Citation Nr: 1333568 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 05-25 272A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a rating in excess of 40 percent for left foot amputation. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: John F. Cameron, Attorney ATTORNEY FOR THE BOARD K. Kordich, Senior Counsel INTRODUCTION The Veteran served on active duty from September 1967 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In a December 2009 decision, the Board, among other things, denied a rating in excess of 40 percent for left foot amputation. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court), and in a September 2012 Memorandum Decision, the Court set aside and remanded that portion of the December 2009 Board decision that denied a rating in excess of 40 percent for left foot amputation. In the September 2012 Memorandum Decision, the Court affirmed the Board's December 2009 decision denying service connection for congestive heart condition, entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the left lower extremity, and entitlement to compensable ratings for right ear hearing loss and amoebic abscess of the liver. The issue of entitlement to an effective date earlier than March 10, 2004 for the grant of service connection for peripheral neuropathy of the left lower extremity was remanded by the Board in December 2009 for the issuance of a statement of the case (SOC) in accordance with Manlincon v. West, 12 Vet. App. 238 (1999). In a separate February 2012 Board decision the claim for an effective date earlier than March 10, 2004 for the grant of service connection for peripheral neuropathy of the left lower extremity was denied. That matter is no longer before the Board. The Veteran's representative suggests that the Veteran believes he is unable to retain substantially gainful employment, in part due to his service-connected left below-the-knee amputation. See the August 16, 2013 letter submitted by the Veteran's attorney. Such a claim has not been developed by the RO. However, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. As such, the issue is now properly before the Board. See Rice, supra. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. The symptoms associated with the Veteran's left foot amputation more closely approximates amputation not improvable by prosthesis controlled by natural knee action. 2. The Veteran's service-connected disability meets the percentage requirements for the award of a schedular TDIU, and his service-connected left foot amputation prevents him from obtaining and retaining substantially gainful employment CONCLUSIONS OF LAW 1. The criteria for a 60 percent rating for left foot amputation have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.321, 4.3, 4.68, 4.71a, Diagnostic Codes 5164, 5165 (2013). 2. Resolving all reasonable doubt in the Veteran's favor, the criteria for a TDIU are met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2013)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claims; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VA's notice requirement applies to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). With regard to a claim for an increased disability rating for a service-connected condition, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Florez v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Finally, the notice must provide examples of the types of medical and lay evidence that the veteran may submit (or ask the VA to obtain) that are relevant to establishing her or his entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular veteran's circumstances; that is, VA need not notify a veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Sec'y of Veterans Aff., 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. In this appeal, in an October 2008 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for entitlement to an increased rating for left foot amputation, as well as what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. The October 2008 letter did not include adequate notice of how the effective date for any increased disability rating for the left knee amputation on appeal would be assigned. As explained below, the Board is granting an increased rating for the disability. The Board trusts that the RO will provide the Veteran with any due process notice in this regard when the case is before it for implementation of this decision. If any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran has been continuously represented by an attorney and has submitted argument in support of his claim. These arguments have referenced the applicable law and regulations necessary for a grant of an increased rating for the claim. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claim and is not prejudiced by a decision in this case. Consequently, a remand to provide notice as to how initial ratings and effective dates are assigned is not necessary. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters on appeal. Pertinent medical evidence associated with the claims file consists of VA treatment records and the reports of November 2003, January 2005, and November 2008 examinations, private treatment reports and examinations, and journal articles. The Board has reviewed the reports of the examinations, and finds that they are adequate. Also of record and considered in connection with the appeal are various written statements submitted by the Veteran, his spouse, a co-worker and friend, and his representative. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices from the RO, the Veteran has been notified and made aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claims herein decided. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant. However, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102 (2013). Left Foot Amputation Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. In this case, the Veteran has been assigned a 40 percent rating under Diagnostic Code 5165 for amputation at a lower level of the knee, permitting prosthesis. 38 C.F.R. § 4.71a, Diagnostic Code 5165 (2013). The Veteran contends that the current 40 percent rating does not accurately reflect the severity of his current condition. Amputation of the leg at a lower level permitting a prosthesis will be rated as 40 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5165 (2013). Amputation of the leg not improvable by prosthesis controlled by natural knee action will be rated as 60 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5164 (2013). As will be discussed in greater detail below, review of the pertinent lay and medical evidence indicates that disability associated with the Veteran's right below-the-knee amputation more closely approximates amputation of the leg not improvable by prosthesis controlled by natural knee action, pursuant to Diagnostic Code 5164. See Butts v. Brown, 5 Vet. App. 532, 538 (1993); Pernorio v. Derwinski, 2 Vet. App. 625 (1992). A November 2003 VA treatment record notes the Veteran's lower extremity muscle strength as 5/5, with no muscle atrophy, but with a left leg stump with callous formation on the anterior portion. The plan was for a prosthetic consult for the left lower leg. A June 2004 VA treatment record notes that there was no weakness in the left leg, and that the Veteran moved all extremities well. Examination revealed no edema, cyanosis, or clubbing of the extremities; a left-below-the knee amputation with prosthesis was noted. A January 2005 VA examination notes that the Veteran's amputation involved primarily his forefoot with some retention of the heel. He had problems with his stump being occasionally sore as well as calluses on the anterior part of the foot. The pain in his foot ranged from four to 10 on a scale of 10, and was primarily worsened by walking and bumping the heel area. He reported some improvement with pain killers and nonsteroidal anti-inflammatories. He reported that two days out of a week he had such severe pain that he was unable to walk. He reported using a cane for additional help, and reported occasional swelling but no other problems such as erythema or infection. On examination there was tenderness over the heel portion. A callus on the anterior portion was noted. The diagnosis was left foot amputation with moderate impairment primarily related to chronic pain secondary to it and to hypersensitivity. The examiner stated that it could be related to neuroma or other problems. A January 2005 VA examination report for neurological disorders documents complaints of a sensitive left leg. It was noted that the Veteran had multiple foot orthotics over the years. On examination there was full active and passive range of motion in all extremities. There was normal bulk and tone throughout. The strength was 5/5 throughout. There was an antalgic gait noted. The report of a November 2008 VA examination notes that the Veteran underwent an amputation of the entire left foot subsequent to a gunshot wound injury in Vietnam. He complained of a chronic stabbing pain in the leg "like when you hit your funny bone." There was a painful callus noted on the stump. The Veteran reported that he sometimes could not ambulate for days when it flared up. He reported that he had received prosthetic services from the VA, but that most prostheses he had gotten were so painful he could not bear to wear them. The chronic left leg pain extended midway up the lower leg. He denied redness, significant swelling, warmth, open sores, streaks, or drainage. He reported taking Motrin for the pain. Motor examination revealed muscle atrophy with 3-4/5 strength of atrophied musculature distal to the knee. Hip and knee strength were both 5/5. The examiner stated that the hardened callus of the anterior aspect of the stump, combined with localized phantom pain, appear to be solely responsible for the left lower extremity pain, and that it caused general discomfort of the ankle and distal leg area, but not in a neuropathic sense. There was no skin breakdown or evidence of cellulitis. There was redundant unaffected tissue of the posterior aspect of the stump. There were no tremors, tics, or other abnormal movements. Gait and balance were not normal; gait was antalgic and there was slow propulsion. It was noted that the Veteran complained of weakness, pain, and impaired coordination of the left lower leg/stump. Sensory function report revealed normal pain and normal light touch. Vibration and position senses were not tested. It was noted that the examiner was "unable to test" these aspects. Left knee reflex was 1+. The examiner found that, after examining the Veteran and conducting tests, the findings were not consistent with peripheral neuropathy. The Veteran submitted three journal articles regarding lower extremity amputation, to include psychosocial recovery, functional outcomes, and sensory problems. None of the articles directly addresses the Veteran's symptoms. Medical treatise evidence, however, can provide important support when combined with an opinion of a medical professional. Mattern v. West, 12 Vet. App. 222, 228 (1999). In an August 2013 statement from P.N.G., M.D., he noted that he had last examined the Veteran and rendered a disability assessment in June 2013. Dr. P.N.G. stated that the Veteran presently uses a left prosthetic leg that is 17 years old. He used this particular prosthetic leg because the stump fits best in it. The physician noted that the Veteran had a couple of other better quality prosthetic legs made, but they irritated his stump considerably and could not be modified to give him a good fit, even after a number of attempts. It was the physician's opinion that the Veteran's stump was not improvable by any prosthesis controlled by natural knee action indicating there were multiple reasons. Dr. P.N.G. noted the Veteran suffered permanent nerve damage at the site of the gunshot wound, and that the stump becomes raw and extremely painful when prosthesis is used more than a few minutes. The Board finds that the evidence of record demonstrates that the Veteran's left below-the-knee amputation more closely approximates the criteria for an amputation of the leg not improvable by prosthesis controlled by natural knee action and, as such, a 60 percent rating under Diagnostic Code 5164 is appropriate. Initially, the Board notes that 38 C.F.R. § 4.68 provides that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed. As an example, 38 C.F.R. § 4.68 notes that the combined evaluations for disabilities below the knee shall not exceed the 40 percent evaluation, Diagnostic Code 5165. Given the clear intent of Diagnostic Code 5164 to afford individuals with amputation of the leg as opposed to the thigh (i.e. below the knee) a 60 percent rating for amputation of the leg not improvable by prosthesis controlled by natural knee action, the Board concludes that a 60 percent rating for the Veteran's left below the knee amputation is for application and, in this case, is warranted. In reaching that conclusion, the Board notes that the Veteran has been fitted for multiple prostheses and none have permitted him to return to normal ambulation with the use only of the prosthesis. Dr. P.N.G. opined that the Veteran's stump was not improvable by any prosthesis controlled by natural knee action. The physician noted the Veteran suffered permanent nerve damage at the site of the gunshot wound and that the stump becomes raw and extremely painful when prosthesis is used more than a few minutes. Given the ongoing problems with the fit of the Veteran's prostheses and the statement from Dr. P.N.G., the Board concludes that a 60 percent rating is warranted. The Board has taken into consideration the provisions of 38 C.F.R. §§ 4.40 and 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). However, the Board notes that the amputation rule set forth at 38 C.F.R. § 4.68, and as discussed above, provides that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed. Thus, as the provisions of 38 C.F.R. § 4.71a limit the combined rating for the Veteran's left below-the-knee amputation to 60 percent, the currently assigned 60 percent disability is the maximum scheduler rating that can be assigned. Therefore, as a matter of law, the Veteran cannot be granted a scheduler disability evaluation in excess of 60 percent for the disability at issue. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In reaching that conclusion, the Board acknowledges that under Diagnostic Code 5000 findings of osteomyelitis can afford an appellant up to a 100 percent rating. In this case, however, there is no medical evidence of osteomyelitis and there is no other evidence of record to suggest the existence of osteomyelitis during the appellate time period. As such, a higher rating under Diagnostic Code 5000 is not warranted. Based on the foregoing, the Board concludes that the Veteran's left foot amputation symptomatology most closely meets the criteria for a 60 percent rating. As the Veteran's symptoms have been consistent throughout the appellate time period, staged ratings are not warranted. Hart, 21 Vet. App. at 505. Extra-schedular Considerations The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extra-schedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2013). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of Compensation Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected left below-the-knee amputation are inadequate. A comparison between the level of severity and symptomatology of the Veteran's left-below-the knee amputation with the established criteria shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology during all applicable appellate periods. Specifically, the Veteran experiences pain, pressure, and the feeling of swelling in his stump when wearing his prosthesis. Most importantly, the Veteran's disability is now rated under the criteria for an amputation where it is not improvable by prosthesis controlled by natural knee action. The precise reason for that higher rating is that the reported pain, pressure and swelling have resulted in a condition where a prosthesis controlled by natural knee action is not feasible. Thus, under the facts of this case, the Veteran's symptoms are in fact contemplated by the scheduler criteria, which do not concern themselves with the precise reason why the amputation is not improvable by prosthesis. Thus, the currently assigned 60 percent rating for left foot amputation fully, under Diagnostic Code 5164, contemplates the reported symptomatology. In short, the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. TDIU Under the applicable criteria, total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In this case, the Veteran meets the objective, minimum percentage requirements, set forth in 38 C.F.R. § 4.16(a), for award of a schedular TDIU, as service connection is in effect for left foot amputation (rated as 60 percent disabling as of this Board decision); accordingly, there is a single service-connected disability ratable at 60 percent or more. Thus, the remaining question is whether the Veteran's service-connected disability, in fact, renders him unemployable. See 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, supra. The Board also points out that, in adjudicating a claim for a VA benefit, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See generally 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In an August 2013 statement, the Veteran stated that he worked as a nursing assistant at a VA Medical Center and was required to do a lot of walking, lifting, and standing. He indicated that in October 1997 he accepted disability retirement from the VA Medical Center due to the continuing problems with his left foot amputation. An August 2013 statement from Dr. P.N.G. noted that during the Veteran's examination, he stated it had become very difficult to work approximately nine years ago. He was a nursing assistant at the VA hospital and had great difficulty working the last year or two of his career. The Veteran stated he could no longer walk the halls and that his legs could not take it. He last worked there in October 1997 and took disability retirement through the Federal government due to the residuals of his amputation. In summary, Dr. P.N.G. stated that due to the Veteran's permanent residuals of his amputation, he was very limited as to the time he could sit, stand, and walk. He noted that the Veteran may occasionally lift up to twenty pounds, but no more, and could not use his feet for repetitive movements such as pushing and pulling of leg controls. The Veteran would not be able to bend, squat, crawl, or climb. The Veteran would have total restriction from unprotected heights, being around moving machinery, exposure to marked changes in temperature and humidity, and driving automotive equipment. Dr. P.N.G. noted that while the Veteran was required to take medications for his pain, drug side effects could be expected to be severe and to limit effectiveness due to distraction, inattention, and drowsiness. The physician opined that the Veteran would be restricted and unable to function at a productive level of work for gainful employment on a sustained basis due to the residuals of his left foot amputation. An August 2013 statement from C.Y., a Vocational Expert from Vocational Management Services, Inc., indicated that the Veteran graduated from high school and later took some courses in bookkeeping and accounting, but was hired at the VA Medical Center and dropped out of school, never to use the classes that he took. C.Y. noted that due to the Veteran's residuals of his left foot amputation, he had permanent limitations. It was noted that the Veteran had difficulty walking more than short distances or standing more than 30 minutes during an 8 hour day and no more than 10 minutes at a time, due to his prosthesis. He noted that, when sitting, the Veteran has to elevate his leg, or it will swell and cause increased pain. The Veteran reported he could not lift even 10 pounds occasionally. C.Y. stated that the Veteran's permanent restrictions were vocationally significant and the Veteran cannot have a job where focus and concentration are required. He cannot walk, and when he sits, he has to have his leg elevated. C.Y. indicated that the Veteran's service-related restrictions eliminate the occupational base for unskilled, entry level work. It was noted that since the Veteran had no transferrable skills, these were the only jobs that he was qualified for. He concluded that it is as likely as not that the Veteran is unable to secure or follow a substantial gainful occupation as a result of his service-related disabilities. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). A medical opinion may not be discounted solely because the examiner did not review the claims folder. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, Dr. P.N.G. and C.Y. both had the opportunity to interview and evaluate the Veteran concerning his employability. The evidence indicates that the Veteran took medical disability retirement from the VA Medical Center in October 1997 and both Dr. P.N.G. and C.Y. opined that the Veteran was unable to secure or follow a substantial gainful occupation as a result of his service-connected left foot amputation. A finding that TDIU is warranted must be based on the individual veteran's situation. Here, the competent medical evidence of record supports that the Veteran is precluded from engaging in substantially gainful employment as a result of his service-connected left foot amputation. The Veteran's left foot amputation is rated as 60 percent disabling, which is indicative of significant impairment. The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91. The critical issue is whether the Veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In this case, the evidence reflects that the Veteran's left foot amputation presents significant obstacles with respect to the Veteran's employability, essentially rendering him unemployable as defined for VA purposes. The evidence clearly shows that the Veteran cannot obtain and maintain employment which requires walking, lifting, bending, carrying, or prolonged sitting and standing. The evidence shows that he does not have experience with sedentary employment, or an educational background which would easily be applied to sedentary employment. Additionally, his sedentary employment would have to allow for elevating his leg. The benefit of the doubt rule is therefore for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Thus, the Board finds that the Veteran is entitled to TDIU. In conclusion, for the reasons and bases expressed above, the Board finds that the Veteran is entitled to a TDIU. The benefit sought on appeal is accordingly granted. ORDER Entitlement to a 60 percent rating for left foot amputation is granted, subject to the laws and regulations governing the payment of monetary awards. Entitlement to a TDIU is granted, subject to the laws and regulations governing the payment of VA compensation. ____________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs