Citation Nr: 1339197 Decision Date: 11/27/13 Archive Date: 12/13/13 DOCKET NO. 05-00 005A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE 1. Entitlement to service connection for a right shoulder disability. 2. Entitlement to service connection for neurological impairment of the left upper extremity. 3. Entitlement to service connection for neurological impairment of the left lower extremity to include as due to claimed inservice exposure to herbicides, or as due to service-connected disability. 4. Entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran had active service in the United States Air Force from June 1966 to February 1979. The record also showed subsequent periods of active and inactive duty training as well as a period of active duty from September 1997 to May 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 1999, July 2002, and April 2004 decisions by the RO which in part, denied service connection for the remaining issues currently on appeal. In October 2008, a hearing was held at the RO before the undersigned member of the Board. In October 2009, the Board remanded the issues remaining on appeal. In September 2012, the Board again remanded this case. FINDINGS OF FACT 1. A right long thoracic nerve disability affecting the right shoulder is etiologically related to service-connected spine disabilities. 2. Right shoulder arthritis was not manifest during service or within one year of discharge from service and is not otherwise attributable to service. 3. Left ulnar neuropathy is not attributable to service and is not etiologically related to a service-connected disability. 4. The Veteran did not have inservice exposure to herbicides and his currently diagnosed peripheral neuropathy of the left lower extremity is not otherwise attributable to service nor is it etiologically related to a service-connected disability. 5. The Veteran meets the schedular criteria for a TDIU during the entire appeal period, but his service-connected disabilities did not preclude him from securing or following a substantially gainful occupation for the appeal period. CONCLUSIONS OF LAW 1. A right long thoracic nerve disability affecting the right shoulder is proximately due to, the result of, or aggravated by the service-connected spine disabilities. 38 U.S.C.A. § 1101 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.310(a) (2006). 2. Arthritis of the right shoulder was not incurred in or aggravated by service and may not be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 101, 106, 1101, 1110, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309 (2013). 3. Left ulnar neuropathy was not incurred in or aggravated by service nor is it proximately due to, the result of, or aggravated by a service-connected disability. 38 U.S.C.A. §§ 101, 106, 1101, 1110, 1131 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303, 3.304 (2013); 38 C.F.R. §§ 3.310(a) (2006). 4. Peripheral neuropathy of the left lower extremity was not incurred in or aggravated by service nor is it proximately due to, the result of, or aggravated by a service-connected disability. 38 U.S.C.A. §§ 101, 106, 1101, 1110, 1131 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303, 3.304 (2013); 38 C.F.R. §§ 3.310(a) (2006). 5. The Veteran is not individually unemployable by reason of his service-connected disabilities. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.340, 3.341(a), 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim, including apprising him or her of the information and evidence he or she is responsible for providing versus the information and evidence VA will obtain for him or her. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). So this notice must include information that a "downstream" disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id., at 486. Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has made clear that VCAA notice errors are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of establishing there is a VCAA notice error and, moreover, above and beyond this, that the error is unduly prejudicial, meaning outcome determinative of the claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of the claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). VCAA letters were sent in February 2003, May 2004, June 2006, November 2009, and September 2012. The letters, especially in combination, indicated the type of evidence and information needed to substantiate the claim and apprised the Veteran of the Veteran's and VA's respective responsibilities in obtaining this supporting evidence. The letters also notified the Veteran that a "downstream" disability rating and an effective date for the award of benefits would be assigned if service connection was granted, in compliance with Dingess. The Veteran has been afforded a hearing before a Veterans Law Judge (VLJ) in which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims ("the Court") held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issue and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ did not specifically note the bases of the prior determination or the elements that were lacking to substantiate the claim. The VLJ asked specific questions, however, directed at identifying whether the Veteran met the criteria for service connection. The Veteran also volunteered his treatment history and his symptoms since service. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board/DRO hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. 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). Regarding the duty to assist, VA also satisfied this obligation in terms of obtaining all potentially relevant evidence concerning these claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's service treatment records (STRs), VA medical treatment records, and identified private medical records were obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication that any additional evidence, relevant to these claims, is available and not part of the claims file. The Veteran also was provided VA compensation examinations, including for medical nexus opinions concerning the etiology of the claimed disorders, as the Board directed when last remanding these claims in September 2012. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The medical nexus opinions obtained are responsive to the determinative issue of causation, so additional examinations and opinions are not needed. 38 C.F.R. § 4.2. See also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (VA's duty to assist includes providing an adequate examination when such an examination is indicated). The examinations of record are adequate to address all pertinent concerns, as the claims file was reviewed for the relevant medical and other history, the Veteran examined, the findings reported in sufficient detail, and there was discussion of the underlying medical rationale, which is where most of the probative value of an opinion is derived. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The VA examination reports are thorough and supported by the record. The records taken as a whole satisfy 38 C.F.R. § 3.326. Furthermore, in obtaining the additional medical opinions, the Board is satisfied there was compliance with this remand directive. See Stegall v. West, 11 Vet. App. 268 (1998) (indicating the Veteran is entitled, as a matter of law, to compliance with a remand directive and that the Board, itself, commits error in failing to ensure this compliance). See also Dyment v. West, 13 Vet. App. 141, 146-47 (1999); and D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (discussing situations when it is acceptable to have "substantial", though not "exact", compliance with a remand directive). In summary, the Board finds that "it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence he should submit to substantiate his claim." See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the Veteran). Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 30306. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. In addition, arthritis and organic diseases of the nervous system will be presumed to have been incurred in or aggravated by service if it had become manifest to a degree of 10 percent or more within one year of a veteran's separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The Board notes that 38 C.F.R. § 3.303(b) provides that with chronic diseases shown as such in service or within the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established, there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service or the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after service is required to support the claim. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and the Department of Veterans Affairs regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). The U. S. Court of Appeals for the Federal Circuit (Federal Circuit) recently held that the regulation creating a presumption of service connection for "chronic diseases" manifesting during service and then again at any later date (38 C.F.R. § 3.303(b)), is only available to establish service connection for the "chronic diseases" enumerated in 38 C.F.R. § 3.309(a) (listing named chronic diseases). Walker v. Shinseki, 708 F.3d 1331, 1336-37 (Fed. Cir. 2013). In the same case, the Federal Circuit clarified that the continuity of symptomatology language in § 3.303(b) also "restricts itself to chronic diseases" found in 38 C.F.R. § 3.309(a). Id. at 1335. With respect to the current appeal, this list includes arthritis and organic disease of the nervous system. See 38 C.F.R. § 3.309(a). Walker held that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases."). The Federal Circuit noted that the requirement of showing a continuity of symptomatology after service is a "second route by which a veteran can establish service connection for a chronic disease" under subsection 3.303(b). Walker, supra. Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period." Id. (holding that section 3.303(b) provides an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation"). Significantly, the Federal Circuit indicated that showing a continuity of symptomatology after service is a lesser evidentiary burden than the nexus requirement of the three-part test discussed above. The primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the 'nexus' requirement of the three-element test, whereas the former benefits from presumptive service connection or service connection via continuity of symptomatology. Service connection may be granted for disability resulting from disease or injury incurred during active duty for training (ADT), or injuries suffered during inactive duty training (IDT) to include when a cardiac arrest or a cerebrovascular accident occurs during such training. See 38 U.S.C.A. §§ 101(24), 106. Reserve and National Guard service generally means ADT and IDT. ADT is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). IDT includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). Basically, this refers to the twelve four-hour weekend drills that each Reservist or National Guardsman must perform each year. These drills are deemed to be part-time training. Active military service includes active duty, any period of ADT during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of IDT during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 U.S.C.A. § 1106; 38 C.F.R. § 3.6(a). Generally, an individual who has only Reserve or National Guard service (ADT or IDT with no active duty) is not a veteran as legally defined. In the service connection context, for example, this means that the presumption of soundness upon entry into service and the presumptive service connection provisions of 38 C.F.R. § 3.307, applicable to active duty, would not apply to ADT or IDT. 38 U.S.C.A. §§ 1111, 1112, 1137; 38 C.F.R. § 3.307. Thus, service connection on a presumptive basis is not available where the only service performed is ADT or IDT. See Biggins v. Derwinski, 1 Vet. App. 474, 476-78 (1991). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). A claim for secondary service connection generally requires competent evidence of a causal relationship between the service-connected disability and the nonservice-connected disease or injury. Jones (Wayne L.) v. Brown, 7 Vet. App. 134 (1994). There must be competent evidence of a current disability; evidence of a service-connected disability; and competent evidence of a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-7 (1995). With regard to the matter of establishing service connection for a disability on a secondary basis, the Court has held that there must be evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Additionally, when aggravation of a nonservice-connected disability is proximately due to or the result of a service connected condition, such disability shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id.; see also 71 Fed. Reg. 52744-52747 (Sept. 7, 2006). Effective October 10, 2006, VA amended 38 C.F.R. § 3.310 to implement the Court's decision in Allen, which, as noted above, addressed the subject of the granting of service connection for the aggravation of a nonservice-connected condition by a service-connected condition. See 71 Fed. Reg. 52,744-47 (Sept. 7, 2006). The existing provision at 38 C.F.R. § 3.310(b) was moved to sub-section (c). Although it was expected that the intended effect of the amendment was to conform VA regulations to the Allen decision, the regulatory amendment effectively resulted in a change in the law. This analysis is not correct. Rather, although the overall intention of the amendment to 38 C.F.R. § 3.310(b) was to implement the Allen decision, the amended 38 C.F.R. § 3.310(b) clearly institutes additional evidentiary requirements that must be satisfied before aggravation may be conceded and service connection granted. In addressing the imposition of this new evidentiary requirement, the regulatory comments cite to 38 U.S.C. § 501 as the supporting authority, and not Allen. See 71 Fed. Reg. 52,744-45 (Sept. 7, 2006). A review of the regulatory comments make clear that, ultimately, it is the Veteran's responsibility to support his or her claim by providing evidence of the baseline level of severity, and that it is not enough merely that an examiner concludes that there is "aggravation." See 71 Fed. Reg. 52,745 (Sept. 7, 2006). In sum, 38 C.F.R. § 3.310(b) appears to place substantive evidentiary restrictions on a veteran before aggravation may be conceded, and these restrictions appear to have no basis in the Allen decision itself. However, in this case, the Veteran's claim was filed prior to the effective date of the revised regulation (October 10, 2006). As such, the Board finds that the prior version of the regulation is more advantageous to the Veteran and should be applied. When a regulation changes and the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and after, the effective date of the change. See generally, Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003. In order to establish service connection for a claimed disability on a secondary basis, there must be (1) competent evidence of a current disability; (2) a service-connected disability; and (3) competent evidence of a nexus between the service-connected disease or injury and the current disability. See Wallin. A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). When, for example, a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). As held in Davidson, section 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. See also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence" such as actual treatment records). The Veteran is competent to report that which the Veteran can observe and feel through the senses. See Layno. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Once evidence is determined to be competent, the Board must determine whether the evidence also is credible, as only then does it ultimately have probative value. See Layno (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). To this end, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit, citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court similarly has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing when he/she has testified. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, aff'd per curiam, 78 F.3d 604(Fed. Cir. 1996). See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). The determination as to whether these requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. As already explained, competent lay evidence may establish the presence of observable symptomatology and, in certain circumstances, it may provide a basis for establishing service connection. See Barr. Although claimants may be competent to provide the diagnoses of simple conditions, such as a broken leg, they are not competent to provide evidence on more complex medical questions beyond simple observations. Jandreau; see Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia aggravated his diabetes and hypertension was not of sufficient weight to trigger the Secretary's duty to seek a medical opinion on the issue). Indeed, even if lay testimony is competent, should VA find it to be mistaken or lacking credibility, the Board may reject it as unpersuasive and, thus, not ultimately probative. Buchanan; see also Rucker and Layno. The Board may find a lack of credibility in, for example, conflicting medical statements or witness biases. Buchanan at 1337. The lack of contemporaneous medical evidence is also relevant; however, the mere lack of such evidence may not constitute the sole basis for discrediting the lay evidence. Id. The Veteran is competent in this case to report his symptoms, but nothing in the record demonstrated that he has received any special training or acquired any medical expertise in evaluating and determining causal connections for the claimed conditions. Therefore, a medical expert opinion would be more probative regarding the causation questions in this case and has been obtained as set forth below. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Veteran contends that his right shoulder, left upper extremity, and left lower extremity were all injured during an inservice motor vehicle accident (MVA) in September 1997. He also asserts that he has peripheral neuropathy due to service during the Vietnam Era in Vietnam and other areas of Asia. He additionally contends that his disorders are due to service-connected disability. The STRs revealed that the Veteran injured his left thumb and hand, and underwent surgery for a tear of the ulnar, collateral ligament. He also injured his left knee, but neurological damage was not noted. There is no documented right shoulder injury or disease. Following service, the Veteran was afforded a VA examination in April 1979. A neurological evaluation was performed. The Veteran exhibited hypertrophy of the left leg and of the metacarpophalangeal (MCP) joint of the left hand. The remainder of the examination was normal, Records from subsequent Reserve duty in 1993 noted that the Veteran complained of right trapezius pain after feeling a pull sensation. The diagnosis was muscle spasms. In June 1997, the Veteran was in a motor vehicle accident (MVA). It was noted that he had back and right shoulder pain afterwards. The Veteran also had a post-traumatic right ulnar nerve lesion. The Veteran was examined in July 1997 which showed continued complaints. In September 1997, the Veteran was involved in another MVA, this one while on active duty. Physical evaluation after the accident revealed scratches on his left arm and a linear ecchymosis just beneath the lateral aspect of his left deltoid muscle. His left ring finger was also injured. He sustained a mild head injury with a concussion. An October 1997 follow-up reflected only continued complaints with regard to the neck and back. The Veteran complained of neck and back pain with numbness in his extremities. The Veteran was examined in conjunction with a Military Board report which indicated that the Veteran had suffered injuries in the September 1997 accident, resulting in neck and low back disability, closed head injury, and memory loss. It was noted that the Veteran had a right ulnar nerve lesion, but that was due to the prior June 1997 accident. The Veteran was subsequently separated from Reserve service. A subsequent November and December 1997 psychological evaluations noted that the Veteran had memory deficits, but it was likely that these would improve. Also, a December 1997 private report noted that the Veteran was seen for multiple neurological symptoms secondary to the second MVA. The examiner reviewed pertinent findings from that accident. In pertinent part, the examiner noted that the Veteran had a previous ulnar nerve lesion of the right elbow, but there had been no significant effect on that disability. Physical examination revealed winging of the right scapula consistent with the Veteran's spinal accessory nerve lesion (which was due to the second MVA). In February 1998, a claim for VA compensation benefits was received which included claims for right shoulder, left upper extremity, and left lower extremity disabilities. February 1998 electromyography (EMG) findings revealed borderline latency on the left ulnar sensory latency. The EMG was negative for the left lower extremity and left hand. A February 1998 private rehabilitative report indicated that it would be important for the Veteran to work on a part-time basis as he was able. April 1998 private medical records revealed that the Veteran underwent surgery for a right labral tear with impingement due to a work related injury. In March 1999, the Veteran had a VA examination which included examination of his left hand. It was noted that the Veteran had a decreased sensation with the ulnar nerve distribution. A March 1999 neurological evaluation revealed evidence of bilateral ulnar nerve compression neuropathy, worse on the right. The examiner noted that it was possible that his compression neuropathy was an entrapment unrelated to his MVA. In February 2000, the Veteran was examined in order to determine if he should be placed back on active duty. However, the recommendation was negative. The findings included right shoulder and ulnar nerve complaints. A February 2000 letter from a vocational rehabilitation consultant indicated that the Veteran's cognitive/psychiatric disorder had resulted in symptoms including paranoia which in turn had left the Veteran with a great potential to harm others and the counselor opined that the Veteran should not be part of the work force. In December 2001, VA records indicated that the Veteran had posttraumatic stress disorder (PTSD) which was secondary to the September 1997 MVA. An October 2002 psychological evaluation resulted in diagnoses of major depressive disorder, in partial remission, obsessive compulsive disorder, cognitive disorder. It was noted that the Veteran's employability appeared to depend on his physical fitness and stamina and on his psychological stabilization. He had residual cognitive ability to perform some relatively non-complex tasks provided he was physically and psychologically capable, which the Veteran alleged he was not. In December 2003, the Veteran was afforded a VA spine examination. It was indicated that the Veteran had a schwannoma which was not related to military service and which was resulting in radiculopathy. A December 2003 psychiatric examination noted that the Veteran had a major depressive disorder in partial remission, an obsessive compulsive disorder, and a cognitive disorder, which were related to the September 1997 car accident. It was noted that the Veteran had symptoms which developed when he tried to resume work. In January 2004, the Veteran was afforded a VA examination. The examiner indicated that the Veteran had residual cervical and lumbar pain, a lumbar meningioma, winging of the scapula secondary to a long thoracic nerve lesion, and a right ulnar nerve lesion. However, the Veteran was not diagnosed with arthritis of the right shoulder. In April 2004, the Social Security Administration determined that the Veteran was disabled since November 1999 due to psychiatric and spine disorders. During a March 2008 psychiatric examination, the Veteran reported that he was retired. However, the examiner indicated that the psychiatric symptoms were not severe enough to interfere with his occupational functioning. At his October 2008 hearing, the Veteran indicated that he was last employed in November 1999, but then returned in February 2000. The February 2000 date is consistent with his application for TDIU. He specified that the cognitive disorder prevented employment. In June 2011, the Veteran was afforded VA examinations. At that time, it was noted that the Veteran was employed, as a lawyer, and had worked in this capacity from less than one year to 2 years, as variably reported by the Veteran. He had missed one week of work due to thoughts of harming himself. The Veteran indicated that he was working full-time. It was also noted that sedentary employment was not precluded by any of the Veteran's service-connected disabilities. However, physical activity was basically precluded, particularly when the Veteran was taking codeine medication. The Board notes at this juncture that since the Veteran was in fact working, he was essentially employable. With regard to the Veteran's right shoulder, x-rays revealed degenerative joint disease. The examiner opined that this diagnosis was due to the normal aging process and had been shown by x-rays dated after December 2002. The diagnosis was not caused by the September 1997 MVA in the military accident nor was there a right shoulder disability preexisting that accident. With regard to the left upper extremity, the examiner indicated that the Veteran had left ulnar neuropathy manifested by subjective paresthesias of the left 4th and 5th fingers which was not objectively documented as being caused by the September 1997 MVA nor did it preexist that accident, but rather was due to the normal aging process. With regard to the left lower extremity, the examiner indicated that any left lower radiculopathy was the result of a 2000 resection of the T-12/L1 segments due to nonservice-connected schwannoma and were not the result of the September 1997 MVA nor did they preexist that accident. The Board determined that additional development was necessary. It was noted that in the prior Board's 2009 remand, the Board requested that an examiner identify any disability of the right shoulder, in pertinent part, and determine its etiology. The June 2011 VA examiner identified x-ray evidence of degenerative joint disease in the Veteran's right shoulder which he felt was not related to service, but rather to the normal aging process. In arriving at such opinion, the VA examiner noted that the Veteran did not have a right shoulder disability at the time of the September 1997 MVA. However, the Veteran was treated for right shoulder problems, in pertinent part, at a private emergency room following a June 1997 MVA, just three months prior to the September 1997 MVA. June 1997 x-rays showed evidence of mild sclerosis in the right acromion, and a June 1997 private treatment note shows that the Veteran exhibited symptoms consistent with right shoulder cuff tendonitis. In light of the right shoulder diagnoses that predated the September 1997 MVA, the Board found that a supplemental medical opinion was necessary to clarify the etiology of the Veteran's current right shoulder disability. Further, the Board indicated that the issue of entitlement to service connection for bilateral neuropathy in the upper extremities was remanded in 2009 to afford the Veteran a VA examination. During the June 2011 VA examination, the Veteran was found to have bilateral ulnar neuropathy. He is currently service-connected for right ulnar neuropathy. See August 2011 rating decision. As to the diagnosis of left ulnar neuropathy, the June 2011 VA examiner indicated that the Veteran did not have a pre-existing neurological disorder at the time of the September MVA and determined that the left ulnar neuropathy was not objectively documented as being caused by the 1997 accident, but rather the result of the normal aging process. Nonetheless, the Board observed that service connection had been in effect since February 1979 for a ligamentous injury to the medial MCP joint on the left, with loss of hand grip and atrophy. The Board noted that the Veteran's left hand/thumb disability is currently assigned a 20 percent rating under Diagnostic Code 5308, which contemplates muscle injuries to Muscle Group VIII. 38 C.F.R. § 4.73, Diagnostic Code 5308. Muscle Group VIII involves the muscles arising mainly from the external condyle of the humerus, to include extensors of the carpus, fingers, and thumb, and the supinator, and its functions include extension of the wrist, fingers, and thumb, and abduction of the thumb. A slight injury to the non-dominant hand involving Muscle Group VIII warrants a noncompensable rating. Higher disability ratings of 10, 20, and 30 percent are warranted when the injury to the non-dominant hand involving Muscle Group VIII is moderate, moderately severe, and severe, respectively. Id. Thus, given the recent evidence of left ulnar neuropathy, the Board determined that a supplemental medical opinion was necessary to determine if the left ulnar neuropathy is in any way related to the service-connected left hand disability. As to the service connection claim for neurological impairment (radiculopathy) of the left lower extremity, the Board determined that a supplemental medical opinion was also necessary. A June 2011 VA examiner determined that the Veteran's left lower radiculopathy was caused by the nonservice-connected schwannoma resection and therefore cannot be proximately due to, or the result of, the service-connected degenerative disc disease of the lumbar spine. Moreover, the examiner opined that the radiculopathy in the left lower extremity had not worsened the Veteran's lumbar spine conditions arising out of the September 1997 MVA. However, the examiner did not discuss whether the Veteran's radiculopathy is aggravated by his service-connected back disability (characterized as thoracic and lumbar spine degenerative disc disease). See 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439, 448 (1995). Finally, as to the TDIU claim, the Board noted that a VA clinical psychologist who conducted the June 2011 psychiatric examination opined that the Veteran is not unemployable due to his mental disorder. Additionally, according to the June 2011 VA "muscle" examination report, the examiner determined that sedentary occupations are not precluded by any of the Veteran's conditions, service-connected or otherwise, as long as he does not take codeine in combination with other medications. Nonetheless, the Board noted that the outcome of the Veteran's claims being remanded for supplemental medical opinions could have an effect on the outcome of his TDIU claim. In September 2012, the Veteran was afforded the requested VA examination. Physical examination was performed and the record was reviewed by the examiner. With regard to the right shoulder, the current diagnosis was degenerative arthritis. The examiner clarified that by the time of the September 1997 MVA, there was no present right shoulder disability. Thus, no remaining preexisting right shoulder disability when he was involved in that accident. The examiner opined that the current right shoulder disability was not present for many years after the September 1997 MVA and noted that December 2002 x-rays were normal. The examiner agreed with the June 2011 examination report in the finding that the current right shoulder arthritis developed after December 2002. Even assuming the right shoulder was injured in the September 1997 MVA, the examiner concluded that the current right shoulder arthritis was a result of the normal aging process, having developed well after that event, between December 2002 and the present time. With regard to left ulnar neuropathy, the examiner opined that the current diagnoses was not caused by or aggravated by service. The examiner explained that this conclusion was based on a review of the STRs, his clinical experience, and medical literature. The examiner indicated that during service, the Veteran sustained a tear of the ulnar collateral ligament of the left thumb. This injury was surgically repaired in June 1997 and there is still currently a residual scar from that surgery. If that injury resulted in ulnar neuropathy, it would have been very mild and known to have improved with therapy and use. The current symptoms with regard to the left thumb were also articulated. Thereafter, many years after service discharge, the Veteran was diagnosed with left ulnar neuropathy across the elbow. The onset was unknown to the Veteran himself with regard to this neuropathy across the elbow, although he reported a history of typing on the computer. The examiner opined that the current left ulnar neuropathy did not have an onset of during service or shortly after service discharge. Moreover, the examiner further opined that there was no available medical literature which supported a cause and effect relationship, including through aggravation, and the Veteran's service-connected ligamentous injury of the medial metacarpophalangeal joint of the left hand. With regard to the left lower extremity, the examiner indicated that the Veteran does not have radiculopathy. The Veteran had bilateral symmetric stocking distribution peripheral neuropathy which the examiner opined was not caused by, aggravated by, or the result of the Veteran's service-connected degenerative disc disease of the thoracic and lumbar spine. The examiner explained that this conclusion was based on a review of the STRs, his clinical experience, and medical literature. With regard to his employability, the Veteran reported that he was gainfully employed until May 2012 as a computer data base operator (also had a law degree). Since the Veteran's disabilities had been stable for at least 12 months, the examiner indicated that the Veteran was still employable. During the hand and finger examination, the Veteran indicated that he used to have left hand nerve pain when he worked on the keyboard, but he was not prevented from working. The Veteran was also afforded a psychiatric examination. The results were noted to suggest that the symptoms from the Veteran's major depressive disorder were in partial remission and his OCD symptoms were relatively mild. The examiner opined that the Veteran was able to be employed in his most recent field, working as a manager of a computer data base. Right Shoulder The STRs from active service do not reflect complaints, findings, treatment, or diagnosis of right shoulder disease or injury. Although there was one Reserve record dated in August 1993 which noted muscle spasms in the trapezius region, no underlying pathology of the right shoulder was diagnosed. In June 1997, the Veteran was in a MVA which resulted in right shoulder complaints. The diagnosis was post-traumatic right ulnar nerve lesion. In September 1997, the Veteran was involved in another MVA while on active duty. The records from that accident note the existence of a right ulnar nerve lesion and it was indicated that this finding predated the inservice accident. Nevertheless, at this juncture, the Board notes that service connection is in effect for right ulnar nerve neuropathy so consideration for neurological impairment of the right ulnar nerve is unnecessary since service connection is in effect. Following the accident, the December 1997 examiner noted that the Veteran had winging of the right scapula consistent with the Veteran's spinal accessory nerve lesion (which was due to the second MVA). Service connection has also been granted for overall neurological impairment of the cervical and lumbar spine. A January 2004 VA examination reported that the Veteran had winging of the right scapula secondary to a long thoracic nerve, indicative of long thoracic nerve disability. Arthritis was not diagnosed by that examiner. The current VA examinations show that the Veteran's present diagnosis is arthritis of the right shoulder, which, as noted above, was indicated to not predate the September 1997 accident, and which developed many years thereafter and unrelated thereto. The Board must weigh the credibility and probative value of the medical opinions, and in so doing, 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)); see also Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (it is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons and bases for doing so). The Board must account for the evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). In determining the weight assigned to this evidence, the Board also looks at factors such as the health care provider's knowledge and skill in analyzing the medical data. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); see also Black v. Brown, 10 Vet. App. 279, 284 (1997). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez. The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ( "[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In this case, the medical opinions of record are probative as they satisfy the directives of Nieves-Rodriguez. As such, service connection is not warranted for arthritis of the right shoulder as the probative assessments concluded that the Veteran did not have this disability during service or for many years thereafter, certainly outside the one year window for presumptive service connection. The medical opinions are more probative than the Veteran's personal opinion, as indicated above, as they have medical expertise to provide an opinion and provided a longitudinal review of the record. However, the recent opinions did not address long thoracic nerve injury, perhaps because that is considered a separate disability as a nerve injury, separate from the currently diagnosed arthritis. However, since it does involve the right shoulder area, a matter on appeal, the Board must consider if this disability warrants service connection. Since the disability was diagnosed during the appeal period and has been etiologically associated with the service-connected neurological spine disability, the Board finds that service connection is warranted on a secondary basis. Neurological Impairment of the Left Upper Extremity The Veteran is service-connected for both a ligamentous injury of the medial MCP joint with loss of hand grip and atrophy as well as left shoulder impingement syndrome. So, to the extent that the current claim encompasses symptoms compatible with those disabilities, the Veteran has already been service connected. The Veteran currently also carries a diagnosis of left ulnar neuropathy. A February 1998 EMG revealed borderline latency on the left ulnar sensory latency. A March 1999 neurological evaluation revealed evidence of bilateral ulnar nerve compression neuropathy, possibly an entrapment unrelated to his MVA. The June 2011 examiner opined that the Veteran has left ulnar neuropathy manifested by subjective paresthesias of the left 4th and 5th fingers was not objectively documented as being caused by the September 1997 MVA nor did it preexist that accident, but rather was due to the normal aging process. The September 2012 examiner also concluded that the left ulnar neuropathy was not caused by or aggravated by service. The examiner explained that if there was any ulnar neuropathy following the inservice hand injury, it essentially would have healed and further opined that the current left ulnar neuropathy did not have an onset of during service or shortly after service discharge. Moreover, the examiner opined that there was no cause and effect relationship, including through aggravation, between his current ulnar neuropathy and his service-connected left hand disability. As previously stated, the examination opinion, particularly taken cumulatively, as the most probative evidence regarding the complex question of the etiology of the Veteran's current diagnosis of left ulnar neuropathy. This probative evidence establishes that the Veteran's current diagnosis is not related to service or to service-connected disability on any basis, including aggravation. Accordingly, service connection is not warranted for left ulnar neuropathy. Neurological Impairment of the Left Lower Extremity VA law and regulations provide that a chronic, tropical, or prisoner-of-war related disease, or a disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309 will be considered to have been incurred in or aggravated by service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service. No condition other than the ones listed in 38 C.F.R. § 3.309(a) will be considered chronic. 38 U.S.C.A. §§ 1101, 1112, 1113, 1116; 38 C.F.R. § 3.307(a). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. If a veteran, who served in the Republic of Vietnam was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service- connected if the requirements of 38 U.S.C.A. § 1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied: chloracne or other acneform diseases consistent with chloracne, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, early-onset peripheral neuropathy (formerly acute and subacute peripheral neuropathy), porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), type II diabetes, and chronic lymphocytic leukemia. 38 C.F.R. § 3.309(e). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). Effective September 6, 2013, VA amended its adjudication regulations concerning presumptive service connection for disabilities associated with exposure to certain herbicide agents. The amendments implement a decision by the Secretary to clarify and expand the terminology regarding the presumption of service connection for peripheral neuropathy associated with exposure to certain herbicide agents and to ensure compliance with court orders from the class action litigation of Nehmer v. U.S. Department of Veterans Affairs, No. CV-86-6160 TEH (N.D. Cal.). In the National Academy of Sciences' (NAS) report Veterans and Agent Orange: Update 2010, NAS concluded that early onset peripheral neuropathy associated with herbicide exposure is not necessarily a transient condition. NAS also reaffirmed the conclusion in its prior reports that data did not suggest that exposure to herbicides led to the development of delayed-onset chronic peripheral neuropathy. Therefore, VA amended §§ 3.307(a)(6)(ii) and 3.309(e) by replacing the term "acute and subacute peripheral neuropathy" with the term "early-onset peripheral neuropathy." VA also removed Note 2 to § 3.309(e), which had required, in order for the presumption to apply, that the neuropathy be transient and appear within weeks or months of exposure to an herbicide agent and resolve within two years of the date of onset. Under the amendments, peripheral neuropathy will still need to become manifest to a degree of 10 percent or more within one year after the date of last exposure to herbicides in order to qualify for the presumption of service connection, but it no longer needs to be transient. VA also amended § 3.816, the regulation governing retroactive awards under the Nehmer court orders for certain diseases associated with herbicide exposure, by removing the language from paragraph (b)(2) that the Nehmer court orders only apply to presumptions established before October 1, 2002 and removing the list of conditions. This revision addresses findings in the Nehmer court orders that the date restriction and corresponding list of presumptive conditions were invalid, since they were not inclusive of all conditions the Secretary has determined to be presumptively service connected based on herbicide exposure under the Agent Orange Act of 1991. VA is inserting language at § 3.816(b)(2) to clarify that the Nehmer court orders apply to the presumptions listed in § 3.309(e). These amendments apply to claims received by VA on or after September 6, 2013 and to claims pending before VA on that date. VA will also apply this rule in readjudicating certain previously denied claims as required by the Nehmer court orders. The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994); see also Notice, 61 Fed. Reg. 41,442-449 (1996). At the outset, the Board notes that the Veteran's DD Form 214 does not reflect that he served in the Republic of Vietnam. The RO has confirmed that he did not serve in Vietnam. The Veteran asserts that he served in other parts of Asia and submitted evidence in August 2002 regarding his legal appearances at Clark Air Force Base, in the Philippines. However, the record does not contain any competent, objective evidence that demonstrates that the Veteran was exposed to Agent Orange while at Clark Air Force Base in the Philippines or at any other location during service. VA and Department of Defense have identified countries where Agent Orange was used, and the Philippines is not one of the identified countries. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C; see also Veterans Benefits Administration (VBA) "Fact Sheet" distributed in September 2003 and VBA Fast Letter 09-20 (May 6, 2009). Thus, the Board finds that since inservice exposure to herbicides is not established, presumptive service connection on that basis is not warranted. With regard to direct service connection, the STRs do not reveal left lower extremity neurological impairment. The two recent VA examinations addressed whether the Veteran currently has left lower extremity neurological impairment. The June 2011 examiner indicated that any left lower radiculopathy was the result of a 2000 resection of the T-12/L1 segments due to nonservice-connected schwannoma and was not the result of the September 1997 MVA nor did it preexist that accident. The subsequent 2012 examination report indicated that the Veteran does not have radiculopathy. Rather, he has bilateral symmetric stocking distribution peripheral neuropathy which the examiner opined was not caused by, aggravated by, or the result of the Veteran's service-connected degenerative disc disease of the thoracic and lumbar spine. As noted, these VA examination, taken together, are the most probative evidence of record regarding the complex medical questions that have been presented. The Veteran's current neurological impairment of the left lower extremity is etiologically related to nonservice-connected disability and is not etiologically related, including by way of aggravation, to service-connected disability. Thus, service connection is not warranted. TDIU Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a). In February 2003, a claim for a TDIU was received from the Veteran. At that time, he reported that he was last gainfully employed in February 2000 (he listed 1999, but in another section reported that he worked until February 2000). The Veteran is service-connected for many disabilities, including the disability of impairment to the right long thoracic nerve which has been service connected above. The other service-connected disabilities are as follows: thoracic and lumbar degenerative disc disease, rated as 40 percent disabling; cognitive disorder with major depressive disorder and obsessive compulsive disorder rated, rated as 30 percent disabling; ligamentous injury of the left medial MCP joint, rated as 20 percent disabling; cervical disc degeneration, rated as 10 percent disabling from May 1998, and 20 percent from June 2011; residuals of a medial collateral ligamentous injury of the left knee with mild genu valgus deformity, rated as 10 percent disabling; chronic headaches, rated as 10 percent disabling; right ulnar nerve neuropathy (major), rated as 10 percent disabling; right lower extremity radiculopathy, rated as 10 percent disabling; and left shoulder impingement syndrome, rated as 10 percent disabling. The combined rating without the long thoracic nerve injury disability was 80 percent from May 1998, and 90 percent from June 2011. Thus, during the entire appeal period, the schedular criteria for a TDIU were met. However, the Veteran is still required to establish unemployability due to these disabilities. A review of record shows that following the Veteran's two MVAs, and in particular the second MVA, the Veteran had difficulty with employment due to physical impairment as well as cognitive and psychiatric deficits. The Social Security Administration determined that he was unemployable based on residuals of the second accident. However, these accidents pre-dated the Veteran's claim for a TDIU (made in February 2003) by many years and the Veteran was subsequently employed, having recovered to that level. Although in VA assessments, such as his March 2008 psychiatric evaluation, the Veteran reported that he was retired, it was noted that the Veteran's symptoms were not severe enough to interfere with occupational functioning. The Veteran has also been inconsistent when reporting his employment dates, at times indicating that he last worked in the late 1990's and at other times, in the 2000's, and more recently he has been employed full-time. The Veteran was examined and his claim was in fact remanded for an additional examination in order to assess his functional capacity for employment. The examinations covered his various disabilities and addressed his employability, particularly since there is some question in the record, given his inconsistent reports and the lack of assessments in that regard. The June 2011 evaluations showed that the Veteran was in fact working. It was confirmed that the Veteran was able to work, but not perform physically demanding activities. The Veteran was again examined in September 2012. At that time, he reported that he had been employed until May 2012. However, the Veteran reported during his hand examination that although he had pain when using a keyboard, he was not prevented from working. Further, both the psychiatric and physical disability examiners opined that the Veteran was employable. The psychiatric examiner stated that his current symptoms were not severe enough to prevent the Veteran from functioning at his recent occupation. The other examiner stated that his disabilities had been stable, that is, at the same basic disability status as when he was employed full-time at the time of the June 2011 examination. Thus, he was employable. The essential issue is whether the Veteran's service-connected 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"). Moore v. Derwinski, 1 Vet. App. 356 (1991). The record must reflect that circumstances, apart from non-service-connected conditions, place him in a different position than other veterans having the same compensation rating. 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 is whether the Veteran, in light of his service-connected disabilities, was capable of performing the physical and mental acts required by employment, not whether he could find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Board finds that the Veteran's service-connected disabilities alone do not preclude him from engaging in substantially gainful employment. His assigned disability rating contemplates an impairment in the ability to perform substantially gainful employment due to his service-connected disabilities. However, "[t]he percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations." 38 C.F.R. § 4.1. The Board finds that the VA Schedule for Rating Disabilities and the disability evaluation assigned to the Veteran's service-connected disabilities under that Schedule accurately reflect the Veteran's overall impairment to his earning capacity. The record shows that although the Veteran sustained serious MVA accidents in 1997, he recovered to the point of employment, having held employment over the years. Although his work history is varied, the question before the Board is whether he has been capable of employment, which the Board finds that he has been, particularly since he demonstrated sustained employment, by his own admission. Most recently, although he stated that he was not working, his level of disability was stable from the time when he was working. Thus, there is evidence showing that he has the capability to obtain and sustain full-time employment. Therefore, a TDIU rating is not warranted. ORDER Service connection for a right long thoracic nerve disability affecting the right shoulder as secondary to service-connected spine disability is granted. Service connection for right shoulder arthritis is denied Service connection for neurological impairment of the left upper extremity is denied. Service connection for neurological impairment of the left lower extremity to include as due to claimed inservice exposure to herbicides, or as due to service-connected disability is denied. Entitlement to a TDIU is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs