Citation Nr: 1329346 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 12-31 926 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for concussion, residuals of a head injury. 2. Entitlement to a total disability rating, for compensation purposes, based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty from May 1958 to May 1960. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of the Reno, Nevada, Department of Veterans Affairs (VA) Regional Office (RO). In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. These documents have been reviewed in conjunction with this appeal. In May 2013, the Board denied the Veteran's claims of increased ratings for right eye disability and headaches and remanded the remaining issues for further development. In a July 2013 rating decision, the Veteran was awarded service connection for a cerebral vascular accident, secondary to his service connected concussion. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Throughout the pendency of this appeal, the Veteran's concussion, residuals of head trauma have been characterized by no more than level 1 impairment in any of the facets of TBI delineated in the "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified" table. Specifically, his residuals of TBI have included memory loss; difficulties with concentration; mildly impaired judgment; occasionally inappropriate social interaction; occasional disorientation to one of the four aspects of orientation; mildly impaired visual spatial orientation; dizziness, tinnitus, frequent insomnia, and hypersensitivity to light, which mildly interferes with work, instrumental activities of daily living, or work, family, or other close relationships; and anxiety and impaired mood, without interference with workplace or social interactions. There is no evidence of impaired motor activity, communication, or consciousness. 2. The competent and credible evidence does not show that the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for concussion, residuals of a head injury, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.124a, Diagnostic Code (DC) 8045 (2013). 2. The criteria for entitlement to TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.16, 4.19, 4.25 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield, 444 F.3d 1328; see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran's concussion claim arises from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. The Veteran was sent a letter in December 2011 that provided information as to what evidence was required to substantiate the TDIU claim and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file. These files together comprise the claims file. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. In compliance with the Board's May 2013 remand, VA provided the Veteran with a medical examination in June 2013. Ultimately, this examiner found that the Veteran's February 2012 stroke was related to his head injury and a separate award of service connection for this disability was granted. See July 2013 rating decision. Thus VA has complied with the May 2013 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the 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). Concussion The Veteran was originally service connected for concussion, residuals of head injury in a March 2009 rating decision, which awarded a 10 percent rating, effective October 23, 2008. The Veteran appealed that initial evaluation. See May 2009 Notice of Disagreement. Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Separate periods of time based on the facts found - a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007) (VA's determination of the present level of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending). Under Diagnostic Code 8045, there are three main areas of dysfunction that may result from a traumatic brain injury (TBI) and have profound effects on functioning: cognitive (which is common in varying degrees after a TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a, DC 8045. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In a given individual, symptoms may fluctuate in severity from day to day. VA is to evaluate cognitive impairment under the table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified" (hereinafter "Not Otherwise Classified Table"). Subjective symptoms may be the only residual of a TBI or may be associated with cognitive impairment or other areas of dysfunction. Subjective symptoms that are residuals of a TBI, whether or not they are part of cognitive impairment, should be evaluated under the subjective symptoms facet in the Not Otherwise Classified Table. However, any residual with a distinct diagnosis, such as migraine headache or Meniere's disease, that may be evaluated under another diagnostic code must be separately evaluated, rather than under this Table; even if that diagnosis is based on subjective symptoms. See 38 C.F.R. § 4.124a. VA is to evaluate emotional/behavioral dysfunction under 38 C.F.R. § 4.130 (Schedule of ratings-mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, evaluate emotional/behavioral symptoms under the criteria in the Not Otherwise Classified Table. VA is to evaluate physical (including neurological) dysfunction based on the following list, under an appropriate diagnostic code: motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. The preceding list of types of physical dysfunction does not encompass all possible residuals of a TBI. For residuals not listed in 38 C.F.R. § 4.124a, DC 8045, that are reported on an examination, VA is to evaluate under the most appropriate diagnostic code. Each condition is to be evaluated separately, as long as the same signs and symptoms are not used to support more than one evaluation, and combine under 38 C.F.R. § 4.25 the evaluations for each separately rated condition. The evaluation assigned based on the Not Otherwise Classified Table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. Diagnostic Code 8045 instructs that VA should consider the need for special monthly compensation for such problems as loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance (including for protection from hazards or dangers incident to the daily environment due to cognitive impairment), being housebound, etc. The Not Otherwise Classified Table contains 10 important facets of a traumatic brain injury related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, labeled "total." Not every facet has every level of severity, however. The consciousness facet, for example, does not provide for an impairment level other than "total," since any level of impaired consciousness would be totally disabling. A 100 percent evaluation is assigned if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," the overall percentage evaluation is assigned based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, a 70 percent evaluation is assigned if 3 is the highest level of evaluation for any facet. There may be an overlap of manifestations of conditions evaluated under the Not Otherwise Classified Table with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. 38 C.F.R. § 4.124a, DC 8045 Note (1). In such cases, do not assign more than one evaluation based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, assign a separate evaluation for each condition. Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation. 38 C.F.R. § 4.124a, DC 8045 Note (2). "Instrumental activities of daily living" refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one's own medications, and using a telephone. 38 C.F.R. § 4.124a, DC 8045 Note (3). These activities are distinguished from "Activities of daily living," which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. The terms "mild," "moderate," and "severe" traumatic brain injury, which may appear in medical records, refer to a classification of a traumatic brain injury made at, or close to, the time of injury rather than to the current level of functioning. 38 C.F.R. § 4.124a, DC 8045 Note (4). This classification does not affect the rating assigned under DC 8045. In his lay statements, the Veteran has reported headaches, psychiatric symptoms, right-sided head pain, tremors in left hand, and stroke related to his head injury. In February 2008, the Veteran underwent a VA neurological disorders examination in conjunction with his headache claim. At that time, his motor exam, sensory exam, mental status, and reflexes were all normal. In March 2009, the Veteran underwent a VA examination in conjunction with this claim. At that time, the Veteran denied a history of seizures, weakness, paralysis, autonomic dysfunction, malaise, neurobehavioral change, bowel problems, bladder problems, erectile dysfunction, speech/swallowing difficulty, decreased sense of taste or smell, endocrine dysfunction, or cranial nerve dysfunction. The Veteran did report symptoms of headaches; dizziness once or twice a day lasting for up to one hour; balance problems beginning 8 to ten years earlier due to his degenerative disc disease; daily neck pain; "no feeling" in the fingers of his left hand; insomnia due to joint pain and resulting in restless sleep; fatigue during the day necessitating naps two or three times a week; sorrow; anxiety; rare transient suicidal thoughts, but not intent or plan; mild memory problems; left ear hearing difficulty; and sensitivity to sunlight. Motor examination found normal strength, muscle tone, and muscle bulk. Sensory examination found normal light touch, pin prick, vibratory sense, and position sense. His reflexes were normal. His cerebellar exam was normal. Although there was no objective evidence on testing, the Veteran reported mild memory loss and impairment of attention, concentration, or executive functions. His judgment, motor activity, visual spatial orientation, and consciousness were all normal. His social interactions were routinely appropriate. He was always oriented times four. He reported multiple subjective symptoms that mildly interfered with work; instrumental activities of daily living; or work, family, or other close relationships. He was able to communicate by and comprehend both written and spoken language. The Veteran's score on the Mini-Mental Status Exam was 26/30 due to impairment of his serial sevens and occasional word-finding difficulty. During the Neurobehavioral Symptom Inventory, the Veteran endorsed moderate to very severe symptoms. The "very severe" symptoms included headaches, sensitivity to light, difficulty falling or staying asleep, feeling anxious or tense. The "severe" symptoms included loss of balance, poor coordination, nausea, vision problems, numbness, poor concentration, and fatigue. In his responses to the Beck Depression Inventory, the Veteran endorsed severe symptoms of depression, including sleeping less, sadness, pessimism, past failure, loss of pleasure, guilty feelings, loss of energy, decreased appetite, concentration difficulty, fatigue, and loss of interest in sex. He reported mild suicidal ideation, but denied intent or plan. In his responses to the Beck Anxiety Inventory, the Veteran reported severe symptoms including wobbliness in legs, trembling hands, and fear of dying. In a March 2009 addendum, the examiner clarified that the Veteran did not have a separate and distinct mental disorder related to his trauma. Additionally, the Veteran denied one or more neurobehavioral effects that interacted with his workplace interaction or social interaction. A June 2009 VA psychiatric evaluation note shows the Veteran's complaints of anxiety. He reported having mood problems for the prior 30 years. Specifically, the Veteran reported mood symptoms, depression, anxiety, panic attack, nightmares, disrupted sleep, and anger/avoidance/hyperarousal. Ten years prior to this note the Veteran had been prescribed medication by a private provided for his anxiety symptoms. The Veteran's mood was sad. His recent memory was impaired in that he was "forgetful at times." He reported flashbacks and nightmares. His judgment, insight, and impulse control were all fair. The VA provider diagnosed the Veteran with mood disorder due to TBI with mixed features. In June 2011, the Veteran underwent VA examinations in conjunction with his claims, including concussion. This examination noted that his concussion condition had stabilized. At that time, he reported memory loss, vision loss, headaches resembling migraine headaches, frequent dizziness, decreased attention, difficulty concentrating, difficulty with executive functions, erectile dysfunction, and tingling in both ears. He had no ear symptoms, no complaints of tinnitus, no weakness or paralysis, no paresthesias, no numbness, no poor coordination, no speech difficulty, and no other neurologic symptoms. There was no history of seizures, pain, autonomic dysfunction, numbness, paresthesias or other sensory changes, weakness or paralysis, malaise, psychiatric symptoms, neurobehavioral change, bowel problems, bladder problems, hypersensitivity to light/sound, speech/swallowing difficulty, decreased sense of taste or smell, endocrine dysfunction, or cranial nerve dysfunction. Similarly, he had no history interpersonal relationship difficulties, depression, panic, attacks, substance abuse, memory problems, loss of control/violence potential, homicidal symptoms, anxiety, confusion, sleep impairment, suicidal symptoms, or other psychiatric symptoms. Psychiatric examination found normal affect, mood, judgment, and comprehension of commands. He had no obsessive behavior, hallucinations, or delusions. He reported that he was unable to sleep more than a few hours at night and was chronically tired. The Veteran's score on the Mini-Mental Status Exam was 28. The Veteran reported balance, coordination, and mobility problems in that he relied on a walker or wheelchair to ambulate. His gait was abnormal in that he was unsteady, wobbly, and very sluggish. Neurological examination found normal coordination, orientation, speech, and cranial nerve function; but found mild memory loss. Romberg's sign was negative. Motor examination was normal with normal muscle tone and no atrophy. His cerebellar exam was normal and no carotid bruits were present. Sensory examination found normal light touch, pin prick, vibration, and position sense. He had no dysesthesias. The June 2011 examiner determined that the Veteran's cognitive impairment and other residuals consisted of subjective complaints of mild memory loss without objective evidence of such on testing, mildly impaired judgment, occasionally inappropriate social interaction, occasional disorientation, and mildly impaired visual spatial orientation. His motor activity and consciousness were normal. His subjective symptoms did not interfered with work; instrumental activities of daily living; or work, family, or other close relationships. He had one or more neurobehavioral effects that did not interfere with workplace interaction or social interaction. He was able to communicate by and comprehend both written and spoken language. In a September 2011 addendum, the VA examiner found that the Veteran's dizziness was subjective, his altered gait could not be due to his traumatic brain injury, and that he was capable of taking care of his financial management, but preferred to let his wife take care of it. In this regard that the Veteran has been separately service connected for headaches associated with his right eye disability, evaluated as 30 percent disabling effective March 23, 2007. Similarly, the July 2013 VA examiner found that it was at least as likely as not that the Veteran's stroke was the result of his service connected concussion, residuals of head injury. In a July 2013 rating decision, the Veteran was awarded a separate 10 percent rating for this disability. Additionally compensation for the same symptoms is to be avoided as impermissible pyramiding. 38 C.F.R. § 4.14. Accordingly, evaluation of the Veteran's headache symptoms and stroke due to his service-connected TBI is not required. Based on the above, the Veteran's residuals of traumatic brain injury most nearly approximate the criteria for the current 10 percent evaluation. His associate cognitive impairment is characterized by subjective complaints of memory loss and difficulties with concentration, but there is no objective evidence of this on testing. Therefore, that facet is level 1. See 38 C.F.R. § 4.124a, Diagnostic Code 8045. The June 2011 examiner found mildly impaired judgment, occasionally inappropriate social interaction, occasional disorientation to one of the four aspects of orientation, and mildly impaired visual spatial orientation. The additional evidence of record does not corroborate this level of impairment in these facets. Nevertheless, the Board resolves doubt in favor of the Veteran and assigns each facet level 1. There is no evidence of moderately impaired judgment, frequently inappropriate social interaction, occasional disorientation to two of the four aspects of orientation, frequent disorientation to one of the four aspects of orientation, or moderately impaired visual spatial orientation. Thus assignment of the next higher level of impairment for any of these facets is not warranted. See id. The Veteran's subjective symptoms are inconsistently reported but include dizziness, tinnitus, frequent insomnia, and hypersensitivity to light. These symptoms mildly interferes with work, instrumental activities of daily living, or work, family, or other close relationships. Again, the separately evaluated headaches cannot also be considered as part of his subjective symptoms without violating the prohibition against pyramiding. Thus, his symptoms are sufficient to qualify as level 1 impairment of this facet, but not the next higher level as there is no evidence of moderate interference with work, instrumental activities of daily living, or work, family, or other close relationships. See id. The Veteran's mood symptoms were associated with his TBI in June 2009, but the March 2009 VA examiner specifically found that the Veteran did not have a distinct mental disorder related to his trauma and the June 2011 VA examiner found no psychiatric symptoms. As such, a service connection for a separately diagnosed psychiatric disability has not been established and the Veteran's psychiatric symptoms are considered as part of his neurobehavioral effects facet. To the extent that the Veteran has exhibited anxiety and impairment of mood, the record does not show interference with workplace or social interactions due to these symptoms. As such, this facet is evaluated as level 0 impairment. There is no evidence of impaired motor activity, communication, or consciousness. Therefore, each of these facets is deemed to exhibit level 0 impairment. See id. For the reasons and bases delineated above, the highest level of impairment for any facet is level 1, which is the equivalent of a 10 percent disability evaluation. Id. Therefore, the Veteran's symptoms warrant a 10 percent evaluation and entitlement to an increase evaluation is not warranted. The preponderance of the evidence is against a rating higher than the current 10 percent for the Veteran's concussion, residuals of a head injury. 38 C.F.R. § 4.7. Extraschedular Considerations The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service- connected disability or disabilities." 38 C.F.R. § 3.321(b)(1). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation is not inadequate. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected disabilities and for associated disabilities with distinct diagnoses, as is the case with the separate evaluations for headaches and stroke, but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorder. As the rating schedule is adequate to evaluate the disabilities, referral for extraschedular consideration is not in order. TDIU Total disability ratings for compensation may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Disabilities resulting from a common etiology or a single accident, or from multiple injuries incurred in action, or from multiple disabilities incurred as a prisoner of war, may be considered on a combined basis for the purposes of establishing one 60 percent disability, or one 40 percent disability rating. 38 U.S.C.A. § 4.16(a)(1). The Veteran is service connected for right eye traumatic iridoplegia, headaches, concussion, and cerebral vascular accident all interrelated and attributable, in varying degrees, to his in-service injury while playing baseball in April 1959. As such, these disabilities can be combined. As of October 23, 2008, these disabilities reach a combined 60 percent evaluation. See 38 C.F.R. § 4.25. Thus, as of that time, the record effectively establishes a lone disability, for TDIU purposes, rated as at least 60 percent disabling due to sharing a common etiology. Thus, the Veteran has one disability rated at 60 percent and meets the minimum percent rating requirement of 38 C.F.R. § 4.16(a). Consequently, the schedular standards for consideration of a TDIU under 38 C.F.R. § 4.16(a) are met. The remaining question is whether these disabilities render the Veteran unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. In determining whether the Veteran is unemployable, consideration may be given to his education, training, and special work experience, but not to his age or to impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 1.419; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Therefore, the additional functional impairments due to his non-service connected health problems are not considered for the purpose of establishing TDIU. The record shows that the Veteran has not been employed since 1989. At that time, he retired due to a non-service connected back disability. Moreover, the record repeatedly references this non-service connected disability in regards to the Veteran's inability to work. As noted above, TDIU requires not only that the Veteran be unable to secure or follow a substantially gainful occupation, but also that this unemployability be a result of his service-connected disabilities. To that end, the April 2011 VA examiner found that the Veteran's migraines did not prevent him from engaging in physical or sedentary work, but rather his non-service connected back disability rendered him unemployable, noting the Veteran's long history of headaches and his simultaneous employment until he had to stop working due to his back disability. The July 2011 VA examiner found that the Veteran was unable to perform any time of physical or sedentary employment due to concussion, residuals of head injury; right eye traumatic iridoplegia, macular degeneration, and pseudophakia; and abnormal gait needing continuous use of walker or wheelchair. As this opinion considered both the Veteran's service connected and non-service connected disabilities, it was not useful for the purpose of determining entitlement to TDIU and clarification was requested. In a September 2011 addendum, the VA examiner specifically found that traumatic brain injury (TBI) was not a reason for unemployability. Likewise, headache and partial eye blindness were not reasons for unemployability. He further found that the Veteran's altered gait could not be not be due to his traumatic brain injury. Similarly, in a March 2012 addendum, another VA examiner concurred that the concussion, residuals of head injury, right eye traumatic iridoplegia, macular degeneration, and pseudophakia were not severe enough to cause individual unemployability without consideration of non-service connected disabilities. Instead, he noted that the service connected conditions would restrict the Veteran from performing work that critically requires three dimensional vision or commercial driving. The evidence does not include a finding that the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Again, the record does show that the Veteran is unemployable, but has repeatedly related that unemployability to a non-service connected back disability. Therefore the Veteran is not found to be unemployable for the purposes of establishing entitlement to TDIU and an award of TDIU is not warranted here. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to an evaluation in excess of 10 percent for concussion, residuals of a head injury, is denied. Entitlement to TDIU is denied. ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs