Citation Nr: 1805086 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 13-31 173A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for sinusitis. 2. Entitlement to service connection for headaches. 3. Entitlement to service connection for a left ear condition, to include otitis external. 4. Entitlement to service connection for Meniere's disease, to include as secondary to tinnitus. 5. Entitlement to a total disability rating based on individual unemployability (TDIU), prior to January 4, 2016. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Elizabeth Jamison, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1987 to April 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In a December 2010 rating decision, the RO denied reopening claims for service connection for sinusitis and headaches. In a May 2012 rating decision, the RO denied service connection for Meniere's disease and denied reopening the claim for service connection for a chronic left ear condition. In a November 2012 rating decision, the RO continued its denial of service connection for otitis externa of the left ear and Meniere's disease. A September 2014 statement of the case (SOC) continued the denials for sinusitis, headaches, Meniere's disease, and a chronic left ear condition. In September 2015, the Veteran testified during a hearing before the undersigned Veterans Law Judge by videoconference; a transcript of that hearing is of record. In a March 2016 decision, the Board re-opened the claims of entitlement to service connection for sinusitis, headaches, and a chronic left ear condition. The claims at hand were then remanded for further development, including a claim for TDIU under Rice v. Shinseki, 22 Vet. App. 447 (2009). Subsequently, a September 2017 supplemental SOC continued the denial of the claims presently on appeal. This appeal was processed using the Virtual Benefits Management System (VBMS) and Legacy Content Manager (formerly Virtual VA) paperless claims processing systems. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran's sinusitis, headaches, left ear condition, and Meniere's disease are not shown to be causally or etiologically related to any disease, injury, or incident during service. 2. The Veteran's Meniere's disease is not otherwise caused or aggravated by his service-connected tinnitus. 3. The Veteran's service-connected disorders did not preclude sedentary or light physical employment prior to January 4, 2016. CONCLUSIONS OF LAW 1. The criteria establishing entitlement to service connection for sinusitis are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. § 3.303 (2017). 2. The criteria establishing entitlement to service connection for headaches are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 3. The criteria establishing entitlement to service connection for a left ear condition are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. § 3.303 (2017). 4. The criteria establishing entitlement to service connection for Meniere's disease, to include on a secondary basis, are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). 5. The criteria for a total disability rating based on individual unemployability due to service-connected disabilities are not met prior to January 4, 2016. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist As provided for by 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. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). VCAA compliant notice was provided to the Veteran via an April 2012 letter for the claims of entitlement to service connection for a left ear condition and Meniere's disease. Per the directives of the March 2016 Board remand, additional VCAA compliant notice was provided for all claims via a December 2016 letter, prior to the most recent adjudication in the September 2017 supplemental SOC. The purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, to include the opportunity to present pertinent evidence. Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir. 2007). Neither the Veteran nor his representative has alleged or demonstrated any prejudice with regard to the content or timing of VA's notice. See Shinseki v. Sanders, 129 U.S. 1696 (2009). The Federal Court of Appeals has held that "absent extraordinary circumstances...it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...." See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The record reflects that VA has made reasonable efforts to obtain or assist in obtaining the relevant records for the claim adjudicated herein. The pertinent evidence associated with the claim consists of service treatment records (STRs), post-service VA and private treatment records, and VA examination reports. VA has adequately discharged its duty to locate records and afforded the Veteran notice and opportunity to submit any identified records that may be in his possession. The Veteran has not identified any outstanding records that have not been requested or obtained. The Board therefore finds that VA's duty to assist in obtaining the relevant records is met. The Board also finds there has been substantial compliance with the March 2016 remand directives. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). In summary, the duties imposed by the VCAA have been considered and satisfied. There is no additional notice that should be provided, nor is there any indication of further existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided. See Mayfield v. Nicholson, 20 Vet. App. 539, 543 (2006); see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Service Connection The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss every item of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). The Board will summarize the relevant evidence and focus specifically on what the evidence shows or fails to show as to the claims. When there is an approximate balance of evidence regarding an issue material to the determination of a matter, the benefit of the doubt in resolving the issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A. Legal Criteria Service connection may be granted for a disability resulting from injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of, or aggravated by, a service-connected disability. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either proximately caused by or proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). In order to prevail on the issue of entitlement to service connection, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). Presumptive service connection may be granted as a chronic disease for certain diseases, to include organic diseases of the nervous system, if it manifested to a compensable degree within one year following active duty, or if there is continuity of symptomatology since service. 38 U.S.C. §§ 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a). Whether lay evidence is competent and sufficient in a particular case is an issue of fact. Lay evidence can be competent and sufficient to establish a diagnosis when (1) a 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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. B. Analysis The Veteran contends that service connection is warranted for sinusitis, headaches, a left ear condition, and Meniere's disease. After thorough review of the evidence, the Board concludes that entitlement to service connection for these conditions cannot be granted. As an initial matter, STRs reflect findings of cerumen in the ear, as early as December 1987. They also contain occasional headaches complaints. In December 1987, the Veteran reported nausea and dizziness since being on the ship and occasional occipital and frontal headaches. The examiner diagnosed the Veteran with motion sickness and mild gastritis. Later that month, he reported low back pain and headaches. A January 1988 record documented a complaint of intermittent headaches, resolved by moving around. The Veteran complained of sinus problems in October 1988. In January 1990, he received a diagnosis of allergic rhinitis. In March 1990, he reported fainting or dizziness after using the weight room, persistent cough, and sinus problems. An April 1990 note documented a dry cough for several months, and suspect allergic related rhinitis/irritable cough. In February 1991, he reported problems with sinus and painful joints, but denied asthma, hay fever, anemia, ulcers, and arthritis. While the Veteran was not diagnosed with sinusitis, migraines, a headache-related condition, or Meniere's disease in service, the record reflects evidence of some relevant in-service treatment and complaints. Post-service treatment records and the May 2017 VA examination report confirm a current diagnosis of sinusitis, migraine headaches, otitis externa with cerumen impaction, and Meniere's disease. Thus, the current diagnosis element is met and the inquiry turns to whether a nexus exists between the currently diagnosed conditions and the in-service complaints and treatment described above. In this regard, the Board finds that the Veteran is not competent as to the etiology of his sinusitis, migraines, left ear condition, or Meniere's disease. He is competent to attest to factual matters of which he has first-hand knowledge, such as experiencing congestion, dizziness, watery eyes, headaches, and ear irritation during and after service. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, he is not competent to opine on the complex medical question of etiology of a condition such as sinusitis, migraines, a left ear condition, or Meniere's disease. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau, 492 F.3d at 1377. The question of causation for these conditions involves medical subjects concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. In a case such as this, where each condition has multiple potential etiologies, lay testimony is insufficient to establish causation. For that reason, the Board assigns little probative value to the Veteran's etiological assertions. Instead, the Board finds the objective medical evidence, including the VA examination reports of record, to be highly probative as to the issue of a nexus. The Board notes that the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, his or her knowledge and skill in analyzing the data, and the medical conclusion. In September 2004, the Veteran underwent a VA examination. He reported difficulty with chronic rhinosinusitis, with left ear infection and tinnitus, and recurrent episodes of left otitis externa and otitis media. The examiner noted that the Veteran has been seen by ENT in June 2004, for inferior turbinate hypertrophy and left otitis externa in the past that has now resolved. The Veteran also reported dizziness and headaches, as well as, tinnitus and some posterior nasal drainage and cough. The VA examiner diagnosed him with headaches, possible migraine or cluster headaches, chronic sinusitis, with recurrent left ear otitis externa and tinnitus. An opinion regarding the etiologies of the conditions was not given. The Veteran underwent further VA examination in conjunction with his claims in May 2017. In regard to the sinusitis claim, the examiner noted treatment for upper respiratory infections (URIs) and allergic rhinitis. Based on his review of the evidence, he found no evidence of sinusitis in service and stated that a history of drug abuse contributed to the Veteran's URI symptoms. Ultimately, he opined that the Veteran's current sinusitis was less likely than not incurred in or caused by the conditions reflected via the in-service complaints or treatment. In regard to the headaches claim, the examiner recorded the Veteran's report of headaches beginning in 1988, currently treated with topiramate and tramadol. He noted that the Veteran was diagnosed with probable tension headaches in service; post-service, he struck his head and was later diagnosed with migraine headaches. He concluded that the medical evidence did not support the Veteran's contention that the headaches were related to service. After review of medical records and consideration of the lay evidence, he opined that the claimed condition was less likely than not incurred in or caused by the in-service complaints. In regard to the left ear condition claim, the examiner found no current evidence of active otitis externa, but noted the Veteran's report of the condition's onset in 1998, as well as complaints of increased cerumen at the same time. He also noted inclusion of the condition under active problems in his post-service treatment records. However, based upon his review, he concluded that the medical evidence did not support the Veteran's contention that otitis externa was related to his service. After review of medical records and consideration of the lay evidence, he opined that the claimed condition was less likely than not incurred in or caused by the in-service complaints or treatment. In regard to Meniere's disease, the examiner found no active disease, but confirmed the prior diagnosis. After review of the record, he opined that the Meniere's was less likely than not caused by or incurred in service. He stated that the cause of Meniere's disease is not understood and that because no single cause has been identified, it is likely that Meniere's disease results from a combination of factors. He was unable to determine a specific etiology and stated that the Veteran's Meniere's disease was likely idiopathic or multifactorial. He was also unable to find any nexus between the Veteran's tinnitus and the Meniere's disease. Ultimately, he opined that it was less likely than not incurred in or caused by the Veteran's service and less likely than not proximately due to or the result of the service-connected tinnitus. Finally, he stated that the diagnosed Meniere's disease was not aggravated beyond its natural progression due to the service-connected tinnitus. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for the medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444, 448-9 (2000). In this case, the Board assigns significant probative value to the opinions contained in the May 2017 examination report. The examiner demonstrated that he thoroughly reviewed the file, considered the Veteran's contentions, and reached each conclusion supported by a detailed basis. Notably, there is no medical evidence of record which provides a positive nexus opinion connecting the conditions on appeal to the Veteran's service or supporting causation or aggravation of the diagnosed Meniere's disease due to tinnitus. Absent countervailing medical evidence, the Board itself is prohibited from exercising its own independent judgment in the Veteran's favor. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board may not exercise its own independent judgment to resolve medical questions). Accordingly, the most probative evidence of record does not reflect a nexus between the Veteran's service and his sinusitis, headaches, left ear condition, or Meniere's disease, or grounds for secondary service connection for Meniere's disease due to service-connected tinnitus. The Board also notes that migraines and Meniere's disease, organic diseases of the nervous system, cannot be service connected on a presumptive basis as a chronic disease. 38 C.F.R. §§ 3.307, 3.309. The presumption for chronic diseases deals with three situations: 1) a chronic diagnosis in service linked to the same chronic diagnosis after service; 2) a chronic diagnosis within a year of separation; or 3) continuity of symptomatology. As described above, there was no diagnosis of migraines or Meniere's disease in service and the Veteran's separation examination and report of medical history are silent to any relevant issues. Additionally, the record does not contain a diagnosis of these conditions within a year of separation or evidence weighing in favor of continuity of symptomatology. To the extent the Veteran has implied entitlement due to a chronic disease, such a contention would be inconsistent with the competent and probative evidence of record. Accordingly, service connection is not warranted on a presumptive basis. Based upon the evidence of record, the Board concludes that entitlement to service connection for these conditions cannot be granted. The competent, probative evidence does not reflect a nexus between the Veteran's service and his currently diagnosed sinusitis, migraines, left ear condition, or Meniere's disease; likewise, it does not reflect causation or aggravation of Meniere's disease due to tinnitus. In reaching these conclusions, 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. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. III. Total disability rating due to individual unemployability A temporary 100 percent evaluation for PTSD based on hospitalization was assigned from January 4, 2016 through April 30, 2016. Subsequently, a permanent 100 percent evaluation was assigned for PTSD. Thus, the issue for consideration is whether a TDIU is warranted for the period prior to January 4, 2016. Prior to January 4, 2016, the Veteran was assigned a combined rating of 60 percent from December 28, 2006; 70 percent from February 24, 2012; 60 percent from May 30, 2012; and 70 percent from August 20, 2013. No single service-connected disability was rated higher than 30 percent during this period. VA will grant a total, 100 percent rating for compensation purposes based on individual unemployability when the evidence shows that a veteran is precluded, by reason of service-connected disability, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16. Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disability or disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. 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 is whether his service-connected disabilities alone are of sufficient severity to produce unemployability. If the Veteran has only one service connected disability, it must be rated at least 60 percent disabling to qualify for a schedular TDIU rating. If there are two or more service-connected 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. See 38 C.F.R. § 4.16(a). For the 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. Id. Where these percentage requirements are not met, as in the present case during the period prior to January 4, 2016, entitlement to benefits on an extraschedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. See 38 C.F.R. § 4.16(b). The Board cannot assign an extraschedular rating in the first instance. See Bowling v. Principi, 15 Vet. App. 1. Here, the RO declined to assign an extraschedular rating in the September 2017 supplemental SOC. The Board agrees that referral of the TDIU claim to the Director of Compensation Service for extraschedular consideration is not warranted in this case. See 38 C.F.R. § 4.16(b). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a Veteran's favor. 38 C.F.R. § 4.3. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Van Hoose, 4 Vet. App. at 361. 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. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). Turning to the evidence of record, the Veteran underwent VA examination in November 2010. The examiner noted that he did not report any specific activity he cannot perform because of hemorrhoids. No anemia was shown upon diagnostic and clinical testing. He reported lower back pain after standing for 30 minutes. His gait, reflexes, and motor strength were normal. VA treatment records from May 2011 reflect treatment for tinnitus, although the care provider noted that the Veteran was not a candidate for hearing aids. An August 2013 VA examination report noted no functional impact due to the Veteran's hemorrhoids and sphincter control conditions. During the hearing before the Board in September 2015, the Veteran testified as to his unemployment concerns. He stated that he completed a VA vocational assistance program but had back and knee pain at the end. He also described working at a barbeque restaurant but was too fatigued to complete the requirements of the job without assistance and found the situation to be hostile. The Veteran submitted an April 2016 application for individual unemployability which stated that he is unemployable due to his left knee, hearing loss, tinnitus, hemorrhoids, and PTSD. He reported 2 years of college and previous full-time work as a dishwasher ending in 2015. VA records reflect that the Veteran was assigned to a Compensated Work Therapy program in April 2016, where he utilized a weedeater to care for the grounds. Upon VA examination in May 2017, the Veteran reported that he had last worked in January 2017 as a contractor/painter. After consideration of the lay and medical evidence of record, the Board finds that the Veteran was not precluded from securing or maintaining substantially gainful employment during the period prior to January 4, 2016. There is affirmative evidence that he was employed in 2015 and worked as recently as 2017. In his testimony before the Board, the Veteran indicated that he left the position in 2015 although his employer intended to continue his employment. Furthermore, no functional impact has been indicated by the medical examination reports of record. While cognizant of the Veteran's impairment from service-connected disabilities, these limitations were recognized by his combined 60 to 70 percent disability rating during this period. However, it is not persuasively shown that the Veteran's service-connected disabilities precluded a substantially gainfully occupation prior to January 4, 2016. In reaching this determination, consideration was not given to the Veteran's advancing age or nonservice-connected conditions. The Board acknowledges the Veteran's assertions that he is unemployable due to his service-connected disabilities. He is competent to describe the symptoms he experiences. However, the record does not indicate, and the Veteran has not asserted, that he has any specific medical expertise or experience which would enable him to offer an expert medical opinion regarding the type and degree of the functional impairment associated with his disabilities. As such, while the Board accepts the Veteran's statements with regard to the matters he is competent to address, the Board relies upon the unbiased, competent medical evidence with regard to the evaluation of functional impairment, symptom severity, and the impact of the service-connected disabilities on his functioning. Accordingly, the Board finds that the preponderance of the evidence is against a finding that the Veteran is unemployable due to his service-connected disabilities. The fact that he was unemployed or had difficulty obtaining or following employment during the relevant period is not enough to warrant entitlement to a TDIU. The ultimate question is whether he was capable of performing the physical and mental acts required by employment. In the present case, the evidence does not show that he was incapable of performing the physical and mental acts required for sedentary or light physical employment due solely to his service-connected disabilities during the period prior to January 4, 2016. While the Board remains sympathetic to the Veteran, and regrets his current condition, unfortunately the claim for entitlement to a TDIU rating must be denied. After considering the limitations related to the service-connected disabilities as shown by the lay and medical evidence, the Veteran was capable of performing sedentary or light physical work considering the symptomatology and functional impairment of service-connected disabilities alone, without regard to age or nonservice-connected disabilities. Referral of the claim to the Director of Compensation Service for extraschedular consideration is not warranted for the period on appeal. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 53. ORDER Entitlement to service connection for sinusitis is denied. Entitlement to service connection for headaches is denied. Entitlement to service connection for a left ear condition, to include otitis externa, is denied. Entitlement to service connection for Meniere's disease, to include as secondary to tinnitus, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU), prior to January 4, 2016, is denied. ____________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs