Citation Nr: 1333861 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 06-34 477A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Lawrence Stokes, Jr., Agent WITNESSES AT HEARING ON APPEAL The Veteran and L.S. ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from October 1986 to February 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. A Travel Board hearing was held at the RO in August 2008 before a Veterans Law Judge and a copy of the hearing transcript has been added to the record. After the Veterans Law Judge who held the Veteran's Board hearing in August 2008 subsequently retired from the Board, the Veteran was notified of his right to another Board hearing before a different Veterans Law Judge in June 2012 correspondence. The Veteran did not respond. Thus, his hearing request is deemed satisfied. See 38 U.S.C.A. § 7107 (West 2002); 38 C.F.R. § 20.707 (2013). The Veteran testified at his August 2008 Travel Board hearing that he had lost his job at the U.S. Postal Service due to symptomatology associated with his service-connected Meniere's syndrome. He also testified that he currently was unemployed and unable to maintain employment due to this service-connected disability. In a January 2009 decision adjudicating other unrelated claims, the Board inferred a TDIU claim based on these statements and referred this claim to the RO for appropriate action. In January 2010, the Board concluded that, in light of the United States Court of Appeals for Veterans Claims (Court) intervening decision in Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), a TDIU claim properly was before the Board. The Board then remanded the Veteran's TDIU claim to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development. In August 2012, the Board again remanded this matter to the RO/AMC. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. The RO/AMC was directed to refer the Veteran's TDIU claim to the Director, Compensation and Pension (C&P) Service, for consideration of extraschedular entitlement to a TDIU. See 38 C.F.R. § 4.16(b) (2013). The RO referred this claim to the Director, C&P Service, in April 2013. The Director responded in May 2013 with a decision denying the Veteran's claim of entitlement to a TDIU on an extraschedular basis. A copy of the Director's decision is associated with the Veteran's claims file. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). In a May 2013 rating decision, the RO assigned a higher 10 percent rating effective November 21, 2011, to the Veteran's service-connected pes planus of the right foot and denied his increased rating claims for sinusitis, tinea versicolor and pseudofolliculitis barbae (PFB), tinnitus, and for allergic rhinitis. The RO also denied the Veteran's claims of service connection for gastroesophageal reflux disease (GERD) and for an upper respiratory infection. In an August 2013 rating decision, the RO denied the Veteran's claim of service connection for migraine and tension headaches. Because there is no indication in the record before the Board that these claims have been appealed, the claims adjudicated in these rating decisions are not before the Board. See 38 U.S.C.A. § 7105(b)(1) (West 2002); 38 C.F.R. § 20.302(a) (2013). The issues of entitlement to a disability rating greater than 30 percent for Meniere's syndrome and whether a January 6, 1998, rating decision, which denied a claim of service connection for motion sickness with vertigo, was the product of clear and unmistakable error (CUE) ("CUE claim") have been raised by the record but has not been adjudicated by the agency of original jurisdiction (AOJ). The Veteran's representative filed a CUE claim in October 2011 correspondence and also filed an increased rating claim for Meniere's syndrome at the RO in June 2012 correspondence. The Board previously referred the increased rating claim for Meniere's syndrome back to the RO in its August 2012 remand. To date, the RO has not taken any action on the increased rating claim for Meniere's syndrome. Given the foregoing, the Board does not have jurisdiction over either of these claims and they are referred to the AOJ (in this case, the RO) for appropriate action. FINDINGS OF FACT 1. Service connection is in effect for Meniere's syndrome, evaluated as 30 percent disabling effective July 20, 2005; tinnitus, evaluated as 10 percent disabling effective July 20, 2005; sinusitis, evaluated as 10 percent disabling effective November 8, 2007; tinea versicolor and PFB, evaluated as 10 percent disabling effective November 8, 2007; pes planus of the right foot, evaluated as 10 percent disabling effective November 21, 2011; and for allergic rhinitis, evaluated as zero percent disabling effective November 8, 2007. The Veteran's combined disability evaluation for compensation is 50 percent effective November 8, 2007. 2. The Veteran reported in March 2013 that he was employed as a civilian contractor for the U.S. Department of Defense. 3. The Veteran's service-connected disabilities do not preclude him from securing or maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process and Duties to Notify and Assist Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. In letters issued in June 2010 and in April 2011, VA notified the Veteran of the information and evidence needed to substantiate and complete his claim, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b)(1) (2013); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The June 2010 and April 2011 letters specifically informed the Veteran to submit evidence demonstrating that his service-connected disabilities interfered with his employability and noted other types of evidence the Veteran could submit in support of his claim. The Veteran also was informed of when and where to send the evidence. After consideration of the contents of these letters, the Board finds that VA has satisfied substantially the requirement that the Veteran be advised to submit any additional information in support of his TDIU claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Additional notice of the five elements of a service-connection claim was provided in the June 2010 and April 2011 VCAA notice letters, as is now required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As will be explained below in greater detail, the evidence does not support granting the Veteran's TDIU claim, including on an extraschedular basis. Because the Veteran was fully informed of the evidence needed to substantiate this claim, any failure of the RO to notify the Veteran under the VCAA cannot be considered prejudicial. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Veteran also has had the opportunity to submit additional argument and evidence and to participate meaningfully in the adjudication process. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). With respect to the timing of the notice, the Board points out that the Court has held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a Veteran before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. See Pelegrini, 18 Vet. App. at 112. As discussed in the Introduction, the Veteran's TDIU claim was inferred from his August 2008 Travel Board hearing testimony. This claim could not have been adjudicated in the initial unfavorable AOJ decision issued in January 2006 because the Veteran did not contend that he was entitled to a TDIU prior to his Travel Board hearing in August 2008. Following his Travel Board hearing in August 2008, the Veteran's TDIU claim subsequently was adjudicated by the RO/AMC in an October 2011 statement of the case and in supplemental statements of the case issued in December 2011 and in May 2013. Because the Veteran's TDIU claim is being denied in this decision, including on an extraschedular basis, any question as to the appropriate effective date is moot. See Dingess, 19 Vet. App. at 473. And any defect in the timing or content of the notice provided to the Veteran and his agent has not affected the fairness of the adjudication. See Mayfield, 444 F.3d at 1328. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to give testimony before the RO and the Board. As noted in the Introduction, the Veteran did not respond to a letter advising him of his right to another Board hearing before a different Veterans Law Judge. It appears that all known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise. The Veteran's Virtual VA claims file has been reviewed. The Veteran's complete Social Security Administration (SSA) records also have been obtained and associated with the claims file. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ noted the basis of the prior determination and noted the element of the claim that was lacking to substantiate the claim for benefits. Although the VLJ did not indicate that a TDIU claim currently was on appeal at the August 2008 hearing, the Veteran testified about the impact of his service-connected disabilities on his employability and a TDIU claim was inferred from this testimony. The Veteran was assisted at the hearing by an accredited representative from The American Legion, his then-service representative, and by his Agent. The representative and the VLJ then asked questions to ascertain whether the Veteran had submitted evidence in support of his TDIU claim. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the TDIU claim. The representative specifically asked the Veteran about the impact of his service-connected disabilities on his employability. Moreover, neither the Veteran nor his Agent has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) nor identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the element necessary to substantiate the claim and the Veteran, through his testimony, demonstrated that he had actual knowledge of the element necessary to substantiate his claim for benefits. The Veteran's representative and the VLJ asked questions to draw out the evidence which demonstrated the impact of his service-connected disabilities on his employability, the only element of the claim in question. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that any error in notice provided during the Veteran's hearing constitutes harmless error. The Veteran has been provided with VA examinations which address the impact of his service-connected disabilities on his employability. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Given that the pertinent medical history was noted by the examiners, these examination reports set forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations. Thus, the Board finds the examinations of record are adequate for rating purposes and additional examination is not necessary regarding the claim adjudicated in this decision. See also 38 C.F.R. §§ 3.326, 3.327, 4.2 (2013). In summary, VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA. II. Merits of the Claim The Veteran contends that he is entitled to a TDIU, including on an extraschedular basis. He specifically contends that his service-connected Meniere's syndrome, along with his other service-connected disabilities, prevent him from securing or maintaining substantially gainful employment. Law and Regulations 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 (West 2002). "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 (2013). A Veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16 (2013). A total disability rating may be assigned where the schedular rating 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). Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2013). Where a Veteran is unemployable by reason of his or her service-connected disabilities, but they fail to meet the percentage standards set forth in § 4.16(a), TDIU claims should be submitted to the Director, C&P Service, for extraschedular consideration. 38 C.F.R. § 4.16(b). The Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance. Instead, the Board must refer any claim that meets the criteria for referral for consideration of entitlement to TDIU on an extraschedular basis to the Director, C&P Service. Bowling v. Principi, 15 Vet. App. 1 (2001). 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 (Dec. 17, 1991). The 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 a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that 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). In determining whether the Veteran is entitled to a TDIU, neither his nonservice-connected disabilities nor his age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Court has held that the central inquiry in determining whether a Veteran is entitled to a total rating based on individual unemployability is whether service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). 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 which is consistent with his education and occupational experience. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. Factual Background The Veteran testified at his August 2008 Travel Board hearing that his "daily living has changed" due to worsening symptomatology that he attributed to his service-connected Meniere's syndrome. He also testified that "some days I can't even get out of bed. I'm so incapacitated that I have to have assistance when I got to the bathroom or I keep a trashcan beside the bed when I, [sic] after eating because nothing is going to stay down." He testified further that "there are days, there has been years [sic] since my discharge I haven't worked...for years my condition kept me from having gainful employment. Last year I lost a job at the postal service due to my condition because I couldn't perform my job in an efficient manner." As noted elsewhere, the Board inferred a TDIU claim based on this testimony in January 2009 and then remanded it to the RO/AMC for appropriate action in January 2010 and in August 2012. The record evidence shows that, in August 2002, the Florida Department of Education, Division of Vocational Rehabilitation, concluded in a "Preliminary Assessment" that the Veteran had identified several "impediments to employment." According to this report: [The Veteran] reported that his condition [chronic vertigo] causes the room to spin, hearing loss, dizziness, and nausea. [The Veteran] stated that noise and heat trigger[] an attack. [The Veteran's] limitations include loud noise, plane and elevator rides (ride can precipitate an attack), no climbing, no use of dangerous equipment, and balancing. Based on the above limitations, [the Veteran] can no longer perform the duties required by his previous employment[]. On private outpatient treatment with A.D., M.D., in October 2005, this clinician noted that the Veteran's physical examination "is unremarkable and he continues, though he struggles, to be functional through each of these episodes" of acute intermittent vertigo. In a December 2005 letter, C.R., M.D., stated that he had treated the Veteran between January and May 2005 "for exacerbation of vertigo and tinnitus. As a result, [the Veteran] was placed on bed rest for several days. Currently, he is feeling quite well and I [have] seen him for follow up care." On VA outpatient treatment in February 2006, the Veteran reported that he worked a few hours a week "and mostly spends time [doing] chores at home." He also reported that he was employed part-time as a mechanic. In an August 2006 letter included in the Veteran's VA outpatient treatment records, a VA staff physician stated that the Veteran had reported experiencing "unpredictable episodes of motion and balance problems that last minutes to hours and you estimate that there are [more than] 50 days [per] year in the last few years when the symptoms make it unsafe for you to get out of bed most of the day." On VA outpatient treatment in May 2007, the Veteran stated "he has been lucky that many of his spells of 'spinning & nausea' occur on weekend[s] or when off work." He also stated that he worked 3 days a week "and has not missed [work] in a while." He experienced 2-3 spells per month "but some months none." In a September 2007 opinion, C.N.B., M.D., stated that the Veteran "should be assigned a subcode for his unemployability due to his medical problems as he has not made any substantial income for many years due to his service related medical problems. It is my opinion that he can not be employed in any occupation full time due to the problems associated with his numerous service induced medical problems." On VA vocational rehabilitation consult in August 2008, a VA vocational rehabilitation specialist stated that the Veteran "reported he is still employed, working as an auto body technician." The Veteran also reported that he was interested in pursuing VA vocational rehabilitation "towards a degree in the Criminal Justice field and possibly work as a probation officer." In an August 2008 statement, the Veteran's wife stated: My husband has been suffering with chronic vertigo for approximately 20 years. He has been unable to keep a steady job due to his condition. At least twice a week he is in bed complaining of severe dizziness and ringing in his ear. It is so bad at times he is unable to perform any duties around the house. I have to even escort him to the bathroom because he is unable to walk. In an October 2008 note included in the Veteran's VA outpatient treatment records, a VA staff physician stated, "I see no reason medically why [the Veteran] could not work with neurology or pain specialist...and get symptoms under control." He also stated that the Veteran was encouraged to focus on treatment "that helps him stay functional and 'on the job.'" In a February 2009 statement, Dr. A.D. stated that the Veteran was taken off work on December 22, 2008, and had not been released to return to work. His restrictions were listed as "chronic debilitating migraine/Meniere's disease." Dr. A.D. also stated that the Veteran would be on restricted duty for 6 months due to "[r]ecurrent symptoms. There is a change in progression of his disease." On private outpatient treatment with Dr. A.D. in June 2009, it was noted that the Veteran reported that he had been on Family & Medical Leave Act leave since December 2008 for his Meniere's syndrome and migraine headaches. It also was noted that the Veteran was participating in a VA vocational rehabilitation program but the clinician was "unable to discern if this has been completed." It was noted further that the Veteran had been "found fit for the recruit training program of the Florida Dept. of Law Enforcement. It is unclear if the [Veteran] actually completed this training or if he is currently working. I am unable to determine if he had an improvement in his medical conditions that led to his eligibility for the law enforcement training program." In a July 2010 statement, the Veteran's agent contended that the Veteran had been unable to work since December 2008 due to his service-connected Meniere's disease. This agent also contended that the Veteran experienced "severe exacerbations at least one time per month" due to this service-connected disability and "he is unable to work for four to seven days" during these episodes. A review of the Veteran's VA Form 21-8940, completed in July 2010 and attached to the Agent's statement, indicates that the Veteran contended that his service-connected Meniere's syndrome prevented him from securing or following any substantially gainful occupation. This disability had affected his full-time employment in December 2008 when he last had worked and became too disabled to work. In August 2010, SSA denied the Veteran's application for SSA disability benefits. On private outpatient treatment in October 2010, Dr. A.D. stated, "Meniere's disease is a terrible and debilitating disease with no cure and limit[s] his ability to qualify for certain jobs or career opportunities." In an April 2011 note included in the Veteran's VA outpatient treatment records, a VA staff physician stated that the Veteran "has felt that he has two distinct syndromes: (1) wakes up with vertigo spells [that] last hours to days [and] (2) during the day intense headache spells [that] last hours to days. I suspect they are both part of migraine syndrome." The Veteran reported experiencing 6 spells per month "interfering with career as trainee for probation officer." The Veteran also reported that he "expect[s] to be doing the job in about 2 [years]." The Veteran reported further that he had an "understanding with the training program and he gets extra time for work since [he] misses [a] few days" every month "with vertigo or migraine spells." Following VA examination in June 2011, the VA examiner diagnosed the Veteran as having migraine headaches, pes planus, GERD, mitral valve prolapse, rhinitis/sinusitis, PFB, and Meniere's syndrome. This examiner stated that the Veteran's migraine headaches would affect his usual occupation because it would cause increased absenteeism and pain. The Veteran reported that he had worked as a mechanic but was currently not employed. He also reported that he had been unemployed since December 2008 because "his doctor told him he should not work due to health conditions." The VA examiner opined that the Veteran's migraine headaches were less likely than not caused by or a result of his service-connected Meniere's syndrome. The rationale for this opinion was a review of the Veteran's medical records, test results, consultant reports, and current examination findings. All of this evidence indicated that the Veteran's service-connected Meniere's syndrome and his migraine headaches "are separate disease entities." This examiner stated further that the Veteran's service-connected rhinitis/sinusitis and GERD "have minimal impacts on physical or sedentary employment." He also stated further that the Veteran's service-connected tinea versicolor and PFB "cause no significant impacts on physical or sedentary employment." This clinician opined that the Veteran's service-connected pes planus "causes limitations on maximal mobility distances but cause no significant impacts on either light physical or sedentary activities." He finally opined that the Veteran's service-connected Meniere's syndrome "causes episodic vertigo and therefore it would be unwise for him to pursue activities requiring continuous good balance, working from heights, climbing, or other activities where his episodic symptoms could place him at risk. Sedentary activities largely [unaffected], except it is estimated that he will periodically use some sick leave time when he is very symptomatic." In an April 2012 letter, Dr. A.D. stated: To this date, [the Veteran] has not been able to be gainfully employed. He has presented me with a log showing [] episodes of vertigo and migraine headaches. In my opinion the frequency has significantly impacted his overall quality of life and means of financially supporting himself and his family, working on a consistent basis. Dr. A.D. also stated that his clinical evaluation of the Veteran "remains unchanged." Dr. A.D. stated further that the Veteran had "a chronic intermittent and debilitating disease." Following VA audiology examination in January 2013, the VA examiner diagnosed the Veteran as having clinically normal bilateral hearing. He also concluded that bilateral hearing loss was not present. After noting that the Veteran was not employed, this VA opined that the Veteran's service-connected tinnitus "when considered without regard to other disabilities, does not render an individual unable to perform all types of sedentary and physical types of employment." Following VA foot examination in January 2013, the VA examiner diagnosed the Veteran as having planus pedis of the right foot. This examiner also opined that the Veteran "would be able to have desk jobs [with] minimal walking [but] it would be unwise for him to pursue activities requiring continuous good balance, working from heights, climbing, or other activities with prolonged distance walking." Following VA skin examination in January 2013, the Veteran was diagnosed as having tinea versicolor and PFB. The VA examiner opined that neither of the Veteran's skin disabilities would have any effect on his employability. Following VA sinusitis examination in January 2013, the Veteran was diagnosed as having chronic sinusitis and allergic rhinitis. The VA examiner opined that neither of these disabilities would have any effect on the Veteran's employability. Following VA ear examination in January 2013, the Veteran was diagnosed as having Meniere's syndrome or endolymphatic hydrops. The VA examiner stated that the Veteran's service-connected Meniere's syndrome "cause[d] episodic vertigo and therefore it would be unwise for him to pursue activities requiring continuous good balance, working from heights, climbing, or other activities where his episodic symptoms could place him at risk." Following VA respiratory examination in March 2013, the VA examiner concluded that the Veteran currently did not have and had never been diagnosed as having a respiratory condition. This examiner stated that the Veteran's claimed respiratory condition did not impact his ability to work. The Veteran also reported that "he is employed as a civilian contractor with the [Department of Defense]." Following VA esophageal examination in March 2013, the VA examiner diagnosed the Veteran as having GERD. This examiner stated that the Veteran's GERD did not impact his ability to work. It also was noted that the Veteran currently was employed as a civilian contractor with the Department of Defense. In May 2013, the Director, Compensation Service (formerly Compensation & Pension (C&P) Service), found that entitlement to a TDIU on an extraschedular basis was moot. He noted that, following the Veteran's most recent VA examinations for multiple service-connected disabilities in January and March 2013, his service-connected disabilities did not preclude him from securing and maintaining employment. "The Veteran would be able to perform sedentary work due to his Meniere syndrome, and right foot pes planus condition." Thus, entitlement to a TDIU on an extraschedular basis was denied. Analysis The Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to a TDIU, including on an extraschedular basis. The Veteran contends that his service-connected disabilities preclude him from securing and maintaining substantially gainful employment. The record evidence does not support the Veteran's assertions concerning the impact of his service-connected disabilities on his employability, however. The Veteran has contended alternatively that, because the state of Florida has found him to be unemployable, he is entitled to a TDIU. The Board notes in this regard that it is not bound by any determination of the state of Florida concerning the Veteran's unemployability. First, the Veteran currently does not meet the schedular criteria for a TDIU. See 38 C.F.R. § 4.16(a). Service connection is in effect for Meniere's syndrome, evaluated as 30 percent disabling effective July 20, 2005; tinnitus, evaluated as 10 percent disabling effective July 20, 2005; sinusitis, evaluated as 10 percent disabling effective November 8, 2007; tinea versicolor and PFB, evaluated as 10 percent disabling effective November 8, 2007; pes planus of the right foot, evaluated as 10 percent disabling effective November 21, 2011; and for allergic rhinitis, evaluated as zero percent disabling effective November 8, 2007. The Veteran's combined disability evaluation of 50 percent is insufficient to consider TDIU on a schedular basis. See 38 C.F.R. § 4.25 (2013). Thus, the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a) are not met. Id. The Veteran also is not entitled to a TDIU on an extraschedular basis. See 38 C.F.R. § 4.16(b). Although issues regarding the individual evaluations of the Veteran's service-connected disabilities are not on appeal, the record evidence shows that the current severity of each of the Veteran's service-connected disabilities generally is contemplated by the rating criteria. For example, although the Veteran continues to experience vertigo as a result of his service-connected Meniere's syndrome, the January 2013 VA examiner concluded that the Veteran's vertigo was episodic. There is no indication of hearing impairment with attacks of vertigo and cerebellar gait occurring from 1-4 times a month with or without tinnitus as is required for a higher 60 percent rating under Diagnostic Code (DC) 6205. See 38 C.F.R. § 4.87a, DC 6205 (2013). The Veteran's hearing was normal bilaterally at his most recent VA audiology examination in January 2013. Thus, it appears that the symptomatology associated with the Veteran's service-connected Meniere's syndrome is contemplated within the current 30 percent rating assigned for this disability under DC 6205-6204. See 38 C.F.R. §§ 4.87a, DC 6205-6204 (2013). The Board notes in this regard that a 30 percent rating is the maximum disability rating available under DC 6204. See 38 C.F.R. § 4.87a, DC 6204 (2013). Similarly, the 10 percent rating currently assigned for the Veteran's service-connected tinnitus is the maximum disability rating for tinnitus under DC 6260. See 38 C.F.R. § 4.87a, DC 6260 (2013). The Veteran's service-connected sinusitis is manifested by 3 non-incapacitating episodes of sinusitis in the previous 12 months (as is required for a 10 percent rating under DC 6513). The January 2013 VA examiner noted on physical examination that the Veteran had not experienced any incapacitating episodes of sinusitis requiring prolonged (4-6 weeks) of antibiotics in the previous 12 months. The Board notes in this regard that at least 3 incapacitating episodes of sinusitis within a 12-month period is required for a higher 30 percent rating under DC 6513. See 38 C.F.R. § 4.97, DC 6513 (2013). The January 2013 VA examination report also shows that the Veteran did not experience any compensable disability due to his service-connected allergic rhinitis, to include greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side or nasal polyps. The Board notes in this regard that the minimum 10 percent rating under DC 6522 for allergic rhinitis requires greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side, without polyps. See 38 C.F.R. § 4.97, DC 6522 (2013). Thus, it appears that the symptomatology associated with the Veteran's service-connected sinusitis and rhinitis is contemplated within the current ratings assigned for each of these disabilities. The Veteran's service-connected skin disability (characterized as tinea versicolor and PFB) affects less than 5 percent of the exposed areas of his body, according to physical examination results obtained at his most recent VA skin examination in January 2013. The Veteran reported at that examination that he only had an occasional rash on his chin due to PFB and a persistent rash on his back and upper legs due to tinea versicolor. A higher rating than the 10 percent rating currently assigned under DC 7806 for the Veteran's service-connected skin disability requires at least 20 percent of the exposed areas of the body affected by a skin condition or the use of systemic therapy such as corticosteroids or other immunosuppressive drugs. The Board notes in this regard that a zero percent (noncompensable) rating is assigned under DC 7806 for a skin disability affecting less than 5 percent of the entire body or exposed areas of the body and no more than topical therapy required during the previous 12-month period. See 38 C.F.R. § 4.118, DC 7806 (2013). Because the evidence suggests that the Veteran's current 10 percent rating for his service-connected tinea versicolor and PFB overcompensates him for the level of disability that he currently experiences, the Board finds that the symptomatology associated with this disability clearly is contemplated within the 10 percent rating currently assigned under DC 7806. Id. As the Director, Compensation & Pension Service, noted in his May 2013 decision denying the Veteran's TDIU claim on an extraschedular basis, the record evidence indicates that the Veteran's service-connected pes planus of the right foot is manifested by moderate disability due to pain on manipulation and use of the foot and the weight bearing line falls over or medial to the great toe of the right foot (as seen on VA foot examination in January 2013). No signs of severe or pronounced flatfoot disability were noted at this examination, however, such that a disability rating greater than 10 percent is warranted under DC 5276 for the Veteran's service-connected pes planus of the right foot. See 38 C.F.R. § 4.71a, DC 5276 (2013). Thus, it appears that the symptomatology associated with the Veteran's service-connected pes planus of the right foot is contemplated within the current 10 percent rating assigned for this disability. The Board acknowledges that, in September 2007, Dr. C.N.B. opined that the Veteran was entitled to a TDIU because he was unable to work "due to the problems associated with his numerous service induced medical problems." It is not clear from a review of this report whether Dr. C.N.B. considered both the Veteran's service-connected and nonservice-connected disabilities in preparing his opinion. Dr. C.N.B.'s opinion also is not supported by a review of the record which indicates that, less than one year after this clinician provided an opinion concerning the Veteran's unemployability, the Veteran himself reported to a VA vocational rehabilitation counselor in August 2008 that he was gainfully employed as an "auto body technician." The Veteran also reported in August 2008 that he was interested in pursuing VA vocational rehabilitation "towards a degree in the Criminal Justice field and possibly work as a probation officer." Thus, it appears that Dr. C.N.B.'s September 2007 opinion is based largely on what the Veteran reported to him concerning the impact of his service-connected disabilities on his employability. The Board also acknowledges that, in February 2009, Dr. A.D. concluded that the Veteran would be unable to work for several months due to both his nonservice-connected migraines and his service-connected Meniere's syndrome. This clinician stated in October 2010 that the Veteran's service-connected Meniere's syndrome "limit[s] his ability to qualify for certain jobs or career opportunities." This clinician subsequently stated in April 2012 that the Veteran had been unemployable "to date" due to his service-connected disabilities. Dr. A.D.'s opinions concerning the Veteran's employability are not supported by a review of record, however. Service connection is not in effect for migraines so the impact of any migraine symptomatology on the Veteran's employability may not be considered in evaluating his entitlement to a TDIU. See Van Hoose, 4 Vet. App. at 361. The Board observes in this regard that the June 2011 VA examiner opined that the Veteran's migraine headaches were less likely than not caused by or a result of his service-connected Meniere's syndrome because they were "separate disease entities." This opinion was fully supported by a comprehensive rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). It appears that the Veteran also did not provide an accurate employment history to Dr. A.D. before he stated in April 2012 that the Veteran had been unemployable "to date" as the record clearly shows the Veteran's employment as an auto mechanic, his pursuit of VA vocational rehabilitation training for a degree in criminal justice, and his training as a Florida law enforcement officer. The Court has held that the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). A medical opinion based upon an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). A bare conclusion, even one reached by a medical professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A bare transcription of lay history, unenhanced by additional comment by the transcriber, does not become competent medical evidence merely because the transcriber is a medical professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). The Court also has held that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Thus, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). It appears that the opinions provided by Dr. C.N.B. and by Dr. A.D. concerning the Veteran's unemployability are based on inaccurate factual premises (i.e., that the Veteran was unemployable when, in fact, he was gainfully employed as an auto mechanic), lack a factual predicate in the record, and do not reflect "clinical data or other rationale." Accordingly, the Board finds that these opinions are entitled to little probative value on the issue of whether the Veteran is entitled to a TDIU, including on an extraschedular basis. Critically, the Board notes that multiple VA examiners who evaluated each of the Veteran's service-connected disabilities in June 2011 and in January 2013 all concluded that none of these disabilities prevented him from securing or maintaining substantially gainful employment. The Board recognizes that two examiners opined that the symptomatology associated with the Veteran's service-connected Meniere's syndrome "could place him at risk" due to his episodic vertigo and advised him not to "pursue activities requiring continuous good balance, working from heights, climbing, or other activities." The June 2011 VA examiner also opined that the Veteran's ability to perform sedentary work would not be affected by his service-connected Meniere's syndrome "except it is estimated that he will periodically use some sick leave time when he is very symptomatic." The Veteran himself also reported in March 2013 that he was employed as a contractor for the U.S. Department of Defense. All of this evidence persuasively suggests that the Veteran's service-connected disabilities have not prevented him from securing or maintaining substantially gainful employment. Although the Veteran may have actually been unemployed at times during the pendency of the claim, the question is whether he was precluded from employment as a result of service-connected disabilities, not whether he could find employment. In summary, the Veteran's current combined disability evaluation of 50 percent is insufficient to consider TDIU on a schedular basis. 38 C.F.R. § 4.16(a). The evidence indicates that the Veteran's symptomatology attributable to his service-connected disabilities is contemplated within the currently assigned ratings for each of these disabilities (as discussed above). Nor does the evidence suggest that the Veteran is entitled to a TDIU on an extraschedular basis as he reported as recently as March 2013 that he is gainfully employed and the evidence does not show that he is precluded from securing or maintaining substantially gainful employment as a result of service-connected disabilities. The case was referred for consideration to the Director of Compensation Service who has the authority to award a TDIU on an extraschedular basis. The Director of Compensation Service found that an extraschedular TDIU should not be awarded. Accordingly, the Board finds that the criteria for a TDIU, including on an extraschedular basis, have not been met. 38 C.F.R. § 4.16(b). As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2013). ORDER Entitlement to a TDIU is denied. ____________________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs