Citation Nr: 1456572 Decision Date: 12/24/14 Archive Date: 01/02/15 DOCKET NO. 06-19 045 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to a total rating on the basis of individual unemployability due to service- connected disability (TDIU). ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from November 1968 to March 1970. This matter comes before the Board of Veterans' Appeals (the Board) from an April 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which denied entitlement to an increased evaluation in excess of 10 percent for service connected chronic brain syndrome residual of encephalitis. In April 2006, the Veteran filed a notice of disagreement (NOD). The Veteran was provided with a statement of the case (SOC) in May 2006. The Veteran perfected his appeal with the timely submission of a VA Form 9 in June 2006. The Board remanded the issue of entitlement to an increased evaluation in excess of 10 percent for service connected chronic brain syndrome residual of encephalitis to the RO for additional development in July 2008 and April 2009. After such development was concluded, in September 2011, the Board rendered a decision denying entitlement to an increased evaluation in excess of 10 percent for service connected chronic brain syndrome residual of encephalitis. However, in that same decision, in accordance with the holding of the United States Court of Appeals for Veterans Claims (the Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Board inferred a claim for entitlement to TDIU, as the Veteran's original claim was for an increased evaluation and he had indicated that he was no longer able to work as a result of his condition. The Board, thereafter, remanded the issue of entitlement to TDIU for further development. A September 2013 rating decision and Supplemental Statement of the Case (SSOC) by the RO in Reno, Nevada, denied entitlement to TDIU, thus the issue was returned to the Board for further consideration. In an April 2014 remand, the Board again returned the claim to the RO for further development. That development having been completed, this claim is once again before the Board. The Board has not only reviewed the Veteran's physical claims file, but also his electronic claims file to ensure a total review of the evidence. FINDINGS OF FACT 1. The Veteran is service connected for an essential tremor, evaluated at 30 percent disabling, and chronic brain syndrome residual of encephalitis, evaluated at 10 percent disabling. The Veteran has a combined evaluation of 40 percent. 2. The combined service-connected disability rating does not meet the schedular percentage criteria for TDIU and the Veteran's service-connected disabilities do not prevent him from engaging in gainful employment. CONCLUSION OF LAW The criteria for entitlement to TDIU have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. § 4.16 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). This notice must be provided prior to an initial RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). VCAA notice requirements apply to all five elements of a service connection claim, including: (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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In a claim for an increased evaluation, as in the case of the TDIU claim, the VCAA requirement is generic notice: the type of evidence needed to substantiate the claim, which consists of evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Defective timing or content of VCAA notice is not prejudicial to a claimant if the error does not affect the essential fairness of the adjudication, such as where (1) the claimant demonstrates actual knowledge of the content of the required notice; (2) a reasonable person could be expected to understand from the notice what was needed; or (3) a benefit could not have been awarded as a matter of law. Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007), rev'd on other grounds, Shinseki v. Sanders/Simmons, 556 U.S. (2009). Defective timing may be cured by a fully compliant notice letter followed by a readjudication of the claim. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, VA's duty to notify has been satisfied. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The RO informed the Veteran of VA's duty to assist him in the development of his claim in letters dated August 2005, December 2005, March 2006, and August 2012 that contained all of the required notice. The Veteran has not been shown any prejudice in regard to the timing or content of the notice provided. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). VA's duty to assist the Veteran has also been satisfied. 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(c)(1)-(3). The Veteran's service treatment records (STRs) and VA outpatient treatment records have been obtained and associated with the claims file. The duty to assist also includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, VA medical records and relevant social security administration (SSA) records. 38 C.F.R. § 3.159(c)(2); Golz v. Shinseki, 590 F.3d 1317, 1321-23 (Fed. Cir. 2010). The record indicates that the RO attempted to obtain any records for the Veteran, but was informed by the SSA that the Veteran had never submitted a claim and no documents were available. Additionally, VA provided the Veteran with medical examinations that were adequate because the expert reviewed the claims file, took a full medical history, conducted the appropriate diagnostic testing, and provided rationales for the ultimate medical opinions. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The record does not indicate that any additional evidence relevant to the claim is available, which is not already a part of the claims file. See Pelegrini, 18 Vet. App. at 121-22. 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, 542-43 (2006), aff'd, Mayfield v. Nicholson, 499 F.3d 1317 (2007); see also Dingess/Hartman, 19 Vet. App. at 486. The Board also finds that there has been substantial compliance with the mandates of the prior remands and will proceed to adjudicate the appeal. See Dyment v. West, 13 Vet. App. 141 (1999) (noting that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A or 38 C.F.R. § 3.159. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). In adjudicating the claims below, the Board has reviewed all of the evidence in the Veteran's claims file including those found in Virtual VA and the Veteran's Benefits Management System (VBMS). Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims files shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Legal Criteria The Veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2014). Consideration may be given to his level of education, special training, and previous work experience in making this determination, but not to his age or impairment caused by disabilities that are not service connected. 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19 (2014). To qualify for a total rating for compensation purposes, the evidence must show (1) a single disability rated as 100-percent disabling; or (2) that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and that - if there is only one service-connected disability, it is rated as at least 60-percent disabling, or, if more than one disability, at least one disability is rated as at least 40-percent disabling and the Veteran has a combined rating of at least 70 percent. Id. But see, in particular, 38 C.F.R. § 4.16(a). If, however, the Veteran does not meet these required percentage standards set forth in 38 C.F.R. § 4.16(a), he still may receive a TDIU on an extraschedular basis if it is determined that he is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. 38 C.F.R. § 4.16(b). See also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, there must be a determination as to whether there are circumstances in this case, apart from any non-service connected conditions and advancing age, which would justify a total rating based on unemployability. See Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). While the regulations do not provide a definition of "substantially gainful employment," VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), defines the term 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." Also, in Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims (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...." In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the Court also discussed the meaning of "substantially gainful employment." And in this context, the Court noted the following standard announced by the United States Federal Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Marginal employment, for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment." 38 C.F.R. § 4.16(a). See also Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). That is, a Veteran may be considered as unemployable upon termination of employment that was provided on account of disability or in which special consideration or accommodation was given on account of the same. See 38 C.F.R. § 4.18. The Board is precluded from assigning an extraschedular rating in the first instance. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). See also Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrent symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 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); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C.A. § 5107(a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). The Board shall consider all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Background The Veteran contends that he is unable to work as a result of his service connected disabilities. In his August 2012 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, he stated that he last worked full time on September 10, 1993 as a truck driver. He further indicated that his educational and training background included culinary skills and management. The Veteran's service treatment reports show that in July 1969, he was hospitalized for about ten days, with diagnoses of encephalitis, Japanese B, and chronic brain syndrome. He was noted to have a history of fever and grand mal seizures. Reports, dated in 1970, indicate that he exhibited depression and signs of personality changes, that he had a "definite impairment of social and industrial adaptability," and that he was found to be unfit for service. The post-service medical evidence includes a May 1970 VA examination report which noted that no clear-cut neurological disease was found, and that there was a history of organic brain syndrome with "almost complete remission - now only manifested by absent-mindedness by the veteran's account." The report further noted "slight, if any, degree of either vocational or social inadaptability on a neurological or psychiatric basis," with a good prognosis for a continued adjustment at this level, or "even for some further improvement." A May 1985 VA examination report noted complaints of nervousness and hand-shaking, and showed that the Veteran reported drinking two cases of beer per day. The diagnosis noted that history of encephalitis viral type with organic brain syndrome was "in almost complete remission," and "indications of excessive use of alcohol with concomitant complaint of tremors." VA examination reports, dated in 1991, noted complaints of depression, worsening "nerves," and hand tremors "which are often present in the morning but usually go away." He was noted to have anxiety characterized by symptoms that included muscle tension, trembling, and irritability. The Axis I diagnosis was anxiety disorder, not otherwise specified. The Axis V diagnosis was a global assessment of functioning (GAF) score of 70. A neuropsychological examination report noted mild to moderate neuropsychological impairment, with losses in intellectual ability, memory, certain cognitive skills, and problem-solving. An August 2000 private treatment report noted complaints of hand-shaking and arm tremors that "the tremor is improved somewhat after he drinks beer." The impression noted a benign essential tremor, and history of encephalitis. A June 2001 private treatment report noted complaints of memory problems, shaking hands, nervousness, and impairment with higher cognitive skills. The Axis I diagnosis was generalized anxiety, and organic brain syndrome. The Axis V diagnosis was a GAF score of 50. A May 2003 VA progress note shows that the Veteran reported a 40-year history of alcoholism, getting intoxicated for 30 years, drinking daily, public intoxication times two, and DWI (driving while intoxicated) times three. The relevant medical evidence for consideration during the time period on appeal includes a VA brain and spinal cord examination report, dated in December 2005, which shows that the Veteran denied any history of recurrence of seizures since his service. He denied being on any anti-convulsants, or a history of hospitalization. He complained of feeling nervous, and having tremors "mainly in the morning." He complained that he could not hold onto jobs, and that he had had three jobs in the past 11/2 years. He asserted that he could not drive due to his tremors. On examination, he could do serial 3's without any difficulty. Object recall was 3 out of 3 after five minutes. Power was 5/5, and tendon reflexes were 3+. There were no cerebellar signs. The assessment was encephalitis in service in 1969, with no recurrence of seizures since 1969. A VA mental disorders examination report, dated in April 2006, shows that the examiner stated that the Veteran's C-file had been reviewed. The Veteran reported that he had divorced his second wife in 1995. He gave a more-than 30-year history of heavy alcohol consumption, and was noted to self-identify as an alcoholic. He stated that he had lost his most recent job when he was demoted from chef to dishwasher due to slowness, forgetfulness, and irritability, and he walked off of the job. He complained of poor sleep. On examination, he smelled of alcohol. Speech was fluent and goal-directed and spontaneously conversational; rate, flow and intensity were increased. He was alert and fully oriented. He had logical thought processes, intact critical judgment, and minimal insight. Immediate recall and remote memory were fair to good, short-term memory was at least mildly impaired. He was not thought-disordered or delusional. He denied auditory and visual hallucinations. Mood was anxious. The Veteran endorsed suicidal thoughts, without plan or intent. He was fully independent in all activities of daily living. The Axis I diagnoses were generalize anxiety disorder, alcohol dependence, cognitive disorder, not otherwise specified. The Axis V diagnosis was a GAF score of 50. The examiner noted that in addition to a generalized anxiety disorder, the Veteran had a mild neurocognitive disorder, and that there had not been a significant abatement or remission of his symptoms since his last VA examination. His symptoms were noted to be serious and to result in marked industrial impairment and moderate social and familial impairment. A VA mental disorders examination report, dated in November 2008, shows that the examiner stated that the Veteran's C-file had been reviewed. The Veteran denied depression, suicidal or homicidal ideation, or any past suicide attempts. He denied hearing voices or seeing things, manic episodes, panic attacks, or anxiety attacks. He reported having a good appetite and sleeping about six hours per day, and feeling rested in the morning. He stated that he rode his bike about ten miles per day. He denied receiving any relevant medical treatment, or medications. He gave a history of being in jail multiple times for drinking-related problems, most recently in 2005. He denied any current legal problems. On examination, there were no signs of psychosis. Speech was spontaneous, coherent and relevant. He was alert and oriented to person, place, and time. He had fair insight and judgment. The Axis I diagnosis was alcohol dependence in early partial remission. The Axis V diagnosis was a GAF score of 61. The examiner noted that the Veteran denied feeling anxious and that he did not meet the criteria for an anxiety disorder, that there were no current signs of memory impairment, that he did not have signs or symptoms of a cognitive disorder, and that he did not have a mental disorder other than his alcohol dependence. The examiner stated that he had mild symptoms, lived in his parent's house, was taking care of himself and enjoying his life, and that he was generally functioning pretty well. A VA examination report, dated in September 2009, shows that the examiner stated that the Veteran's C-file had been reviewed. The Veteran stated that he had not worked since 2005 due to "excessive nervousness and handshaking," and that he was living with his brother. He complained of symptoms that included feeling nervous, a moderate shaking of his hands, and tremors. He reported not having a driver's license, and being unable to drive. The report notes that he did not have crying spells, and indicates that he had occasional suicidal ideation, with no previous attempt. He denied auditory or visual hallucinations, or paranoid thoughts. The report notes that he is not on any medication. On examination, thought processes and communication were intact. He was slightly irritable. There was no psychosis. He was able to carry out independent living activities. There was no suicidal or homicidal ideation, or paranoid thoughts. There were no delusions. He was alert and oriented times three. He remembered 3/3 after five minutes. There was no significant psychomotor agitation, restlessness or fidgetiness. The Axis I diagnosis was organic brain syndrome secondary to chronic encephalitis residual. The Axis V diagnosis was a GAF score of 50. The examiner stated that the Veteran was not on any medication for his Axis I diagnosis, but that use of medications may be helpful. A VA examination report, dated in October 2009, shows that the examiner stated that the Veteran's C-file had been reviewed. The Veteran stated that he had trouble with his nerves, and that he occasionally felt shaky. He denied cranial nerve symptoms. The report notes he has no blackouts or seizures. He reported "a little trouble with his memory but denied other cognitive impairments." Motor strength was 5/5 with tremor, left greater than right, that came out when concentrating on keeping his pencil still. Sensory was intact. The assessment notes an essential tremor, mild in degree. A VA examination report, dated in February 2010, shows that the examiner stated that the Veteran's C-file had been reviewed. The Veteran complained of symptoms that included feeling nervous, a moderate shaking of his hands, and tremors. The report notes that he did not have crying spells, and indicates that he had occasional suicidal ideation, with no previous attempt. He denied auditory or visual hallucinations, paranoid thoughts, delusions, or phobias. The report notes that he is not on any medication. Thought processes and communication were intact. He was slightly irritable. There was no psychosis, and there were no noticeable tremors. No significant depression, and no memory difficulties, were exhibited or reported. There was no history of relevant treatment "for many years." There was no extreme nervousness observed. Thought processes and communication were intact. He was able to carry out independent living activities. On examination, hygiene was "very good." He was tense, anxious, guarded and reserved, with poor to fair eye contact, and restricted affect. There were no suicidal or homicidal ideations, hallucinations, or paranoid thoughts. There were no delusions. He was alert and oriented times three. He remembered that the three words given to him for his "3/3 test" were the same as those from the September 2009. The Axis I diagnosis was organic brain syndrome secondary to chronic encephalitis residual. The Axis V diagnosis was a GAF score of 50. The examiner stated that the Veteran was doing "fairly well" given that he was not on any medication, and that there were no clinically significant memory problems. The examiner essentially indicated that any past memory problems were not due to "Japanese encephalitis which occurred in Vietnam more than 40 years ago." To the extent that the Veteran had reported a desire for a 100 percent rating, the examiner stated that this "does not match with objective findings" as seen in two evaluations. The examiner concluded that the Veteran was functioning "very well," and that there was no point in any additional reevaluation of his organic brain syndrome, which "is not an issue at all." A VA examination report, dated in June 2014, shows that the examiner stated that the Veteran's C-file had been reviewed. It was noted that there was a history of encephalitis Japanese B type and a history of a chronic brain syndrome which is now in almost complete remission and only manifested by an absentmindedness according to the Veteran. The Veteran indicated that he was told that he had symptoms akin to Parkinson's disease. The examiner noted that the Veteran had a mild tremor of the bilateral upper extremities. The examiner additionally found that the Veteran had mild short-term memory impairment and mild impairment of immediate recall. No history of Parkinson's disease was confirmed. It was also noted that the Veteran had low, average verbal intelligence. Overall, the examiner opined that there was no appreciable change in the Veteran's condition since his last evaluation. In terms of functional impairment of the Veteran's employability, the examiner opined that the Veteran has mild impairment in immediate recall, short-term memory, and concentration. These limitations would preclude him from understanding, remembering, and caring out complex directions. He appeared capable of understanding, remembering, and caring out at least simple directions, and probably detailed directions in familiar work settings. The Veteran's presentation was notable for some mild irritability, but was generally appropriate. He did not describe any significant emotional problems that would preclude maintaining either consistent workplace relationships or consistent work attendance and performance in low stress job settings. It is possible that the excessive use of alcohol might at times limit his ability to work successfully, and he complained that his hand tremor, which he described as highly variable, interferes with performance of any job that requires manual dexterity. However, there was no finding that either of the Veteran's service-connected conditions, either taken individually or together, would prevent the Veteran from obtaining or maintaining gainful employment. Analysis The Veteran is service connected for an essential tremor, evaluated at 30 percent disabling, and chronic brain syndrome residual of encephalitis, evaluated at 10 percent disabling. The Veteran has a combined evaluation of 40 percent. 38 C.F.R. § 4.25. Therefore, the Veteran does not have a minimum rating of 60 percent or a combined rating of at least 70 percent for consideration of a TDIU under 38 C.F.R. § 4.16(a) and entitlement to a schedular TDIU is not warranted. As the Veteran does not meet the applicable percentage standards, the Board will now consider whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. In this regard, the Veteran has stated on a number of occasions that he is unemployable due to his service-connected disabilities. After a review of the competent evidence of record, the Board finds that referral of the TDIU issue for extra-schedular consideration is also not warranted. Here, the Veteran has stated that due to his physical condition, he is unable to sustain gainful employment. To this effect, the Veteran has provided that he has not worked since 1993 and that his memory loss prevents him from conducting most tasks and completing instructions, while his tremors prevent him from engaging in work that requires manual dexterity. A review of the Veteran's treatment records reveal that the VA examinations provided during the course of the appeal, which took the Veteran's service-connected conditions into account solely in and of themselves, found that the Veteran's tremors and cognitive disabilities did not prevent the Veteran from all gainful employment. In particular, the 2014 VA examiner determined that the Veteran's condition merely involved the avoidance of physical labor requiring manual dexterity and jobs that required complex instructions, but that jobs with familiar tasks would not necessarily be precluded. While the Veteran contends that he is unemployable, the other evidence of record including medical evidence shows otherwise. Furthermore, the probative medical evidence of record, as seen in the provided VA examinations, also provide support for a showing that the Veteran's service-connected disabilities do not make him unemployable. The medical evidence is more probative because VA examiners have the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran's complaints. For these reasons, greater evidentiary weight is placed on the examination findings in regard to the type and degree of impairment and actual impact a disability would cause on the Veteran's ability to find substantial gainful employment. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Id. Here, the probative medical evidence of record shows that the Veteran is not rendered unemployable due to service connected disabilities. Furthermore, the potential for the Veteran to perform other types of work not requiring manual dexterity or performing job tasks with which he is already familiar is great due to the fact that he has some training in both culinary practices and management as well as years of experience in a semi-skilled profession. There is no probative evidence that indicates that the Veteran's education or experience would serve as any kind of impediment to working in a sedentary capacity. Accordingly, referral of the TDIU issue for extra-schedular consideration is not required. ORDER Entitlement to a TDIU is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs