Citation Nr: 1341633 Decision Date: 12/17/13 Archive Date: 12/31/13 DOCKET NO. 05-12 683 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for hypertension, to include as due to exposure to an herbicidal agent. 2. Entitlement to service connection for a heart disorder, to include as due to exposure to an herbicidal agent. 3. Entitlement to a total rating based on individual unemployability. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney at Law ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to October 1969. With respect to the Veteran's claim of entitlement to a total rating based on individual unemployability (TDIU), this matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision by the Department of Veteran Affairs (VA) Regional Office in Muskogee, Oklahoma (RO). With respect to the claims of entitlement to service connection for hypertension and for a heart disorder, both to include as due to exposure to an herbicidal agent, these matters come before the Board on appeal from a September 2009 rating decision by the RO. FINDINGS OF FACT 1. The Veteran had service in Vietnam during the Vietnam Era and is presumed to be exposed to herbicides. 2. Hypertension was not present in service, was not manifested to a compensably disabling degree within the first year after the Veteran completed his active service, and is not shown to be etiologically related to service, to include presumed herbicide exposure. 3. Heart disorders, diagnosed as hypertensive heart disease, arrhythmia, cardiac hypertrophy, and supraventricular tachycardia, were not present in service, were not manifested to a compensably disabling degree within the first year after the Veteran completed his active service, and are not shown to be etiologically related to service, to include presumed herbicide exposure. 4. The Veteran's service-connected disabilities consist of right ear hearing loss, rated as noncompensable (zero percent) disabling, and tinnitus, rated as 10 percent disabling, with a combined disability rating of 10 percent. 5. Evidence of record does not indicate that the Veteran's service-connected disabilities alone preclude him from engaging in substantially gainful employment that is consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. Hypertension was not incurred in or aggravated by active military service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 2. A heart disorder was not incurred in or aggravated by active military service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 3. The criteria for entitlement to TDIU are not met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.340, 3.341, 4.16, 4.25 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist With respect to the Veteran's service connection and TDIU claims herein, 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 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). The RO's June 2004, July 2004, June 2009, and September 2009 letters, provided both before and after the initial adjudication of the TDIU claim in September 2004 and of the service connection claims on appeal in September 2009, advised the Veteran of the foregoing elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). These letters also provided the Veteran with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). Accordingly, with these letters, the RO effectively satisfied the remaining notice requirements with respect to the issues on appeal. After the notice letters were provided to the Veteran, the claims were readjudicated in an October 2012 supplemental statement of the case. Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (finding that VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating claim and notifying claimant of such readjudication in the statement of the case). In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's available service treatment records, service personnel records, and post-service VA and private treatment records have been obtained and associated with the claims file. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). The Veteran was also provided with VA examinations in conjunction with the service connection claims on appeal in February 2010 and July 2012 to determine the nature and etiology of his hypertension and heart disorders. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159; see McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). In an October 2013 statement, the Veteran's attorney argued that the July 2012 VA Heart Conditions Disability Benefits Questionnaire (DBQ) report was inadequate. The attorney first asserted that the July 2012 DBQ report failed to consider a direct service connection between the Veteran's heart condition and his exposure to Agent Orange while serving in Vietnam. The attorney also contended that the medical opinion provided by the examiner was based on an inaccurate factual premise and that the examiner failed to review relevant documents in the record, specifically medical treatise evidence that opined that there was a direct link between hypertension and hypertensive heart disease due to herbicide exposure. The Board finds the contentions of the Veteran's attorney to be unpersuasive and without merit. The attorney seems to be trying to use her submission of outdated and speculative medical treatise evidence from 2007 and 2009 to attempt to twist or invalidate the July 2012 VA examiner's discussion of pertinent findings in current medical literature concerning the relationship between the claimed disorders and herbicide exposure. The Board has found the July 2012 VA Heart Conditions DBQ report to be entirely adequate, as it was based upon a complete review of the evidence of record (as specifically marked by the examiner in the DBQ report), consideration of the Veteran's lay statements as well as current medical literature, and clinical examination of the Veteran. The examiner also clearly addressed both presumptive and direct theories of entitlement to service connection for the claimed heart and hypertension disorders, to include whether the Veteran's claimed disorders were etiologically related to presumed herbicide exposure in Vietnam. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran was also provided with VA examination regarding his claim for entitlement to TDIU in January 2012. The Board finds the January 2012 VA examination report to be thorough and adequate upon which to base a decision with regard to the Veteran's claim. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to determine whether the Veteran could obtain and maintain substantially gainful employment due to his service-connected disabilities alone. Therefore, the available records and medical evidence have been obtained in order to make adequate determinations as to these claims. The Veteran's claims were previously before the Board in August 2009, October 2011, and April 2012 and remanded for additional evidentiary development, to include obtaining outstanding VA treatment records, affording the Veteran the opportunity to identify any additional pertinent records not associated with the claims file, and obtaining VA examinations. The Board finds substantial compliance with the August 2009, October 2011, and April 2012 remand orders. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. Claims of Entitlement to Service Connection Historically, in April 2004, the Veteran submitted a claim of entitlement to service connection for hypertension. After this claim was denied in a September 2004 rating decision, the Veteran perfected an appeal. In the March 2007 decision, the Board denied the Veteran's claim because the Veteran's service treatment records did not demonstrate complaints of or treatment for hypertension. Further, the Board found that the first post-service evidence of record demonstrating complaints of or treatment for hypertension was dated in 1998. Moreover, there was no competent evidence of record relating the Veteran's hypertension to his active duty service. The Board also found that the Veteran did not assert that he continuously experienced hypertension, or symptoms thereof, since his active duty discharge. In June 2009, the Veteran submitted a claim to reopen the issue of entitlement to service connection for hypertension, to include as due to exposure to an herbicidal agent. At that time, the Veteran also filed a claim of entitlement to service connection for a heart disorder, to include as due to exposure to an herbicidal agent. In September 2009, the RO denied reopening the Veteran's service connection claim for hypertension as well as denied entitlement to entitlement to service connection for a heart disorder, to include as due to exposure to an herbicidal agent. The Veteran perfected an appeal for both matters. In a July 2011 rating decision, the RO denied entitlement to service connection for ischemic heart disease. During the pendency of this appeal, the Veteran's service connection claim for hypertension was reopened, but denied in an August 2011 statement of the case. The Veteran's claims were then certified to the Board for appellate review. In April 2012, the Board reopened the Veteran's claim of entitlement to service connection for hypertension then remanded the matter to obtain an opinion addressing whether the Veteran's current hypertension was due to his presumed in-service exposure to an herbicidal agent or otherwise related to his active duty service. The Board also remanded the matter of entitlement to service connection for a heart disorder to obtain etiological opinion regarding whether any present heart disorder was incurred in or due to the Veteran's active duty service, or whether any present heart disorder was related to his in-service exposure to an herbicidal agent, as the February 2010 VA examination was found to be inadequate for purposes of determining service connection. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013). Service connection may also be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). Service connection may be established under the provisions of 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during the applicable presumptive period. For certain chronic disorders, such as cardiovascular-renal disease (including hypertension), service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). In addition, service connection on the basis of continuity of symptomatology can only be established for the chronic diseases as specified at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). With chronic disease 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. 38 C.F.R. §§ 3.303(b), 3.307. 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 clear-cut 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 in 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 discharge is required to support the claim. 38 C.F.R. § 3.303(b). 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." 38 U.S.C.A. § 1116(f) (West 2002). Moreover, VA regulations provide that, if a veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for certain disorders if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there was no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. Significantly, on October 13, 2009, in accordance with authority provided in 38 U.S.C.A. § 1116, the Secretary of VA announced his decision to establish presumptions of service connection, based upon exposure to herbicides within the Republic of Vietnam during the Vietnam era, for additional conditions, to include ischemic heart disease. The final rule was issued in August 2010 and became effective August 31, 2010. See 75 Reg. 53, 303 (Aug. 31, 2010). The amended 38 C.F.R. § 3.309(e) indicates that ischemic heart disease includes, but is not limited to, "acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary artery bypass surgery; and stable, unstable and Prinzmetal's angina." See 75 Reg. at 53, 216; 38 C.F.R. § 3.309(e). However, Note 3 provides that for purposes of this section, the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. Based on the Veteran's active duty service in the Republic of Vietnam, as documented in his service personnel records, he is presumed to have been exposure to an herbicidal agent. Hypertension as well as the Veteran's other diagnosed heart disorders are not among the list of diseases enumerated under 38 C.F.R. § 3.309(e) available on a presumptive basis in situations where a veteran was exposed to an herbicidal agent during active duty service. The contrary is in fact shown. As noted, the recently revised 38 C.F.R. § 3.309(e) explicitly excludes hypertension from being among the diseases presumed to be related to herbicide exposure. This does not, however, preclude the Veteran from establishing service connection for hypertension on direct basis, to include as due to exposure to an herbicidal agent. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service treatment records did not show any treatment for hypertension or any other heart disorder. An October 1966 service enlistment examination report revealed normal heart evaluation and a blood pressure reading of 130/80. An October 1969 service enlistment examination report revealed normal heart evaluation and a blood pressure reading of 136/70. Post-service private treatment reports from Clinton R. Strong Clinic dated from April 1986 to April 2000, demonstrated complaints of and treatment for hypertension, tachycardia, and cardiac arrhythmia. VA treatment records dated from 1998 to 2011 showed findings of hypertension and cardiac dysrrythmias. In January 2003, the Veteran was noted to have complaints of chest pain. Results of a cardiac stress test conducted that same month were listed as within normal limits. An August 2007 treatment record showed an assessment of hypertension and atypical chest pain with complaints of palpitations. In June 2009, the Veteran submitted a variety of articles concerning a potential etiological relationship between exposure to an herbicidal agent, namely Agent Orange, and hypertension. In an article entitled "Agent Orange Linked to High BP in Veterans", it was noted that a panel of the U. S. Institute of Medicine (IOM) reported that exposure to the defoliant herbicide Agent Orange during the Vietnam War may be raising blood pressure levels for the aging veterans of that conflict. Due to the inconsistent results of the study, IOM said the evidence was suggestive of, but insufficient to conclude with certainty, that exposure to the herbicide leads to high blood pressure. In additional articles dated in September 2007, it was again noted that Vietnam War veterans who were exposed to Agent Orange and other herbicides may be at increased risk of developing hypertension, according to a report from IOM. In a copy of a 2006 Update from Vietnam and Agent Orange, it was noted that the present committee had concluded that there was suggestive evidence of a link between exposure to herbicides in Vietnam and hypertension. The Veteran submitted a statement, dated in July 2009, wherein he asserted that received no "formal medical care" from the date of his active duty discharge until treatment for hypertension on April 21, 1986. In private treatment notes of record for that date, the Veteran was treated for complaints of dizziness, lightheadedness, and "some" shortness of breath. His blood pressure was 230/144. No diagnosis was provided on that occasion, but the Veteran appeared two days later for a follow-up appointment. It was noted that he was there for a "re-check" of his hypertension. The Veteran was afforded a VA examination in February 2010. As demonstrated by the resulting examination report, the Veteran's claims file was not made available to the examiner for contemporaneous review. After a thorough review of the Veteran's medical history, as reported by the Veteran, and a physical examination, the diagnoses were hypertensive heart disease with an ejection fraction of 60 to 65 percent, and hypertension, currently on medication. Testing conducted in February 2010 and March 2010 revealed findings consistent with hypertensive heart disease but was negative for exercise-induced ischemia. In November 2011, the Veteran's attorney submitted copies of three additional medical articles dated in 2007 and 2009. Articles dated in July 2007 from the Washington Post and ScienceDaily noted that exposure to Agent Orange in Vietnam may lead to high blood pressure in some veterans, but that evidence was limited and only suggestive. A finding of "limited or suggestive evidence of an association" means that scientific studies of adequate quality have yielded information pointing to a possible statistical link or plausible biological means by which exposure to the chemicals of concern could result in a particular health effect, but that contradictory results from other studies, biases, or other confounding factors limit the certainty of the evidence. A July 2009 article from ScienceDaily discussed a new report from IOM that found suggestive but limited evidence that exposure to Agent Orange and other herbicides used during the Vietnam War was associated with an increased chance of developing ischemic heart disease and Parkinson's disease for Vietnam veterans. In a November 2011 statement, the Veteran's attorney cited to another internet research article from July 2007. See http://www.webmd.com/hypertension-high-blood-pressure/news/20070727/agent-orange-high-bp-may-be-linked (November 14, 2011). The attorney noted that the article stated: In a report that could affect millions of veterans, an expert panel concluded for the first time Friday that the Vietnam-era defoliant Agent Orange may be linked to hypertension in former soldiers. The report issued by the Institute of Medicine, is only the first step in a process used by the government to determine which health problems are connected to war service and therefore qualified for veterans' health benefits. In a July 2012 VA Heart Conditions DBQ report, the examiner listed diagnoses of supraventricular arrhythmia and hypertensive heart disease. It was specifically noted that none of the Veteran's heart conditions qualified within the generally accepted medical definition of ischemic heart disease. The Veteran was noted to have cardiac hypertrophy documented by echocardiogram as well as supraventricular tachycardia with episodes documented by Holter and the Veteran's self report of one episode per month. In an attached July 2012 VA Hypertension DBQ, the examiner listed a diagnosis of hypertension first diagnosed in 1986. After discussing a detailed review of the claims file, the examiner opined that the claimed conditions were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. In the cited rationale regarding the Veteran's heart disorders, the examiner reported that there was no entry for cardiac problems or arrhythmia in the Veteran's service record. It was noted that there was no evidence that the Veteran's arrhythmias or hypertensive heart disease were related to military service. The examiner further indicated that the current medical literature addressed ischemic heart disease and the relationship to herbicidal agents. It was noted that there was no current standard of knowledge relating arrhythmias or hypertensive heart disease to herbicidal agent exposure. As the current medical information changes, the examiner commented that it would be appropriate to review the case in consideration of the new information. In the cited rationale regarding the Veteran's hypertension, the examiner highlighted that the Veteran's diagnosis of hypertension was made more than 15 years after his exit from military service. The examiner indicated that there was not documentation of elevated blood pressure while in service. The examiner then noted that there was no current consensus of medical evidence showing a direct connection between later onset hypertension and exposure to herbicidal agents. As more information becomes available, the examiner commented that it may be appropriate to review this claim. At the end of each opinion, the examiner acknowledged that he had reviewed the conflicting medical evidence. In a final NOTE on the report, it was indicated that VA may request additional medical information, including additional examinations if necessary to complete VA's review of the Veteran's application. Entitlement service connection for hypertension and for any other diagnosed heart disorder is not warranted. As an initial matter, there is no factual basis in the record that hypertension or any other diagnosed heart disorder were incurred during service, or manifested as a chronic disease within a year thereafter, or for several years after his discharge from service in 1969. Available service treatment records do not reflect findings of hypertension, elevated blood pressure, or any other heart disorder at military service discharge. Post-service medical evidence of record first showed findings of hypertension and other diagnosed heart disorders many years after the Veteran's separation from active service. The passage of many years between discharge from active service and the continuity of symptomatology or medical documentation of a claimed disability are factors that tend to weigh against a claim for service connection. Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). Evidence of record clearly reflects that hypertension or any other diagnosed heart disorder was not manifested to a compensably disabling degree within the first year after the Veteran completed his active service in 1969. The Board is cognizant that post-service medical evidence of record clearly showed findings of hypertension, tachycardia, arrhythmias, cardiac hypertrophy, and hypertensive heart disease. In addition, as the Veteran served in Vietnam, his exposure to herbicides is presumed and is characterized an incurrence of an in-service injury. However, significantly, the record does not include any probative medical evidence or opinion suggesting a causal relationship between the Veteran's hypertension or his other diagnosed heart disorders and his active military service, and neither the Veteran nor his attorney has identified or alluded to the existence of any such opinion. In fact, in the July 2012 VA Heart Conditions DBQ report, the examiner specifically opined that the claimed heart conditions were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness, to include exposure to herbicidal agents. The examiner provided a complete rationale for the stated opinions, citing to a detailed review of the evidence of record and current medical literature on these matters. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). In contrast, the Veteran and his attorney submitted outdated internet articles from 2007 and 2009 discussing the possible connection between herbicides and hypertension. A medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discussed generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Sacks v. West, 11 Vet. App. 314 (1998); see also Wallin v. West, 11 Vet. App. 509 (1998) (finding that medical treatise evidence discussed generic relationships with a degree of certainty to establish a plausible causality of nexus); Mattern v. West, 12 Vet. App. 222, 228 (1999). Here, the outdated internet research materials associated with the file are of very little probative value, as they were general as well as speculative in nature, did not specifically relate to the facts and circumstances surrounding this particular case, and were not accompanied by the opinion of any medical expert. Moreover, and of significant import, the Board notes that the recent revision to 38 C.F.R. § 3.309(e) considered the question of whether there was an etiological link between herbicide exposure and hypertension. In determining that there was no such link, VA referenced, discussed, and weighed the findings of IOM studies that pertained to this question. 75 Fed. Reg. 53204 (2010). VA indicated that its negative determination was based, in part, on the finding that while herbicide agents had been found to affect the muscle of the heart (e.g., ischemic heart disease), the IOM study had concluded that hypertension is not a condition that affects the muscles of the heart. As such, the Board finds that the most persuasive medical evidence that specifically addresses the question of whether the Veteran's claimed hypertension and other diagnosed heart disorders are etiologically or causally related to events in service, to include presumed herbicide exposure, weighs against the claims. Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion he reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). The statements from the Veteran and his attorney that the Veteran's hypertension and other diagnosed heart disorder are related to active service, to include presumed herbicide exposure, are not competent. Evidence of the etiology of the Veteran's hypertension and other heart disorders requires medical diagnosis based on diagnostic testing, which the Veteran and his attorney are not trained to perform. See Jandreau v. Nicholson, 492 F.3d at 1377 (holding that whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the United States Court of Appeals for Veterans Claims). The Board is cognizant that the Veteran's statements are competent evidence as to observable symptomatology, including chest pain and palpitations. See Barr, 21 Vet. App. at 307 (noting that lay testimony is competent to establish observable symptomatology but not competent to establish medical etiology or render medical opinions); Washington v. Nicholson, 21 Vet. App. 191, 195 (2007) (holding that, "[a]s a layperson, an appellant is competent to provide information regarding visible, or otherwise observable, symptoms of disability"). However, the statements that the Veteran's hypertension or other diagnosed heart disorders were incurred during or as a result of service draw medical conclusions which the Veteran is not qualified to make. Although lay persons are competent to provide opinions on some medical issues, the etiology of the Veteran's hypertension and other diagnosed heart disorders falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau, 492 F.3d at 1377. Accordingly, service connection for hypertension and for a heart disorder, to include as due to exposure to an herbicidal agent, is not warranted. The evidence of record simply does not establish either on a direct or presumptive basis that the Veteran's hypertension or other diagnosed heart disorders were caused by his military service. In arriving at the decision to deny the claims, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Entitlement to TDIU Review of the record revealed that the Veteran filed a claim of entitlement to TDIU in April 2004. 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. § 3.340 (2013). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and if there are two or more 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 above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; (2) Disabilities resulting from common etiology or a single accident; (3) Disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) Multiple injuries incurred in action; or (5) Multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16 (2013). It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a) (2013). While the regulations do not provide a definition of "substantially gainful employment," the VA Adjudication Procedure Manual defines the term as that "at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the veteran resides." VA Adjudication Procedure Manual, M21-1 MR, Part IV, Subpart ii, Chapter 2 (Dec. 13, 2005) (previously cited at M21-1, Part IV, paragraph 7.09). Also, 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 a veteran actually works and without regard to a veteran's earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to TDIU rating is whether his service-connected disabilities alone are of sufficient severity to produce unemployability. If the scheduler rating is less than 100 percent, the issue of unemployability must be determined without regard to the advancing age of the veteran. 38 C.F.R. §§ 3.341(a), 4.19 (2013). Factors to be considered are the veteran's education, employment history, and vocational attainment. Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). A high disability rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. However, the question in a total rating case based upon individual unemployability due to service-connected disabilities is whether the veteran is capable of performing the physical and mental acts required by employment and not whether the veteran is, in fact, employed. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). For those veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), total disability ratings for compensation may nevertheless be assigned when it is found that the service-connected disabilities are sufficient to produce unemployability. These cases should be referred for extraschedular consideration. 38 C.F.R. § 4.16(b) (2013). Finally, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact. The Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim: the veteran prevails in either event. However, if the weight of the evidence is against the veteran's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102 (2013). The Veteran is seeking a total disability rating based on individual unemployability. His service-connected disabilities consist of right ear hearing loss, rated as noncompensable (zero percent) disabling, and tinnitus, rated as 10 percent disabling. His combined service-connected disability rating is 10 percent. 38 C.F.R. § 4.25 (2013). As such, the Veteran does not meet the percentage threshold requirements provided in 38 C.F.R. § 4.16(a) for consideration of entitlement to a total rating based on individual unemployability, because the Veteran's combined rating for his service-connected disabilities is not 70 percent or more. Therefore, he is not entitled to a TDIU rating on a scheduler basis. For those veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), total disability ratings for compensation may nevertheless be assigned when it is found that the service-connected disabilities are sufficient to produce unemployability. As noted above, those cases should be referred for extraschedular consideration under 38 C.F.R. § 4.16(b) (2013). At that time of his April 2004 claim, the Veteran reported education through high school and employment as a railroad trainman through May 1995, at which time he asserted he became too disabled work. The Veteran has contended that his hearing disability forced him into disability retirement in 1995. In an August 2004 VA examination report, the examiner listed diagnoses of right ear sensorineural hearing loss and tinnitus. The examiner also noted that the Veteran's left ear was completely "dead." With respect to the Veteran's employability, the examiner opined that, due to hearing loss in the right ear and no hearing in the left ear, it would be "difficulty" for the Veteran to obtain or maintain gainful employment in his field of expertise. In a September 2004 rating decision, the RO denied entitlement to TDIU. The Veteran perfected an appeal for that matter. In March 2007, the Board denied the Veteran's claim of entitlement to TDIU consequent to the findings from the August 2004 VA examination. Subsequent to that decision, the Veteran appealed to the Court of Appeals for Veterans Claims (Court). In November 2008, based on a Joint Motion for Partial Remand (Joint Motion), the Court remanded the Board's March 2007 decision with respect to the issue of entitlement to TDIU for further development in compliance with the directives of the Joint Motion. Specifically, the Joint Motion found that the August 2004 VA examiner's opinion as to the Veteran's inability to obtain and maintain gainful employment was not based on the Veteran's service-connected disabilities alone. As such, the Court directed the Board to address whether it was necessary to seek another medical opinion as to how the Veteran's employability was affected by his service-connected disabilities. In August 2009, the Board remanded the claim for further development, to include affording the Veteran another VA examination to ascertain his employability with respect to only his service-connected disabilities. In January 2010, the Veteran underwent a VA examination to ascertain whether his service-connected disabilities prevented him from obtaining or retaining substantially gainful employment commensurate with his education and experience. At the time of the examination, service connection was in effect for tinnitus, which was rated as 10 percent disabling, and right ear hearing loss, which was assigned a noncompensable rating. After a thorough audiological examination, the diagnosis was moderate to moderately-severe right ear sensorineural hearing loss, and no measurable response in the Veteran's left ear. The examiner then opined: Today's results are unchanged as compared to previous testing. The [V]eteran's current level of hearing loss and tinnitus does not prevent him from obtaining or maintaining gainful employment consistent with his education and occupational experience. In October 2011, the Board again remanded the claim for further development. While the Board found that the January 2010 VA examiner addressed the salient issue presented by the Veteran's case, it determined that the examiner did not provide an explanation as to how that conclusion was reached or state upon what evidence it was based. The Board also determined that the examination did not substantially comply with the directives of the August 2009 remand, especially in light of the November 2008 Joint Motion. See Stegall v. West, 11 Vet. App. 268 (1998). The Board instructed the RO to obtain a supplemental opinion from the January 2010 VA examiner or afford the Veteran another VA examination. In the January 2012 VA Hearing Loss and Tinnitus DBQ, the examiner listed diagnoses of tinnitus, right ear sensorineural hearing loss, and left ear sensorineural hearing loss, noting that the Veteran's left ear sensorineural hearing loss was not a service-connected disability. It was indicated that the Veteran had the same hearing loss in the left ear at service entrance as he did at service discharge. The examiner indicated that the Veteran's tinnitus did not impact the ordinary conditions of daily life, including his ability to work. However, it was noted that the Veteran's hearing loss did impact the ordinary conditions of daily life, including the Veteran's ability to work. The Veteran asserted that he has great difficulty hearing and understanding under a variety of circumstances even using a hearing aid in his right ear only. Addressing whether the Veteran could obtain and retain employment consistent with his education, the examiner remarked that the Veteran did not obtain schooling beyond high school, noting that most jobs would be applicable. Thus, hearing loss in the right ear and tinnitus would not preclude him from obtaining and retaining employment as there are a wide variety of jobs to pull from and not all of them require good hearing. Additionally, the examiner indicated that the Veteran had unaided word recognition ability in the right ear of 88 percent. Addressing whether the Veteran could obtain and retain employment consistent with his occupational experience, the examiner noted that the Veteran was a railroad conductor at the end of employment years and that those jobs required that the individual have good hearing or that the hearing can be improved with remediation, e.g. hearing aids in this case. Looking only at the Veteran's service-connected right ear hearing loss, the examiner indicated that the right ear could be remediated with hearing aids, and therefore, the Veteran could have continued to work as a conductor as there are railroad conductors employed today who wear hearing aids. The examiner commented that the problem for the Veteran in this case was that his non-service connected left ear was unaidable. Thus, the Veteran asserted he was made to take disability retirement. Based on the foregoing, the examiner opined that taking only the Veteran's service-connected right ear hearing loss and tinnitus into account, he is able to obtain and retain employment consistent with his education and occupational experience. In April 2012, the Board remanded the issue of TDIU for contemporaneous adjudication due to previously pending service connection claims adjudicated above. The Board has determined that the most probative (persuasive) evidence that specifically addresses the question of whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected right ear hearing loss and tinnitus disabilities weighs against the claim. Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion he reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). The January 2012 VA examiner based the opinion that, taking only the service-connected right ear hearing loss and tinnitus into account, the Veteran was able to obtain and retain employment consistent with his education and occupational experience, on his review of the Veteran's entire claims file. He discussed the medical evidence of record and the lay assertions of the Veteran as well as provided a detailed rationale for his conclusions, considering only impairment from the Veteran's service-connected disabilities. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). In recognition of the severity of and impairment caused by his service-connected right ear hearing loss and tinnitus disabilities, the Veteran is currently rated as a combined 10 percent disabled. Based on the evidence discussed above, the Board finds that a preponderance of the evidence of record does not demonstrate that the Veteran's service-connected right ear hearing loss and tinnitus disabilities alone actually preclude him from engaging in substantially gainful employment. Thus, entitlement to TDIU due to the Veteran's service-connected right ear hearing loss and tinnitus disabilities is not warranted. In this case, the Board observes that the Veteran is competent to report symptoms associated with his service-connected right ear hearing loss and tinnitus disabilities as well as their effects on his daily life and occupation. Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding Veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). However, as a layman, without the appropriate medical training and expertise, he is not competent to provide a probative (persuasive) opinion on a medical matter, especially as to whether he is able to secure substantially gainful employment due to his service-connected right ear hearing loss and tinnitus disabilities. See Barr v. Nicholson, 21 Vet. App. at 307 (noting that lay testimony is competent to establish observable symptomatology but not competent to establish medical etiology or render medical opinions). For the foregoing reasons, the claim for entitlement to TDIU must be denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for hypertension, to include as due to exposure to an herbicidal agent, is denied. Entitlement to service connection for a heart disorder, to include as due to exposure to an herbicidal agent, is denied. Entitlement to a total rating based on individual unemployability is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs