn warrant entitlement to a TDIU. As the Court pointed out in Friscia v. Brown, 7 Vet. App. 294, 297 (1994), and, indeed, as the Board acknowledged when remanding this claim in September 2012, the Board may not reject a claim for a TDIU without producing evidence, as distinguished from mere conjecture, showing the Veteran can perform work that would produce sufficient income to be other than marginal. See, too, Ferraro v. Derwinski, 1 Vet. App. 362, 331-32 (1991). The January 2013 VA medical examination report obtained on remand is adequate and probative for VA compensation purposes because the examiner relied on sufficient facts and data, provided rationale for the opinion rendered, and since there is no reason to believe the VA examiner did not reliably apply reliable scientific principles to the facts and data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Additionally, the Veteran has been provided a hearing before a Veterans Law Judge of the Board, during which he presented oral argument in support of his claims for higher ratings for his hypertension and hemorrhoids, from which this claim for a TDIU derives, and was allowed opportunity, after the hearing to obtain and submit additional supporting evidence. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2011) requires that the Veterans Law Judge chairing a hearing fulfill two duties to comply with this VA regulation. These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked and that may be potentially advantageous to the claimant's position. Here, during the April 2011 videoconference hearing the presiding Veterans Law Judge explained the type of evidence needed to substantiate the increased-rating claims and, as mentioned, held the record open following the hearing to allow the Veteran time to obtain and submit supporting evidence, which he later did and waived his right to have the RO, as the AOJ, initially consider it. 38 C.F.R. §§ 20.800, 20.1304 (2012). See, too, Haney v. Nicholson, 20 Vet. App. 301 (2006) (When a Veterans Law Judge at a hearing exercises discretion to leave the record open for the appellant to submit evidence pursuant to 38 C.F.R. § 20.709, the VLJ must set a deadline as to how long the record will remain open, and if such deadline is not set at the hearing, fair process requires the Board to subsequently set a deadline by which the record will close and notify the appellant of that deadline before the claim can be adjudicated). During the hearing the presiding Veterans Law Judge and the Veteran's representative asked specific questions directed at identifying whether the Veteran had certain specified symptoms meeting the schedular criteria for higher ratings. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) in the conducting of the hearing, nor have they identified any prejudice in the conducting of the hearing. The hearing focused on the elements necessary to substantiate the underlying increased-rating claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of these elements necessary to substantiate his claims. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative demonstrating an awareness of what is necessary to substantiate the claim). As such, the Board finds that, consistent with Bryant, the presiding Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Significantly, neither the Veteran-appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of this claim that has not been obtained and that is obtainable. When responding to the March 2013 SSOC, the Veteran's representative affirmed they had no further argument. See Statement of Accredited Representative in Appealed Case (VA Form 646). He also indicated on an accompanying Statement in Support of Claim (VA Form 21-4138) that they were waiving the 30-day waiting period they had for responding to that SSOC, preferring instead to have the claim decided as soon as possible. Hence, no further notice or assistance is required to fulfill VA's obligations in the development of this claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). So, in summary, the Board finds it difficult to discern what additional guidance VA could have provided the Veteran regarding what further evidence he should submit to substantiate this claim. He has received all essential notice and assistance, has had a meaningful opportunity to participate in the development of the claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In deciding this claim, the Board has reviewed all of the evidence in the claims folders - both in the physical claims file and electronic ("Virtual VA") file. Increasingly more, the Virtual VA paperless claims processing system is being utilized, instead of paper. It is a highly secured electronic repository used to store and review every document involved in the claims process. The use of this system allows VA to leverage information technology in order to more quickly and accurately decide a Veteran's claim for benefits. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no requirement to discuss each and every piece of evidence, certainly not in exhaustive detail. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as concerning this claim. Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Board must assess the credibility and weight of all evidence, so both the medical and lay evidence, to determine its ultimately probative value, accounting for evidence that it finds persuasive or unpersuasive and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, meaning about evenly balanced for and against the claim, with the Veteran prevailing in either event, or whether instead the preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Merits of the Claim The schedular rating criteria are designed to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the Rating Schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. A total disability evaluation may be assigned where the schedular evaluation is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2012). It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reasons of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director of the Compensation and Pension (C&P) Service, for extra-schedular consideration of all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). The rating board will include a full statement as to the Veteran's service-connected disabilities, employment history, educations and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Court referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Court indicated there is a need to discuss whether the standard delineated in the controlling regulations is an "objective" one based on the average industrial impairment or a "subjective" one based upon the Veteran's actual industrial impairment. In a pertinent precedent decision, VA's General Counsel concluded that the controlling VA regulations generally provide that Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. As further observed by VA's General Counsel, "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment (i.e., work that is more than marginal, permitting him to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment, for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment." 38 C.F.R. § 4.16(a). See also Moore (Robert), 1 Vet. App. at 358. That is, a Veteran may be considered as unemployable upon termination of employment that was provided on account of disability or in which special consideration or accommodation was given on account of the same. See 38 C.F.R. § 4.18. Marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold. Id. Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop. Id. Requiring a Veteran to prove that he is 100 percent, i.e., totally unemployable is different than requiring he prove that he cannot maintain substantially gainful employment. The use of the word "substantially" suggests intent to impart flexibility into a determination of the Veteran's overall employability, whereas a requirement that a Veteran prove 100-percent unemployability leaves no flexibility. See Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). While the regulations do not provide a definition of "substantially gainful employment," VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), defines the term as "that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Also, in Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as "an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income...." As already alluded to, in a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, showing the Veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). That said, to receive a TDIU, it is equally worth repeating that the Veteran's service-connected disabilities, alone, must be sufficiently severe to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Court also clarified in Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), that the disability rating, itself, is recognition that industrial capabilities are impaired. So, above and beyond this, the record must reflect some factor that takes a particular case outside the norm in order for a claim for individual unemployability benefits to prevail. As the Court further explained in Van Hoose, the mere fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. In determining whether the Veteran is entitled to a TDIU, neither his non-service connected disabilities nor his advancing age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). See also Fanning v. Brown, 4 Vet. App. 225 (1993); Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993); and Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992). The test of individual unemployability is whether the Veteran, as a result of his service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation that is consistent with his level of education, prior work experience, and training. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. Turning now to the relevant facts of this particular case. In determining whether this Veteran is eligible for TDIU benefits, the Board sees that he is service connected for hypertension, currently rated as 40-percent disabling; spine dysfunction with degenerative arthritis, currently rated as 20-percent disabling; chronic folliculitis of the scalp, currently rated as 10-percent disabling; hemorrhoids, currently rated as 10-percent disabling; chronic sinusitis, currently rated as 10-percent disabling; and residuals of hernia repair surgery, currently rated as 50-percent disabling. So his combined rating for these disabilities is 70 percent. See 38 C.F.R. § 4.25 (VA's Combined Ratings Table). Therefore, as his disabilities are rated in combination as 70-percent disabling, with at least one, namely, his hypertension, rated as 40-percent disabling, his disabilities meet the schedular rating requirements for consideration of a TDIU. See 38 C.F.R. § 4.16(a). That is to say, he does not have to resort to being considered for this benefit on an extra-schedular basis under the alternative provisions of § 4.16(b). Yet, the Board finds that the evidence on the whole weighs against concluding that his service-connected disabilities are sufficiently incapacitating to prevent him from obtaining or maintaining substantially gainful employment. In fact, he has been employed as a police officer for over 15 years since his discharge from service and he has made no contentions this position is not "substantially gainful employment". In the lay evidence of record, although he has claimed some difficulties at work, he has not specifically argued that his service-connected disabilities have rendered him unable to maintain his current employment or that it is only marginal. In an April 2009 lay statement, he reported that he was experiencing back pain episodes of increasing severity related to his service-connected spinal disability. He explained that, during such an episode of back pain, he would experience difficulty with walking on patrol, entering and exiting his patrol car, and "backing up" his fellow police officers. He said his neck would become stiff while driving his patrol car, causing him difficulty with turning his body. He indicated that on days when he did not want to work on patrol duty due to a back pain episode, he would either call in sick or ask to be placed on limited duty, taking reports over the telephone. In an April 2009 lay statement, offered in support of the claims for increased ratings for his service-connected disabilities, the Veteran's supervisor stated that the Veteran experienced difficulties climbing into and out of his patrol car due to his back pains. The supervisor also indicated the Veteran had to take an "overwhelming number of sick days concerning back pains." Despite these difficulties, the supervisor wrote that the Veteran was a "fine patrolman" and made no comments indicating the Veteran's service-connected disabilities prevented him from maintaining his employment as a police officer. In another April 2009 lay statement, a coworker indicated the Veteran was no longer able to perform work-related duties that required standing for long periods of time due to his back disability. The coworker also stated the Veteran was regularly bothered by pain stemming from his hemorrhoids. Yet, this coworker also made no comments indicating the Veteran's service-connected disabilities prevented him from maintaining his employment as a police officer. The Veteran also reported experiencing difficulties working due to his service-connected disabilities to various VA examiners during the pendency of this appeal. For example, in a May 2009 VA spine examination report, the Veteran reportedly stated that his spine disability caused him difficulty in performing work-related duties, such as walking on patrol or chasing down a suspect. In a June 2009 sinus examination report, the Veteran stated that his service-connected sinusitis impaired his ability to smell alcohol or marijuana on a suspect, requiring him to sometimes call for a backup officer with a better sense of smell. In a February 2013 VA medical examination report, the Veteran reportedly stated that his service-connected spine disability caused him the most difficulty at work. He said that he would experience flare-ups of low back pain with lifting objects, and during rainy or cold weather. Yet, he indicated that he was employed as a police officer and had only taken sick days over the previous year for treatment of a nonservice-connected kidney ailment. Therefore, these lay statements only at most indicate the Veteran experiences difficulty with his employment - at least partly because of his service-connected disabilities - not that he necessarily is unemployable, even incapable of obtaining and maintaining his current substantially gainful job. To reiterate, the ratings he has for his service-connected disabilities presume they have effect on his employment, including in the ways he has mentioned. 38 C.F.R. §§ 4.1, 4.15. The only notation suggesting that any of his service-connected disabilities would prevent him from continuing to maintain his current employment as a police officer was a comment made by a VA examiner in a September 2011 VA hypertension examination report. In that report, the VA examiner indicated the Veteran then currently was taking two medications for control of service-connected hypertension. Upon examination, the VA examiner observed the Veteran's blood pressure was markedly high. In view of those readings, the VA examiner had the Veteran escorted to the emergency room to have his hypertension medications adjusted (increased). In detailing whether the Veteran's service-connected hypertension would have any effect on his ability to work, the VA examiner wrote that it would as the Veteran would have to avoid strenuous physical exertion until his blood pressure was under better control with medication. The remaining record of evidence, however, does not contain any findings by medical personnel indicating the Veteran's service-connected disabilities, including his hypertension (albeit assuming if properly treated with sufficient medication) would prevent him from maintaining his employment. As noted above, in the other VA medical examination reports, VA examiners noted the Veteran's reports of difficulties with work due to his service-connected disabilities, but did not add any notations indicating that such difficulties would result in an inability to maintain his current employment. Moreover, in January 2013, VA provided the Veteran a VA medical examination to determine whether his service-connected disabilities precluded him from obtaining or maintaining substantially gainful employment. In the report of this examination, the VA examiner noted reviewing the claims file as well as performing an objective physical examination of the Veteran. Having done so, the VA examiner wrote that the Veteran's hypertension (albeit controlled by the use of four medications), hemorrhoids, sinusitis, residuals of hernia repair surgery, and folliculitis did not render him unable to obtain or maintain gainful employment at either a physical or sedentary job. The VA examiner indicated the Veteran was still employed at his job of the previous 15 years (so referring to his job as a police officer), and that he did not suggest that his illnesses would render him unable to maintain that job. The VA examiner noted the Veteran had used 30 days of sick leave over the past 12 months, but also noted that was done for treatment of nonservice-connected kidney stones (so the "kidney ailment" earlier mentioned). Therefore, although one VA examiner indicated in September 2011 that the Veteran would need to have his medication adjusted before he could resume strenuous physical exertion, so presumably including especially at his job as a police officer, this apparently since has occurred since he now apparently takes four medications rather than the previous two. And he apparently has been able to continue working successfully with this adjustment. So the medical evidence, on the whole, indicates his service-connected disabilities have not rendered him unable to obtain or maintain substantially gainful employment at either a physical or sedentary job. Moreover, although he and his coworkers have indicated that his service-connected disabilities cause some difficulties with his current job, which he has held for over a decade, neither he nor his coworkers have stated that he has been rendered unemployable due to his service-connected disabilities. Accordingly, the preponderance of the evidence, both lay and medical, is against entitlement to a TDIU. Consequently, the benefit-of-the-doubt rule does not apply, and this claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102; 4.3; Gilbert, 1 Vet. App. at 55. ORDER The claim of entitlement to a TDIU is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs