Citation Nr: 1336160 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 08-04 134 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to compensation for the additional disability of multiple biliary stones with status-post sphincterotomy and stent with intra-operative cholangiogram with ampullary mass and removal of the gallbladder, as a result of VA medical treatment involving Accutane for a skin disorder, under the provisions of 38 U.S.C.A. § 1151. 2. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from April 1984 to April 1986. This appeal to the Board of Veterans' Appeals (Board) arose from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, which denied the benefits sought. The Veteran appealed from a June 2007 rating decision as to the 38 U.S.C.A. § 1151 claim and from a July 2008 rating decision as to the TDIU claim. In August 2011, the Veteran testified at a hearing before the undersigned Acting Veterans Law Judge (AVLJ) at the RO (Travel Board). A hearing transcript has been associated with the claims file. In April 2012, the Board remanded the Veteran's claims to the RO (via the Appeals Management Center (AMC) in Washington, D.C.) for further action. In May 2013, the Veteran's representative requested a 30 day extension to submit additional evidence in support of the Veteran's appeals. The undersigned AVLJ granted this motion in June 2013. In June 2013, the Veteran submitted additional argument and evidence in support of her appeals. Although the Veteran's representative waived initial RO consideration of any additional evidence in July 2013, such a wavier is not required as this submission was duplicative of argument and evidence that had been previously submitted. 38 C.F.R. § 20.1304 (2013). In her June 2013 statement, the Veteran appears to raise the issues of service connection for a right shoulder disorder and entitlement to a higher rating for dysthymic disorder. The Board notes that the Veteran's petition to reopen a claim for service connection for a right shoulder disorder was denied in an unappealed February 2010 rating decision. Therefore, the Board does not have jurisdiction over these claims and they are referred to the AOJ for clarification and appropriate action. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Virtual VA claims file reveals VA treatment records dated through July 2012; such records were considered in the May 2013 supplemental statement of the case (SSOC). FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each claim herein decided have been accomplished. 2. The preponderance of the competent medical evidence indicates that the Veteran does not have additional disability, namely multiple biliary stones with status-post sphincterotomy and stent with intra-operative cholangiogram with ampullary mass and removal of the gallbladder, as a result of the use of Accutane. 3. The Veteran's service connected disabilities include acne vulgaris with hidradentis suppurativea, rated as 30 percent disabling; dysthymic disorder, rated as 30 percent disabling; a chronic mid and low back musculoligamentous strain, rated as 20 percent disabling; a neck condition, rated as 20 percent disabling; and right and left upper extremity radiculopathy, rated as 10 percent disabling for each extremity; the Veteran's neck disability and dysthymic disorder result from a single accident and combine to 40 percent. 4. The Veteran's combined disability rating is 80 percent. 5. The competent opinion evidence on the question of whether the Veteran is able to secure or follow a substantially gainful occupation as a result of her service-connected disabilities is, at least, in relative equipoise. CONCLUSIONS OF LAW 1. The criteria for compensation benefits, pursuant to the provisions of 38 U.S.C.A. § 1151, for multiple biliary stones with status-post sphincterotomy and stent with intra-operative cholangiogram with ampullary mass and removal of the gallbladder, as result of the use of Accutane for a skin disorder, are not met. 38 U.S.C.A. §§ 1151, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.361 (2013). 2. The criteria for a TDIU are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations 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. 2012) 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). Given the favorable disposition of the claim for TDIU, the Board finds that all notification and development action needed to fairly adjudicate the claim has been accomplished. As for the remaining claim on appeal, the Board points out that 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 claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353 - 23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Id. The Board notes that although section 1151 claims are not service connection claims, disability benefits under that section are awarded as if service connected. 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 (in this case, the RO, to include the AMC) Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 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. Id. In this appeal, an August 2006 pre-rating letter provided notice to the Veteran regarding the information and evidence needed to substantiate her claim for compensation under the provisions of 38 U.S.C.A. § 1151. This letter also informed the Veteran of what information and evidence would be obtained by VA. In addition, a December 2007 post-rating letter provided notice pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. After the issuance of the December 2007 letter, and the opportunity for the Veteran to respond, in January 2008, the RO issued a statement of the case which reflects readjudication of the Veteran's claim for compensation under the provisions of 38 U.S.C.A. § 1151. Hence, the Veteran is not shown to be prejudiced by the timing of this December 2007 letter. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (holding that the issuance of a fully compliant VCAA notification following readjudication of the claim, such as in a statement of the case or supplemental statement of the case is sufficient to cure a timing defect). In addition, the Board notes that there has been no allegation of prejudice from any notice deficiency. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (holding that a party alleging defective notice has the burden of showing how the defective notice was harmful). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent medical evidence associated with the claims file consists of the report of the VA examinations as well as the Veteran's VA treatment records (as requested by the Board in its April 2012 remand), a Social Security Administration (SSA) decision, Office of Personnel Management Civil Service disability retirement records, various private treatment records and a VA examination report (also requested by the Board in its April 2012 remand). See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Also of record and considered in connection with the appeal are various written statements provided by the Veteran and her representative. The Board notes the contention of the Veteran's representative that VA should obtain the medical quality-assurance records related to the Veteran's claim from the VA Medical Center. However, even assuming the existence and pertinence of such records, under 38 U.S.C.A. § 5705, records created as part of the VA's medical quality-assurance program are confidential and access is limited. Pursuant to 38 U.S.C.A. § 5705(b) and its implementing regulations, in part, 38 C.F.R. §17.508(a), neither the adjudicative personnel of the Veterans Benefits Administration nor the personnel of the Board of Veterans' Appeals are listed among the persons authorized access to quality-assurance records. See also VA Adjudication Manual, M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. A, Para. 3, Subpara. i, entitled "Quality Assurance Investigative Reports" (which replaced previous M21-1, Part IV, Chap. 22, Subchap. 1, § 22.03), pertaining to the development of the evidence relating to claims under 38 U.S.C.A. § 1151, citing 38 U.S.C.A. § 5705, the manual instructs that quality-assurance reports are confidential and cannot be used as evidence in the adjudication of claims under 38 U.S.C.A. § 1151. As such, although VA is required under VCAA to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim, in the absence of any specific provisions of the law or regulations that authorize access to quality-assurance records for adjudicative use, the Board notes that it is not required to obtain such records pursuant to the duty to assist. As regards to the Board hearing in August 2011, the Veteran was provided an opportunity to set forth her contentions during the hearing before the undersigned AVLJ. In Bryant v. Shinseki, the United States Court of Veterans Appeals (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the August 2011 hearing, the undersigned AVLJ enumerated the issue on appeal. Also, information was solicited regarding the circumstances of the Veteran's 1995 gallbladder surgery and her use of Accutane. She was asked whether any treatment provider had related her use of Accutane to her gallstones. Therefore, not only was the issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. Id. at 497. As such, the Board finds that, consistent with Bryant, the undersigned AVLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2), and that Board hearing was legally sufficient. The Board also finds that no additional RO action to further develop the record in connection with claim decided herein, prior to appellate consideration, is required. In summary, the duties imposed by the VCAA have been considered and satisfied. The Veteran was notified and made aware of the evidence needed to substantiate this claim, the avenues through which she might obtain such evidence, and the allocation of responsibilities between herself 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 claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Compensation Under the Provisions of 38 U.S.C.A. § 1151 The Veteran contends that the use of prescription Accutane for treatment of her service-connected skin disability aggravated her gallstone condition. She further contends that she never received a June 2004 letter informing her of ultrasound results showing gallstones, that she was not subsequently informed that she had gallstones from her treating physician and that she would not have taken Accutane had she known of her gallstone condition. 38 U.S.C.A. § 1151 affords compensation benefits for a "qualifying additional disability" in the same manner as if the additional disability were service connected. The additional disability qualifies for compensation if the disability is not the result of the Veteran's willful misconduct, and the disability was caused by hospital care, medical or surgical treatment, or examination provided under the laws administered by VA. In order to constitute a "qualifying additional disability," the proximate cause of the additional disability must have been (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the facility furnishing the care, treatment or examination or (2) an event not reasonably foreseeable. 38 U.S.C.A. § 1151. In determining whether a Veteran has additional disability, VA compares the Veteran's condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the Veteran's condition after such care or treatment. 38 C.F.R. § 3.361(b). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the Veteran's additional disability. Merely showing that a Veteran received care or treatment and that the Veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or injury for which the care or treatment was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing medical treatment proximately caused the Veteran's additional disability, it must be shown that the medical treatment caused the additional disability, and that VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or VA furnished the medical treatment without the Veteran's informed consent (in accordance with 38 C.F.R. § 17.32). Whether the proximate cause of a Veteran's additional disability or death was an event not reasonably foreseeable is in each case to be determined based on what a reasonable health care provider would have foreseen. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361(d). Based on a review of the evidence of the record, to include the medical expert's opinion, in light of the governing legal authority, the Board must conclude that entitlement to compensation, pursuant to the provisions of 38 U.S.C.A. § 1151, for additional disability as a result of VA medical treatment involving Accutane for a skin disorder, is not established. An April 2004 VA treatment note reflected the Veteran's complaints of epigastric gain that lasted the entire day, which she believed may be related to eating greasy foods and that she was experiencing stress related to custody issues and paying for a lawyer. An impression of atypical chest pain with questionable anxiety and gastroesophageal reflux disease (GERD) was made and the Veteran was advised to continue to use rabeprazole. A July 2004 VA dermatology treatment note indicated that the possible risks of Accutane were discussed with the Veteran, which were noted to include teratogenecity and the associated need for two forms of birth control, liver abnormalities, dryness, myaglia, bones changes, headaches, vision changes, increases in lipid, alopecia, depression, gastrointestinal upset, bone marrow changes and photosensitivity. VA treatment records contain an electronic copy of a June 2004 letter to the Veteran. This letter indicated that an abdominal echogram performed in June 2004 showed gallstones and that this may be the cause of her abdominal pain. She was instructed to call a particular number if her symptoms persisted or if she was interested in surgery to remove the gallbladder. In February 2005, the Veteran detailed her ongoing "custody battle," stating that she received one hour of visitation per week with her children, that her son "lied about being physically hit by her," and that she owed child support. She reported recent mid-sternal chest pain after lunch and was advised to use omeprazole for 30 days. In April 2005, the Veteran complained of epigastric pain after eating. An impression of questionable cholelithiasis was made. The provider indicated that a general surgery consultation was ordered, that the Veteran was advised to avoid fatty foods and sugars, and that she was to return for treatment is she developed fever/chills or increased abdominal pain. An April 2005 VA emergency room treatment note indicated that the Veteran had presented complaining of gallbladder pain with nausea a week ago and that she "was told a year ago that she had gall stones." An addendum to this notation detailed the Veteran's complaints, including that she was "recently told by her [primary care doctor] that she had a gall stone found last year in June." She subsequently underwent various treatments for her symptoms, culminating in the removal of her gallbladder. During an August 2011 hearing, the Veteran testified that she had been experiencing chest pains, stomach upset and nausea and that her treating physician put her on a stomach acid pill. She underwent an ultrasound in approximately June 2004 and she continued to be ill despite the stomach acid pill. She was also having problems with a cyst and was involved in a "stressful situation with a custody battle" during this time. She had been prescribed Accutane for her skin condition in August 2004 and had used the medication for seven months. She had experienced various side effects of Accutane, including extreme skin dryness and vertigo, and saw her treating physician in April 2005. It was at this appointment that she was first told that she had gallstones. She had been told that Accutane caused liver damage and she believed that her use of Accutane aggravated her gallstone condition. A September 2012 VA examination report reflected the Veteran's complaints that she first began having gastrointestinal symptoms in 2003, which she treated with medication for acid reflux, and that she underwent an ultrasound in the summer 2004 for evaluation of her heartburn and chest pain. She reported that she was going through a divorce at this time, that she did not recall being informed of the results of this ultrasound and was noted to state during the interview that she "may not clearly recall events" from the period. She further reported developing epigastric abdominal pain in March 2005, that she was told she had gallstones in April 2005 and that she subsequently underwent multiple procedures. She also reported that her weight had steadily increased since age 23, that she had a family history of obesity and that her brother had suffered from cholecystitis with jaundice in his mid-40s. The September 2012 VA examiner, following a physical examination and a review of the Veteran's claims file, opined that it was not at least as likely as not that VA treatment of the Veteran's skin condition in 2004 and 2005, to include the use of Accutane, caused any additional disability, to include the aggravation of an existing cholelithiasis condition. The examiner reasoned that cholelithiasis (gallstones) is not a contraindication to treatment for Accutane and that it is a common condition. Further, the examiner indicated that the Veteran's gallbladder disease is more likely due to the risk factors she possessed and that such risk factors included being female, obesity, increased age, a Western diet and a family history of gallstones. The examiner noted all of these risk factors were present in the Veteran's history. Moreover, the examiner opined the Veteran had standard treatment with no evidence of aggravation to her gallbladder disease. The examiner referenced multiple studies in the medical literature which showed that Accutane was not commonly a factor for aggravation of gallbladder disease, that gallstones appeared to be positively associated with elevated serum triglycerides, that the Physicians' Desk Reference did not identify the history or presence of gallstones as a precaution for the use of Accutane and that the risk of complications or the need for surgery is low in patients with gallstones and a single or infrequent episode of pain. As the VA examiner provided a detailed opinion, based on review of the claims file and examination and interview of the Veteran, the Board finds that the above opinion is probative as to the issue of whether the Veteran's use of Accutane in 2004 and 2005 resulted in additional disability, namely multiple biliary stones with status-post sphincterotomy and stent with intra-operative cholangiogram with ampullary mass and removal of the gallbladder. This examiner had access to the claims file and reviewed and considered all pertinent evidence from this file, including VA records. The examiner noted the pertinent history, elicited and described the Veteran's symptoms in detail, and provided a detailed, reasoned analysis of the case. The Board finds that this opinion is highly probative of the question of whether the Veteran suffers from additional disability due to her use of Accutane in 2004 and 2005. Thus, the only competent, persuasive opinion to address the 38 U.S.C.A. § 1151 claim weighs against the claim, and neither the Veteran nor her representative has presented, identified, or even alluded to the existence of any medical opinion that, in fact, supports this claim. The Board notes that the Veteran has claimed that she did not receive results of the June 2004 ultrasound, although she also stated that this time period was stressful in that she was undergoing a divorce and custody battle with her husband. The September 2012 VA examiner opined that she could not determine without resorting to speculation whether the Veteran actually received a copy of the June 2004 ultrasound results, as the letter was documented in the VA electronic file and the Veteran reported during the interview that she was involved in the stress of a divorce around the time the letter was posted to the electronic file. The Board notes that the Veteran has variously claimed that she did not receive the June 2004 letter and that she did not recall receiving the letter. However, assuming arguendo that the Veteran did not receive a copy of the June 2004 letter, such non-receipt would not substantiate her claim as the VA examiner determined that the use of Accutane was "standard treatment" for the Veteran's skin disorder and that there was "no evidence of aggravation to her gallbladder disease" due to its use. As for the Veteran's own assertions, the Board points out that, as a layperson, a veteran is competent to report on matters observed or within his or her personal knowledge (such as being prescribed medication). See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). However, such assertions must be weighed against medical and other pertinent evidence. Cf. Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). Here, the September 2012 examiner considered the Veteran's assertions; however, the persuasive opinion rendered weighs against a finding as to the existence of a current additional disability associated with the use of Accutane in 2004 and 2005, and ultimately, the claim. Furthermore, as for any direct assertions by the Veteran and/or her representative that the Veteran's gallstones were aggravated by the use of Accutane in 2004 and 2005, such evidence provides no basis for allowance of the claim. As indicated above, the matters upon which this claim turns are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the Veteran and her representative are not shown to be other than laypersons without the appropriate medical training and expertise, neither is competent to render an opinion as to whether the Veteran, in fact, suffers from additional disability associated with the use of Accutane in 2004 and 2005, and any such assertions in this regard have no probative value. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998), see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). In other words, the Veteran can neither controvert the opinion of the September 2012 examiner, nor otherwise support the claim, on the basis of lay assertions alone. Accordingly, the Board finds that the preponderance of the evidence weighs against a finding that the Veteran's multiple biliary stones with status-post sphincterotomy and stent with intra-operative cholangiogram with ampullary mass and removal of the gallbladder was aggravated by her use of Accutane in 2004 and 2005. In the absence of evidence establishing that the Veteran's gallbladder disability was aggravated by the use of Accutane in 2004 and 2005, the matters of fault and foreseeability need not be addressed. As the preponderance of the evidence weighs against the fundamental element of the claim herein addressed, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). III. TDIU The Veteran contends that she is unable to maintain employment due to her service-connected disabilities, specifically her cervical and lumbar spine disorders and the associated upper extremity radiculopathy. She also contends that her last employment, which was in a sedentary position at a VA hospital, was terminated due to these disabilities. 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. 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. The Veteran's service connected disabilities include acne vulgaris with hidradentis suppurativea, rated as 30 percent disabling; dysthymic disorder, rated as 30 percent disabling; chronic mid and low back musculoligamentous strain, rated as 20 percent disabling; a neck condition, rated as 20 percent disabling; and right and left upper extremity radiculopathy, rated as 10 percent disabling for each extremity. While none of these disabilities have the required 40 percent rating, the record shows that the Veteran's dysthymic disorder is associated with her neck condition, which the evidence shows is the result of a motor vehicle accident during service. Disabilities resulting from common etiology or a single accident will be considered as one disability for the purposes determining whether or not there is one disability rated as 40 percent disabling, and the dysthymic disorder and neck condition combine to a 40 percent rating. Her combined rating is 80 percent. See 38 C.F.R. § 4.25. This satisfies the statutory requirements for TDIU. See 38 C.F.R. § 4.16(a). With regards to the Veteran's educational and work history, she reported that she had earned an associate's degree in liberal arts in the November 2007 Application for Increased Compensation Based On Unemployability (VA Form 21-8940). She also reported working in customer service at a VA facility through July 2005. A September 2007 SSA decision indicated that her past work experience included work as a sales clerk, a customer service representative, a census taker and an unit clerk and that a vocational expert had testified that the Veteran's past work experience would be "eliminated" given her functional limitations. 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 a 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 a 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). In determining whether a 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 TDIU 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 a 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. Turning to the question of whether the Veteran is able to secure or follow a substantially gainful occupation as a result of her service-connected disabilities, the Board notes that the record contains a several opinions which must be considered and weighed. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (stating that 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). When faced with conflicting medical opinions, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). The first of the positive opinions is reflected in a July 2012 VA treatment note. The Veteran's treating orthopedic surgeon opined that due to the Veteran's multiple orthopedic problems, including cervical and lumbar spine disorders, she cannot perform a job that required prolonged standing or sitting. In addition, the Board notes a March 2007 functional evaluation, which was conducted by a private physician, which found that the Veteran was able to sit, stand or walk for a total of two hours per eight hour work day, and that there will be "a degree of permanency of her symptoms." The Board also notes a June 2006 letter from the Office of Personnel Management which indicated that the Veteran was found to be disabled from her previous position due to her cervical and lumbar spine disorders. In addition, the Veteran was awarded SSA disability benefits due to her back disorders in a September 2007 decision. In contrast, a September 2012 VA examiner opined that it was not at least as likely as not that the Veteran was unable to secure or follow a substantially gainful occupation as a result of her service-connected disabilities, either alone or in the aggregate, taking into consideration her level of education, special training and previous work experience. The examiner reasoned that the Veteran's service-connected orthopedic disabilities limited her ability to do prolonged walking or standing to no longer than 15 minutes and that she was limited in her ability to sit for periods longer than 45 minutes to one hour. The examiner determined that the Veteran was therefore employable in sedentary jobs that allowed frequent breaks to get up and move around. A second September 2012 VA examiner opined that the Veteran's dysthymic disorder had no significant impairment that might impact her work performance. The Board also notes a February 2008 VA examination report which found that the Veteran had functional impairments, mainly due to pain, as a result of her service-connected cervical and lumbar spine disorders and had difficulty sitting and standing for prolonged periods of time. The examiner opined that "sedentary employment may be feasible with frequent changes in position." In the instant case, the Board can find no reason to accord more probative weight to the VA examiner's opinion or to the VA provider's opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the relevant inquiry when assessing the probative value of a medical opinion is whether the opinion reflects application of medical principles to an accurate and complete medical history). In this regard, both opinions were provided by qualified medical professionals. Moreover, each medical opinion reflects consideration of the Veteran's functional limitations as well as her post-service employment history. Additionally, each opinion does not simply state that there is a positive or negative opinion; each clinician explains the rationale for the opinion provided. In sum, the record contains a competent opinion indicating that the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected cervical and lumbar spine disorders, and another competent, seemingly equally probative opinion indicating that the Veteran was able to secure or follow a substantially gainful occupation. As the medical opinion evidence on the question of employability, essentially, in relative equipoise, the Board finds that such evidence, collectively, indicates that it is at least as likely as not that the Veteran was unable to secure or follow a substantially gainful occupation as a result of her service-connected disabilities. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. See 38 C.F.R. § 3.102. See also 38 U.S.C.A. § 5107; Gilbert, supra. Given the facts of this case, and resolving all reasonable doubt in the Veteran's favor, the Board concludes that the criteria for TDIU, are met. ORDER Compensation for the additional disability of multiple biliary stones with status-post sphincterotomy and stent with intra-operative cholangiogram with ampullary mass and removal of the gallbladder, as a result of VA medical treatment involving Accutane for a skin disorder, under the provisions of 38 U.S.C.A. § 1151, is denied. Entitlement to a TDIU is granted, subject to the legal authority governing the payment of VA compensation. ____________________________________________ JOHN L. PRICHARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs