Citation Nr: 1341470 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 04-19 956 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). ATTORNEY FOR THE BOARD Rutkin, Joshua M. INTRODUCTION The Veteran served on active duty from January to July 1994. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a January 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This derivative issue of entitlement to a TDIU stems from a claim for an increased rating for the Veteran's service-connected lumbar spine disorder with bilateral (left and right lower extremity) radiculopathy, which was previously adjudicated by the Board in April 2008 (schedular consideration) and November 2010 (extra-schedular consideration). The Board refers to its July 2013 remand for a more detailed discussion of the procedural history of this derivative claim. In an October 2012 Order, the United States Court of Appeals for Veterans Claims (Court/CAVC) granted a joint motion, vacating an April 2012 Board decision denying entitlement to a TDIU and remanding this claim for compliance with the instructions in the joint motion. To this end, the Board in turn remanded this claim in December 2012 to the RO via the Appeals Management Center (AMC) for further specified development. The Board again remanded this claim in July 2013 pending completion of the development of other service connection claims that might also have a bearing on entitlement to a TDIU. However, the case was transferred back to the Board without processing those claims. In this regard, although the July 2013 remand was for the purpose of considering whether pending service connection claims not yet adjudicated by the RO might support entitlement to a TDIU if the claims were granted, the Veteran expressed his desire in an October 2013 statement that VA proceed immediately with a decision on his TDIU claim. As all due process requirements have been satisfied with respect to this claim, the Board will proceed with appellate review of this claim. As discussed in the July 2013 remand, pending service connection claims for headaches and a neck disability have been raised by the record, but have not been adjudicated by the RO as the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over these other claims, so is again referring them to the RO for appropriate action. See 38 C.F.R. § 19.9(b) (2013). See also Godfrey v. Brown, 7 Vet. App. 398, 409 (1995). This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this claim should take into consideration the existence of this electronic record. FINDING OF FACT The Veteran's service-connected lumbar spine disorder and associated radiculopathy of the lower extremities does not prevent him from obtaining and maintaining substantially gainful employment - albeit in a sedentary not physical capacity. CONCLUSION OF LAW The criteria are not met for entitlement to a TDIU on a schedular basis, and referral for extra-schedular consideration is unwarranted. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, and 4.19 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Procedural Due Process A. The Duties to Notify and Assist VA's duties to notify and assist under the Veterans Claims Assistance Act of 2000 (VCAA) have been satisfied. See 38 U.S.C.A §§ 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.326(a) (2013). A November 2010 letter provided all notice required under the VCAA followed by adequate time for the Veteran to submit information and evidence in support of this claim before it was adjudicated in a February 2012 supplemental statement of the case (SSOC) and subsequent SSOC's. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b). The Veteran's service treatment records, VA treatment records, Social Security Administration (SSA) records, and private treatment records identified by him have been associated with the claims file. See 38 C.F.R. § 3.159(c). He has not identified any other records or evidence he wished to submit or have VA obtain. A VA examination was performed in July 2011 and a supplemental opinion provided in March 2013, which together enable the Board to make a fully informed decision on this claim. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008); 38 C.F.R. §§ 3.159(c)(4), 3.326(a), 3.327 (2013). In light of the above, the Veteran has had a meaningful opportunity to participate in the processing of this claim, and there is no indication of prejudicial error with regard to VA's duties to notify and assist. See Shinseki v. Sanders, 556 U.S. 396, 407, 410 (2009); Arneson v. Shinseki, 24 Vet. App. 379, 389 (2011); Vogan v. Shinseki, 24 Vet. App. 159, 163 (2010). Accordingly, the Board will proceed with appellate review. B. The Board's Remand Directives The Board's remand directives to send the Veteran a VCAA notice letter with respect to this claim, and to obtain an adequate VA examination and opinion have been satisfied, as discussed above. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As previously noted, the Board had remanded this claim again in July 2013 so that pending service connection claims not yet adjudicated by the RO might be addressed, as a favorable disposition on one or more of those claims would potentially have a bearing on whether TDIU may be established. If the pending service connection claims were granted, the Board instructed that the examiner who previously examined the Veteran and rendered an opinion on the issue of unemployability provide a supplemental opinion taking into account the additionally service-connected disabilities. As already noted, the Veteran has expressed his wish that a decision be presently rendered on the issue of entitlement to TDIU. Because the other service connection claims have not yet been processed, and are not in appellate status, there is no prejudice to the Veteran in proceeding with a decision on the merits on this issue. Accordingly, there was no prejudicial error with regard to transferring this case back to the Board prior to adjudicating the other service connection claims. See id. (indicating that the rule of prejudicial error applies in determining whether there has been compliance with the Board's remand directives). If such claims are granted at a later date, the issue of entitlement to TDIU may always be considered again at that time, if the Veteran so wishes. II. Analysis The Veteran contends that his service-connected disabilities prevent him from engaging in substantially gainful employment and that therefore he is entitled to a total disability rating. For the reasons that follow, the Board concludes that TDIU is not warranted. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 4.15. To establish a total disability rating based on individual unemployability, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). In Faust v. West, 13 Vet. App. 342 (2000), the Court defined substantially gainful employment as "an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income." Under VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), "substantially gainful employment" is defined as "that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Total disability ratings for compensation may be assigned, where the schedular rating is less than 100 percent, 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 one or more service-connected disabilities without regard to advancing age. See 38 C.F.R. §§ 3.341(a), 4.16(a). If unemployability is the result of only one service-connected disability, this disability must be ratable at 60 percent or more. See 38 C.F.R. § 4.16(a). If it is the result of two or more service-connected disabilities, at least one must be ratable at 40 percent or more, with the others sufficient to bring the combined rating to 70 percent or more. Id. Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system such as orthopedic disabilities, will be considered as one disability for TDIU purposes. Id. Service connection is in effect for an L5-S1 bulging disc with desiccated disc and L1, L3 hemangiomas by MRI, lumbar paravertebral myositis, rated as 40-percent disabling; for associated radiculopathy of his left lower extremity, rated as 10-percent disabling; and for associated radiculopathy of his right lower extremity, also rated as 10-percent disabling. With consideration of the bilateral factor, these three disabilities combine to 50 percent. See 38 C.F.R. § 4.25. So the Veteran does not satisfy the threshold minimum rating requirements of § 4.16(a) because his combined rating must be at least 70 percent (since he has more than one service-connected disability) or, even if considering these disabilities are of common origin or etiology, so treated instead as just one collective disability, are not rated as at least 60-percent disabling. Although the Veteran's service-connected disabilities do not satisfy the schedular criteria for TDIU consideration, it is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Rating boards should refer to the Director of the Compensation and Pension Service for extraschedular consideration all cases of Veterans who are unemployable by reason of service connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). In determining entitlement to a TDIU, the central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to cause unemployability, without regard to advancing age or disabilities for which service connection has not been established. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993); 38 C.F.R. §§ 3.341(a), 4.16(a). In a precedent decision, VA's General Counsel concluded that the controlling VA regulations generally provide that Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. VAOPGCPREC 75-91. Thus, the criteria include a subjective standard. See id. VA's General Counsel further observed that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. Id. Importantly, requiring a Veteran to prove 100 percent or total unemployability is different from requiring proof that he cannot obtain or maintain "substantially gainful employment." See Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The use of the word "substantially" suggests intent to impart flexibility into a determination of overall employability, whereas a requirement that he prove 100-percent unemployability leaves no flexibility. See id. Moreover, in Friscia v. Brown, 7 Vet. App. 294, 297 (1994), the Court held that the Board may not reject a TDIU claim without producing evidence, as distinguished from mere conjecture, showing the Veteran can perform work that would produce sufficient income to be other than marginal. At the same time, the mere fact that a claimant is unemployed or has difficulty obtaining employment is insufficient reason to find that he is unemployable. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment, as VA's rating schedule is already designed to take into consideration impairment that renders it difficult to obtain and keep employment. Id.; see also 38 C.F.R. §§ 4.1, 4.15. Turning to the evidence, a decision of an Administrative Law Judge (ALJ) of the Social Security Administration (SSA) dated in April 1997 granted the Veteran disability insurance benefits retroactively effective from November 1994, so apparently as of when he had last worked. The Disability Determination and Transmittal form associated with that decision noted he was disabled solely due to a herniated L5-S1 disc and nerve root compression, so on account of his service-connected disability. No secondary diagnosis was identified. In the Evaluation of the Evidence section of that decision, the ALJ found that the Veteran "cannot perform his past relevant work as heavy equipment operator. He can only perform a very narrow range of sedentary work." See page 8. In the Findings section of that decision, the ALJ noted the Veteran's impairments, which were considered severe under the Social Security Act, as herniated L5-S1 disc with nerve root compression and neurological deficits, tendinitis of the shoulders, calcaneal spurs syndrome, and an anxiety disorder with depression complicated by physical limitations and constant pain. See page 10. A July 2003 statement from the Veteran's private physician indicated the Veteran complained of constant stabbing pain in his lower back and radiating into his lower extremities, most severe to the left side down to his foot and toes. He also complained of severe cramps in his left leg and toes and left leg numbness, weakness, and giving way. He reported, as well, that his lower back frequently becomes locked and that his lower back and lower extremity symptoms become severely aggravated after 15 minutes of sitting or standing. On objective physical examination, he appeared depressed, walked with the back bent in approximately 15 degrees of flexion, had to change positions frequently in his chair, and had to get up frequently and rub his lower spine to alleviate the tightness and pain. Examination of his lower spine revealed severe pain on palpation, severe muscle spasm, and the spine was locked at 15 degrees of flexion. Motion was painful and restricted to 20 degrees flexion, zero degrees extension, and 10 degrees lateral bending to each side. There was severe pain on palpation with a trigger point on the left side. Examination of the lower extremities revealed positive straight leg raising at 15 on both sides and numbness in the legs, most severe the left, with decreased 2 point discrimination. The deep tendon reflexes were absent at both knees and both ankles and the Veteran was unable to squat or kneel. The diagnoses included herniated disc at L5-S1 with nerve roots compression and severe neurologic deficits in the lower back and lower extremities, as revealed by magnetic resonance imaging (MRI) of the lumbosacral spine and degenerative arthritis of the lumbosacral spine and discs, secondary to chronic discs injuries. The private physician concluded that the Veteran's conditions are permanent and totally incapacitating for all types of work and further aggravated by his mental illness. In September 2003, the Veteran had a VA compensation examination. He reported a constant on and off, moderate low back pain with radiation to the feet associated with occasional loss of strength with weakness as well as an occasional stabbing sensation. Physical examination revealed that he had a normal lumbar spine, lower limb, posture and slow guarded gait. Range of motion testing revealed forward flexion to 30 degrees, backward extension to 25 degrees, and lateral flexions and rotations to 20 degrees. The examiner noted painful motion on the last degree of the range of motion. The examiner also noted the Veteran was additionally limited by pain, fatigue, weakness and lack of endurance following repetitive use and, during seven to eight percent of the year, has acute flare-ups of pain which have a major functional impact in which he cannot bath or dress and undress himself and has to be helped to get out of bed. Palpable mild lumbosacral spasm was noted and he had diminished pinprick and smooth sensation on L2, L3, and L4 dermatomes on the thighs. Left ankle jerk was +2, right ankle jerk was +1, knee jerks were absent bilaterally, and Lasegue's sign was positive bilaterally. The diagnosis was L5-S1 bulging disc and desiccated disc with L1-L3 hemangioma by MRI, lumbar paravertebral myositis and clinical bilateral L5-S1 lumbar radiculopathy. VA outpatient treatment records, dated from April 2000 to March 2006, note the Veteran's complaints of low back pain. But these records consistently indicate that his range of motion is intact, and that he has adequate muscle tone, no deformities, and no gross motor and sensory deficit. During a May 2006 VA compensation examination, the Veteran complained of low needle like back pain with radiation to his inguinal area down to his feet associated with numbness in his anterior thigh and cramps in his calves and thighs. He said he needed his wife's help for bathing, toileting, and dressing. He was able to walk unaided a few steps and had a slow, guarded gait. Upon attempting to conduct range-of-motion testing, the examiner noted the Veteran was not doing any kind of movements, claiming severe pain. The examiner was unable to state whether the Veteran was additionally limited by pain, fatigue, weakness or lack of endurance following repetitive use of the thoracolumbar spine without resorting to speculation because the Veteran refused, claiming severe pain and that he could fall. There was no muscle spasm or postural abnormality of the back or fixed deformities. The examiner noted diminished pinprick sensation in the legs, not following any specific dermatomal pattern (nonradicular), and positive Lasegue's sign bilaterally. There was no muscle atrophy of the lower extremities, normal muscle tone of the lower extremities, and muscle strength could not be reported due to poor muscular effort by the Veteran, again claiming pain. Knee and ankle jerks were absent bilaterally. At an April 2007 VA examination, the Veteran complained of daily, constant, moderate low back pain with radiation down into his left leg. He said his back condition was the same as it was during the prior May 2006 evaluation. He also reported symptoms of numbness, paresthesias, dizziness, fatigue, decreased motion, and spasms. He indicated that, during the past 12 months, he had experienced one episode of severe back pain for which he went to an orthopedic surgeon. He was treated with injection and rest for several days. He was not specific in terms of the exact date of that episode. Objective findings included bilateral spasm, guarding, pain with motion, tenderness, and weakness. These symptoms were not severe enough to be responsible for abnormal gait or abnormal spinal contour. He was described as having an antalgic gait and lumbar lordosis. There was no thoracolumbar spine ankylosis. Range of motion testing revealed flexion of zero to 20 degrees active and passive with pain beginning at 15 degrees, extension of zero to 15 degrees active and passive with pain beginning at zero degrees, bilateral lateral flexion and bilateral lateral rotation of zero to 20 degrees active and zero to 30 degrees passive with pain beginning at 15 degrees. Pain on repetitive use was noted on each range of motion, but there was no additional loss of motion on repetitive use of the joint. At a September 2009 VA examination, the Veteran stated that he needed help in dressing his lower body. Range of motion testing revealed flexion of zero to 30 degrees with pain beginning at 20 degrees, extension of zero to 10 degrees with pain beginning at 10 degrees, bilateral lateral flexion and bilateral lateral rotation of zero to 10 degrees active, with pain beginning at 0 degrees. The examiner opined that the Veteran had severe intensity of symptoms, limitation of motion and severe spasms. A July 2011 VA examination report reflects that the Veterans had a high school diploma and that his employment history consisted of occupations as a heavy machine operator and construction worker. The examiner noted that the Veteran could not find work in either of these areas. He was not able to climb a ladder or climb up into a bulldozer. The examiner opined that the Veteran was not employable in his previous line of work due to his service-connected lumbar degenerative joint disease, lumbar disc bulging disc L5-S1 and bilateral L5-S1 foraminal stenosis, bilateral clinical L5 and S1 radiculopathy. But this examiner added that the Veteran could still work in a sedentary type job, although he would need to be allowed to stretch his back muscles and stand for one or two minutes every half hour. In a March 2013 supplemental opinion, the July 2011 VA examiner further explained that in finding the Veteran capable of sedentary employment, his educational and work background had been considered. In this regard, the examiner found that because the Veteran had a high school diploma and thus would be able to read, write, and do at least simple arithmetic, he was qualified for and could perform administrative jobs as an office clerk or receptionist in which he greeted people, registered them, and oriented them to services provided. The examiner also found that the Veteran could perform jobs as a cashier at a movie theater or cafeteria. The examiner concluded that while employment options had been narrowed due to his physical limitations, he would still be able to perform these types of jobs within the restrictions imposed by his service-connected disabilities in light of his educational background. Based on the above evidence, the Board finds that the Veteran is able to obtain and maintain substantially gainful employment in a sedentary capacity, and therefore referral for extraschedular consideration of TDIU is not warranted. The July 2011 VA examination report and March 2013 addendum constitute highly probative evidence that the Veteran is able to do sedentary work, as the examiner's opinion is supported by a thorough explanation and is based on a review of the pertinent medical history, consideration of the Veteran's work and educational background, and the clinical findings made on examination. See Nieves-Rodriguez v. Peake, 22 Vet. App. at 304 (holding, in pertinent part, that the probative value of medical opinion comes from its reasoning); Prejean v. West, 13 Vet. App. 444, 448 (2000) (holding that the Board may determine the probative value of medical opinions based on their detail, the persuasiveness of their opinions, and the physicians' access to a veteran's medical records). While the Veteran's vocational background does not include the jobs mentioned by the examiner as examples, there is no evidence showing that the Veteran is unable to transition into sedentary work of this nature. The July 2011 VA examination report and March 2013 addendum carry more weight than the July 2003 opinion from the Veteran's private physician, which asserted that the Veteran was unable to do any type of work. This opinion is not supported by a rationale or explanation, and in particular does not address why the Veteran's service-connected physical disorders prevent him from doing sedentary work consistent with his educational background, with the basic accommodations mentioned in the July 2011 VA examination report. Thus, the July 2003 private physician's opinion has less probative value and therefore carries less evidentiary weight than the July 2011 VA examination report and March 2013 addendum, in which the examiner provided a thorough explanation consistent with the evidence of record. See Nieves-Rodriguez, 22 Vet. App. at 304 (holding, in pertinent part, that a medical opinion is not entitled to any weight if it only contains data and conclusions without supporting explanation); see also White v. Principi, 243 F.3d 1378, 1381 (Fed. Cir. 2001) (observing that the "treating physician" rule, whereby greater weight is generally accorded the findings of a treating physician than to other medical opinions, is not applicable in VA's legal framework for awarding veterans' benefits). In the joint motion for remand, the Board was instructed to consider the April 2007 VA examiner's finding that the Veteran's lumbar spine disorder and bilateral radiculopathy had significant effects on occupational activities, including with regard to mobility, carrying, reaching, and strength, and that these disorders prevented from engaging in chores, shopping, exercise, sports, recreation, and travel. These findings are not inconsistent with the July 2011 VA examiner's conclusion that notwithstanding the Veteran's exertional limitations in various areas, he could still perform sedentary work involving greeting people and doing basic transactions, such as in the capacity of a cashier at a movie theater or a receptionist, with the proviso that he be able to stand and stretch every thirty minutes. Moreover, the April 2007 VA examiner did not render an opinion on the issue of employability, while the July 2011 VA examination report and March 2013 addendum are specifically addressed to this issue. The Board was also instructed to consider the fact that, according to the Veteran's report at the April 2007 VA examination, his pain medication interfered with his ability to operate heavy machinery. While the dangers involved with operating heavy machinery might make any compromise in alertness due to medication especially inadvisable and disruptive, there is no evidence that the Veteran's pain medication generally affects his ability to think, concentrate, remain awake, and stay on task to the extent that it would have a significant impact on his ability to perform more basic sedentary tasks such as greeting and registering people at an office. The July 2011 VA examiner took this history into account in reviewing the file, and did not find that the Veteran's medications prevented him from doing such sedentary work. The Board was further instructed in the joint motion to consider medical evidence dated in 1996 and 2000 regarding the Veteran's then functional limitations. Specifically, treatment records dated in February and March 1996 reflect findings that the Veteran's "lower back was progressive and totally incapacitating for all jobs" and that the Veteran was unable to do jobs that required standing, sitting, walking, bending, lifting, or repetitious motion. Similarly, in a September/October 2000 treatment record, an orthopedic surgeon opined that the Veteran was unable to do any type of job that required lifting, carrying, prolonged standing or walking, bending, prolonged sitting, pushing, or pulling. As with the July 2003 opinion from the Veteran's treating physician, these opinions are not supported by any explanation and thus lack probative value. While many of these functional limitations, such as with regard to lifting, prolonged walking, lifting, or pulling, are apparent from the clinical findings of record addressing the Veteran's low back disorder and bilateral radiculopathy, some explanation is required as to why the Veteran would not be able to do sedentary work with basic accommodations such as the ability to stand and stretch every thirty minutes or so, as found in the July 2011 VA examination report. Moreover, because these records are dated several years prior to the present claim, they might not accurately reflect the level of severity of the Veteran's service-connected disorders during the pendency of this appeal. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Thus, the Board gives more weight to the July 2011 VA examination report and the March 2013 addendum, as the examiner's opinion is supported by an explanation. Moreover, the examiner not only conducted a physical examination of the Veteran but also had the benefit of reviewing these and subsequent medical records and nevertheless concluded that the Veteran was not precluded from substantially gainful employment in a sedentary capacity. The Board also has considered the April 1997 SSA decision. While SSA decisions are relevant, they are not controlling on the Board. See Odiorne v. Principi, 3 Vet. App. 456, 461 (1992). In this regard, SSA's legal criteria for assessing disability for Social Security benefits purposes differs in important respects from VA's own framework for determining entitlement to a TDIU. Because of this, the Board is not bound by the findings of disability and/or unemployability made by other agencies, including SSA. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) (indicating the SSA's favorable determination, while probative evidence to be considered in a claim with VA, is not dispositive or altogether binding on VA since the agencies have different disability determination requirements). See also Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). For example, unlike SSA, VA does not take into account age in making this determination, and does not place the same emphasis on the opinions of treating physicians. See 38 C.F.R. §§ 3.341(a); see also White, 243 F.3d at 1380-81 (observing that although SSA has adopted the treating physician rule, which was "specifically designed to address problems generated by the Social Security system," such a rule is inconsistent with VA's own statutory and regulatory scheme for administering benefits). Thus, while a given SSA decision might depend to a large extent on the opinion of a treating physician (regardless of whether the opinion was favorable or unfavorable to the claim, as noted in White), VA must analyze and weigh all the evidence of record under one standard - namely the benefit-of-the-doubt rule - to include whether there is supportive reasoning for a given medical opinion and the persuasiveness of such reasoning. See White, 243 F.3d at 1381; Caluza v. Brown, 7 Vet. App. 498, 506 (1995); see also 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Nieves-Rodriguez, 22 Vet. App. at 304. In this case, and with this in mind, the Board has reviewed the same evidence that was apparently available to the SSA at the time of its decision, in addition to the evidence subsequent to that date, and finds that under VA law such evidence does not show unemployability for TDIU purposes. In particular, the Board gives more weight to the July 2011 VA examination report and March 2013 addendum than to the SSA decision, as it is tailored to VA's criteria for determining unemployability and provides a thorough explanation for the examiner's conclusion that the Veteran would be able to do sedentary work with basic accommodations within the restrictions of his service-connected physical limitations and in keeping with his educational background. Accordingly, the preponderance of the evidence shows that the Veteran's service-connected disabilities are not sufficiently incapacitating as to prevent him from obtaining or maintaining substantially gainful employment, but rather that he can still work in a sedentary capacity with certain reasonable accommodations that do not take his employment capacity to within the realm of what could just be considered marginal employment. 38 C.F.R. § 4.18, Therefore, referral for extraschedular consideration of entitlement to a TDIU is unwarranted. See 38 C.F.R. § 4.16(b). As the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule does not apply, and entitlement to a TDIU is denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER The claim of entitlement to a TDIU is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs