Citation Nr: 1512256 Decision Date: 03/23/15 Archive Date: 04/01/15 DOCKET NO. 13-06 756 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) prior to September 5, 2013. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Kristi L. Gunn, Counsel INTRODUCTION The Veteran served on active duty from November 1967 to August 1986. This appeal to the Board of Veterans' Appeals (Board/BVA) originated from a July 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2013, as support for this claim, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the proceeding is of record. In a February 2014 rating decision since issued, the RO granted service connection for adjustment disorder with mixed anxiety and depressed mood and assigned a 30 percent rating for this disability retroactively effective from September 5, 2013. This in turn has resulted in a combined disability rating of 100 percent since that date. The United States Court of Appeals for Veterans Claims (Court/CAVC) has held that a 100 percent schedular rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. See Holland v. Brown, 6 Vet. App. 443, 446 (1994) (citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990)). Thus, if VA has found a Veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the Rating Schedule, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding request for a TDIU moot where 100 percent schedular rating was awarded for the same period). The Court subsequently has held, however, that the award of a 100 percent disability rating does not render moot a claim of entitlement to a TDIU. See Bradley v. Peake, 22 Vet. App. 280 (2008). In Bradley, the Court determined that a separate TDIU predicated on one disability (although perhaps not ratable at the schedular 100-percent level) when considered together with another disability separately rated at 60 percent or more could warrant special monthly compensation (SMC) under 38 U.S.C.A. § 1114(s). Thus, the Court reasoned, it might benefit the Veteran to retain or obtain the TDIU even where a 100 percent schedular rating also has been granted. Bradley, at 293-94. Because of this holding, VA's General Counsel withdrew VAOPGCPREC 6-99, which was contrary to the holding of Bradley. See 75 Fed. Reg. 11229-04 (March 10, 2010). Indeed, as noted in Bradley, VA must consider a TDIU claim despite the existence of a schedular total rating and award SMC under 38 U.S.C.A. § 1114(s) if VA finds the separate disability supports a TDIU independent of the other 100 percent disability rating. See id. In Bradley, the Court found that a TDIU was warranted in addition to a schedular 100 percent evaluation where the TDIU had been granted for a disability other than the disability for which a 100 percent rating was in effect. However, under the facts presented in that case, there was no "duplicate counting of disabilities." Bradley, 22 Vet. App. at 293. This current case is distinguishable from the Bradley case because, if the Veteran were to be awarded a TDIU based on his current service-connected disabilities as of September 5, 2013, it would impermissibly result in the same disabilities being "counted twice" in the assignment of a total rating. See generally 38 C.F.R. § 4.14. As such, under the facts presented in this case, if a TDIU were to be granted, the Veteran would not be eligible for SMC under the first prong of 38 U.S.C.A. § 1114(s) and 38 C.F.R. § 3.350(i) because the TDIU would be based on the same disabilities. As there remains no case or controversy concerning whether he is entitled to the benefit sought, the appeal with respect to the claim for a TDIU is moot as of September 5, 2013. Sabonis v. Brown, 6 Vet. App. 426 (1994). The Board therefore is only considering whether he was entitled to a TDIU prior to that date when his 100 percent schedular rating took effect. FINDING OF FACT Prior to September 5, 2013, the Veteran was not incapable of obtaining and maintaining substantially gainful employment because of his service-connected disabilities. CONCLUSION OF LAW For this earlier period at issue, prior to September 5, 2013, the criteria are not met for a TDIU. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.340, 4.16, 4.18, (2014). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, including apprising him of the information and evidence VA will obtain versus the information and evidence he is expected to provide. 38 C.F.R. § 3.159 (2014). The Veteran was provided this required notice and information for establishing his entitlement to a TDIU, in a January 2012 letter, prior to the initial adjudication of his claim in the July 2012 rating decision at issue, so in the preferred sequence. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Therefore, VA has satisfied its duty to notify him concerning this claim. VA also has a duty to assist the Veteran with this claim by obtaining all potentially relevant records and providing an examination or obtaining a medical opinion when needed to assist in making a decision on the claim. Here, to satisfy this additional obligation, the Veteran's service treatment records (STRs) and post-service private and VA records have been obtained and associated with the claims file for consideration. He was also afforded VA examinations for his TDIU claim, which contain opinions regarding the functional impact of his service-connected disabilities. Therefore, VA's duty to assist with respect to obtaining all relevant records, examinations, and opinions has been met. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Finally, as already alluded to, the Veteran also testified at a videoconference hearing before the Board. The hearing was in compliance with proper procedure as the presiding VLJ, the undersigned, explained the issue, focused on the elements necessary to substantiate the claim, and sought to identify any further development that was required to help substantiate it. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conducting of the hearing. Bryant v. Shinseki, 23 Vet. App. 488 (2010). The Veteran and his representative have not made the RO or Board aware of any additional evidence still needing to be obtained in order to fairly decide this claim and that is obtainable. They have been given ample opportunity to present evidence and argument in support of this claim, including as mentioned during the hearing and even since. Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the appeal of this claim has been obtained and it is ripe for appellate review. VA has complied with all procedural due process requirements. See 38 C.F.R. § 3.103 (2014). II. The Merits of the TDIU Claim The Veteran alleges that his service-connected disabilities render him unemployable and, therefore, entitled to a TDIU prior to September 5, 2013, which, to reiterate, is the effective date of his 100 percent combined schedular rating. 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 or disabilities that have not been service connected. See 38 C.F.R. §§ 3.341(a), 4.16(a). Total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 4.15; see also 38 C.F.R. § 3.340(a) (providing that to establish entitlement to a TDIU, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation). Substantially gainful employment is defined as work that is more than marginal and that 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." In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the Court also discussed the meaning of "substantially gainful employment" and 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. 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. 38 C.F.R. § 4.16(a). Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold. Id. Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop. Id. 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 38 C.F.R. §§ 3.341(a), 4.16(a); Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In a pertinent 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 use a subjective (not just objective) 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." 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 Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). 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. See also Beaty v. Brown, 6 Vet. App. 532, 537 (1994); Ferraro v. Derwinski, 1 Vet. App. 362, 331-32 (1991). But all of that said, 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 (2014). In order to satisfy the criteria for schedular consideration of entitlement to a TDIU, 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, disabilities affecting a single body system such as orthopedic disabilities, multiple injuries incurred in action, or multiple disabilities incurred as a prisoner of war will be considered as one disability for purposes of determining whether the Veteran satisfies these threshold minimum rating requirements. Id. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2014). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Prior to September 5, 2013, the Veteran was service connected for the following disabilities: arthritis of the left shoulder, evaluated as 10-percent disabling; arthritis of the right elbow, evaluated as 10- percent disabling; arthritis of the left elbow, evaluated as 10-percent disabling; low back syndrome, evaluated as 10-percent disabling; hypertension, evaluated as 0-percent disabling; coronary artery disease status post stenting, evaluated as 60-percent disabling; bilateral hearing loss, evaluated as 40-percent disabling; status post left knee arthroplasty, evaluated as 30-percent disabling; medial compartment knee joint space loss and mild genu varus angulation of the left knee with extension limited to 15 degrees, evaluated as 20-percent disabling; medial compartment knee joint space loss and mild genu varus angulation of the left knee with flexion limited to 85 degrees and pain on movement, evaluated as 10-percent disabling; severe two-compartment osteoarthritis medial compartment and patellofemoral joint space of the right knee with flexion limited to 100 degrees, evaluated as 10-percent disabling; severe two-compartment osteoarthritis, medial compartment and patellofemoral joint space of the right knee with extension limited to 10 degrees, evaluated as 10-percent disabling; tinnitus, evaluated as 10-percent disabling; and arthritis of the right shoulder, evaluated as 10-percent disabling. During the applicable time period, his combined disability rating is 90 percent. The rating requirements for consideration of a TDIU under § 4.16(a) resultantly are met, that is, without having to resort alternatively to the special extra-schedular provisions of § 4.16(b). Therefore, the remaining inquiry is whether these several disabilities rendered the Veteran unable to secure or follow a substantially gainful occupation prior to September 5, 2013. Factors such as employment history, as well as educational and vocational attainments, are for consideration. The Board emphasizes that a TDIU is limited to consideration of service-connected disabilities. During his September 2013 Board hearing, the Veteran testified that he had worked as a custodian for the United States Postal Service (USPS) until he was all but "forced to retire" because of his service-connected disabilities. Specifically, he explained that his service-connected knee disabilities caused a great deal of pain and prevented him from continuing to work in any substantially gainful capacity. He further added that all of the prescribed medication he takes for his service-connected disabilities makes him drowsy, which in turn causes difficulties in using machinery at his job (at least the type of jobs that he has the required training for), thereby creating an unsafe environment for him and his coworkers. See the September 2013 Board hearing transcript. According to his December 2011 formal application for a TDIU, he reported his last month and year working as a custodian for the USPS was in August 2009. He reported completing two years of college and clarified during his September 2013 Board hearing that his college work was in postal management. So he does not believe that any further employment, in any meaningful capacity, is a viable or truly realistic possibility given the type of job he has had in years past (custodian), meaning he is ill-equipped to work even an office (sedentary-type) job given his skill set. In January 2012, the Veteran underwent a series of VA examinations for his service-connected disabilities in order to determine their functional impact, which in turn assist the Board in determining whether they preclude him from obtaining and maintaining employment that could be considered substantially gainful versus just marginal in comparison. In a claim for a TDIU the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator. See 38 C.F.R. § 4.16(a); see also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (noting that "applicable regulations place responsibility for the ultimate TDIU determination on the [adjudicator], not a medical examiner"); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013) (observing that "medical examiners are responsible for providing a 'full description of the effects of disability upon the person's ordinary activity,' 38 C.F.R. § 4.10 (2013), but it is the rating official who is responsible for 'interpret[ing] reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present,' 38 C.F.R. § 4.2 (2013)."). It is currently the Veteran Benefits Administation's (VBA's) policy that: If the facts of the case require VA to examine the Veteran [as part of his or her TDIU claim], do not ask the examiner to opine as to whether or not the Veteran is unemployable due to his or her service-connected disabilities. The responsibility for this decision rests solely with the rating activity. VA should request that the examiner comment instead on the functional impairment caused solely by the service-connected disabilities. VBA Fast Letter 13-13 (Jun. 17, 2013) (citations omitted) (emphasis added). While Fast Letters are not binding on the Board, the information contained therein is consistent with case law, as discussed above. Floore, 26 Vet. App. at 381. With regards to the service-connected coronary artery disease, the examiner confirmed this diagnosis. However, after physical examination and diagnostic testing, the examiner concluded the Veteran's coronary artery disease was asymptomatic and does not impact his ability to work. The examiner explained that the Veteran has not needed to use his nitroglycerine and can exercise to a level of greater than 7 to 10 metabolic equivalents (METs), which is indicative of activities such as climbing stairs quickly, moderate bicycling, sawing wood, and jogging. The examiner also noted the Veteran's acknowledgment of being told to "[d]o whatever you want" by his cardiologist. As for the January 2012 examination for the service-connected low back disability, the Veteran reported experiencing daily pain in his low back with radiating pain into his right buttocks and proximal posterior thigh. He admitted to having flare-ups approximately once a week with pain, and rated the pain at a 5 out of 10 in terms of severity. He informed the examiner that he had been unable to lift his weights and could not do a lot of pushing, bending, or pulling. After physical and diagnostic testing, the examiner diagnosed degenerative disc and joint disease of the lumbar spine. The examiner concluded this service-connected lumbar spine disability impacts the Veteran's ability to work, because lifting and carrying heavy loads should be limited or avoided, as well as repeated bending, twisting, and prolonged forward flexed positions. Ultimately, however, the examiner noted no sitting limitations if the Veteran is allowed to change positions as necessary. Regarding his service-connected bilateral shoulder disability, the Veteran reported experiencing increasing right shoulder pain, for years, especially while trying to sleep. He rated the pain at 6 out of 10 in terms of severity, but admitted to being able to perform "just about anything" with his shoulders during the day. He denied having any significant limitations during the day owing to this service-connected disability. After physical examination and diagnostic testing, the examiner diagnosed osteoarthritis of the shoulders, but he concluded this disability does not impact the Veteran's ability to work because the limitations are not of such degree that would preclude all forms of employment. The examiner explained that the Veteran is not limited during the day, i.e., working hours by his service-connected bilateral shoulder disability. In fact, the examiner indicated the Veteran is able to press and curl 60 pounds for 20 repetitions in his current exercise regimen. The January 2012 examiner also reached the same conclusion as concerning the service-connected bilateral elbow disability. The Veteran reported experiencing pain in his left elbow for the past two years with occasional popping with extension. He rated the pain at 3 out of 10 in terms of intensity and occurring approximately three times a week with no flare-ups. He denied having any pain or functional impairment with regards to the service-connected right elbow disability. After physical examination and diagnostic testing, the examiner diagnosed osteoarthritis of the elbows. But, as before, the examiner concluded this service-connected disability does not impact the Veteran's ability to work because he did not describe any functional impairment during the examination, and the impairment shown is not of a degree that would preclude all forms of employment. The examiner again noted the Veteran's ability to press and curl 60 pounds for 20 repetitions in his current exercise regimen. With regards to the service-connected knee disabilities, the Veteran reported having limitation of flexion and difficulty walking down stairs. He denied flare-ups and admitted to only having intermittent pain with prolonged activity. After physical and diagnostic testing, the examiner diagnosed status post left total knee arthroplasty for osteoarthritis and right knee osteoarthritis. The examiner concluded the service-connected right and left knee disabilities impact the Veteran's ability to work, but the limitations are not of a degree that would preclude all forms of employment. The limitations involve the Veteran being unable to squat or kneel, only standing for thirty minutes, and walking only on level ground for one mile. The examiner further added that the Veteran can walk up stairs with minimal difficulty, but is unable to walk down more than one flight of stairs without resting, and, as such, repeated stair and ladder climbing should be avoided. Otherwise, the examiner indicated the Veteran is ambulatory without assistance, has unlimited sitting tolerance, and excellent upper body strength. With regards to the service-connected hypertension, after physical examination and diagnostic testing the examiner confirmed this diagnosis but concluded this disease does not impact the Veteran's ability to work. The examiner explained that there are no limitations in terms of employment because this service-connected disease is asymptomatic, in good control, and causes no physical limitations. With regards to the service-connected hearing loss and tinnitus, the examiner concluded that both disabilities impact ordinary conditions of daily life, including the ability to work. Still other evidence of record considers the aggregate or collective effect of the Veteran's service-connected disabilities on his employability. But see Geib v. Shinseki, No.2012-7164, 2013 WL XXXXXXX, at *Y (Fed. Cir. Oct. 29, 2013) (In a TDIU determination, "VA's duty to assist does not require obtaining a single medical opinion regarding the combined impact of all service-connected disabilities."); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). In this conclusory opinion, the January 2012 examiner concluded the Veteran's service-connected disabilities, even when considered collectively, do not render him unable to secure and maintain substantially gainful employment. The examiner explained that, in general, the Veteran has intact sight, communicates effectively and appropriately, is ambulatory without assistance, reports unlimited sitting tolerance, displays a standing tolerance for 30 minutes, can walk one mile on a level ground, has a repeated lifting capability of 60 pounds, shows unlimited reaching capabilities, and can drive for approximately three to four hours. The examiner also pointed out the Veteran admitted to having no limitations on activities of daily living (ADLs). Based on these January 2012 VA opinions, the Board finds that the Veteran was not unemployable prior to September 5, 2013, on account of his service-connected disabilities. While there admittedly is indication his service-connected disabilities "impacted" his employability, this, alone, is not tantamount to outright preclusion of what could be considered substantially gainful employment (versus just marginal) and, thus, insufficient reason to grant a TDIU because the various ratings for his several service-connected disabilities take this into account. 38 C.F.R. §§ 4.1, 4.15. The degree of impairment in occupational functioning that is generally deemed indicative of unemployability consists of a showing that the Veteran is "[in]capable of performing the physical and mental acts required by employment," and is not based solely on whether he is unemployed or has difficulty obtaining or maintaining employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). Rather, the record must demonstrate some factor that takes his situation outside the norm since the VA Rating Schedule already is designed to take into consideration impairment that renders it difficult to obtain and keep employment. Id. A claim for a TDIU "presupposes that the rating for the [service-connected] condition is less than 100 [percent], and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." See Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). But, here, as mentioned, the Veteran has a 100 percent schedular rating. Importantly, the only medical opinions addressing this matter are against the claim. The VA examiner found that, while the Veteran was precluded from physical labor, he could still perform sedentary work. In this regard, the Veteran's employment background in postal management is considered sedentary work, so this is not a situation where the examiner's assessment of employability (in a sedentary, but not physically-demanding, job) is an unrealistic expectation given the Veteran's level of education, prior work experience and training since he has had precisely this type of job in years past. And although the examiner failed to provide rationale for his conclusion that the service-connected hearing loss and tinnitus impact ordinary conditions of daily life, including the Veteran's ability to work, the January 2012 examiner ultimately concluded that the Veteran communicates effectively and appropriately - which suggest his service-connected hearing loss and tinnitus do not render him outright unemployable. And, to reiterate, a mere impact on employability is not tantamount to a finding of actual unemployability. During his September 2013 videoconference hearing before the Board, the Veteran testified that his service-connected knee disabilities (in particular) and the prescribed medication for treatment of his service-connected disabilities all but "forced" him to retire early from the USPS. There was no mention of his service-connected bilateral hearing loss and tinnitus as rendering him unemployable or having had any factor in that forced retirement. As such, the evidence on the whole shows his service-connected disabilities did not render him unemployable prior to September 5, 2013, although they certainly impacted his employability. The January 2012 VA examination reports ultimately concluding the Veteran was still employable (even if admittedly there was a definite impact on certain types of employment, physical versus just sedentary, owing to his service-connected disabilities) are well-reasoned and based on an objective clinical evaluation of him and an independent review of his claims file for the pertinent medical and other history, including his employment history and VA treatment records. So the reports, especially in combination, have the proper factual foundation and predicate and, therefore, are entitled to a lot of probative weight. Elkins v. Brown, 5 Vet. App. 474, 478 (1993); Swann v. Brown, 5 Vet. App. 177, 180 (1993). For these reasons and bases, the preponderance of the evidence is against this claim of entitlement to a TDIU prior to September 5, 2013 - in turn meaning there is no reasonable doubt to resolve in the Veteran's favor and that this claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER The claim of entitlement to a TDIU prior to September 5, 2013, is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs