Citation Nr: 21011626 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 15-15 514 DATE: March 2, 2021 ISSUES Entitlement to service connection for multiple sclerosis (MS). Entitlement to a total disability rating based on individual unemployability due to service- connected disabilities (TDIU). ORDER Entitlement to service connection for multiple sclerosis is denied. Entitlement to a total disability rating based on individual unemployability due to service- connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. Multiple sclerosis was not shown in the Veteran’s first period of service and has not been associated with such service. 2. The competent evidence of record establishes that the Veteran’s multiple sclerosis clearly and unmistakably pre-existed his second period of active service. 3. The medical evidence clearly and unmistakably shows that the Veteran's pre-existing multiple sclerosis was not permanently aggravated beyond the natural progression of the disease during his second period of active service. 4. From April 30, 2006 until March [REDACTED], 2011, the evidence of record does not show that the Veteran's service-connected disabilities alone precluded him from obtaining or maintaining substantially gainful employment consistent with his level of education and work history on a schedular or extraschedular basis. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for multiple sclerosis have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.159, 3.303. 2. From April 30, 2006 until March [REDACTED], 2011 the criteria for entitlement to a total disability rating based on individual unemployability due to service- connected disabilities (TDIU) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1976 to March 1977, and from June 2004 to June 2006. The Veteran also had additional service as a reservist in the Army National Guard. The Veteran died on March [REDACTED], 2011. The appellant is the Veteran’s surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2007 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was before the Board in December 2012. At that time the Board inferred the issue of entitlement to a TDIU based off the record, noting it was part and parcel to the Veteran's increased ratings claims. Rice v. Shinseki, 22 Vet. App. 447 (2009). At that time the Board also remanded the claim for additional development actions. The matter was again remanded in July 2018 for further development. Upon review of the Veteran’s claim file, the Board finds that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Therefore, the Board will proceed to the merits of the issues on appeal. Service Connection Generally, to establish service connection a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may be established for a current disability on the basis of a presumption that certain chronic diseases, to include multiple sclerosis, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For organic multiple sclerosis, the disease must have manifested to a degree of 10 percent or more within seven years of service. 38 C.F.R. § 3.307 (a)(3). If there is no manifestation within seven years of service, service connection for multiple sclerosis can still be established through continuity of symptomatology. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (2013). Continuity of symptomatology requires the chronic disease to have manifested in service. 38 C.F.R. § 3.303 (b). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition 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, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See, Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In this case, the Board has reviewed all of the evidence of record, 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, in detail, every piece 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). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, with regard to the Veteran's claims. Presumption of Soundness A veteran is considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. A history of conditions existing prior to service, recorded at the time of the entrance examination does not constitute a notation of such conditions for the purpose of establishing whether the Veteran was of sound condition at enlistment. See 38 C.F.R. § 3.304(b)(1). However, the recording of such a history in the entrance examination will be considered together with all other material evidence in determinations as to inception of the disability at issue. See Id. In order to rebut the presumption of sound condition, the VA must show by clear and unmistakable (obvious or manifest) evidence both (1) that the disease or injury existed prior to service and (2) that the disease or injury was not aggravated by service. See § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); VAOPGCPREC 3-03 (July 16, 2003). Thus, when the presumption of sound condition applies, the claimant is not required to establish aggravation by showing that the preexisting disease or injury increased in severity during service. See VAOPGCPREC 3-03. Rather, the burden remains with VA to show by clear and unmistakable evidence that the preexisting disease or injury was not aggravated by service. See Id.; Wagner, 370 F.3d at 1096; see also Horn v. Shinseki, 25 Vet. App. 231, 235 (2012) (observing that "even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness"). VA may find a lack of aggravation under 38 U.S.C. § 1111 if clear and unmistakable evidence shows that there was no increase in disability during service, or that any increase in disability was due to the natural progress of the preexisting condition. Wagner, 370 F.3d at 1096 (citing 38 U.S.C. § 1153 and 38 C.F.R. § 3.306); but see Horn, 25 Vet. App. at 238 (emphasizing that "neither the presumption of aggravation of section 1153 nor the regulation implementing that statutory provision, § 3.306, has any application to an analysis under the aggravation prong of the presumption of soundness in section 1111"). If this burden is met, then the veteran is not entitled to service connection benefits. Wagner, 370 F.3d at 1096. On the other hand, if the presumption of soundness applies and the VA fails to show by clear and unmistakable evidence that the preexisting condition was not aggravated by active service, then the presumption has not been rebutted. See Id. at 1094 (holding that Congress intended to "convert aggravation claims to ones for service connection when the government fails to overcome the presumption of soundness under section 1111"). In that case, the claim will be considered as a normal claim for service connection and, if granted, no deduction for the degree of disability existing at the time of entrance will be made. Id. at 1096 (citing 38 C.F.R. § 3.322). In other words, the claim may not be denied, nor benefits deducted, on the basis of a finding that the disability in question preexisted active service, if VA does not also meet its evidentiary burden of showing that the disability was not aggravated during service. Id. If the presumption of soundness has not been rebutted, the disease or injury that manifested in service is deemed incurred in service, such that the second element of service connection is established. See Gilbert, 26 Vet. App. at 53 (citing Horn, 25 Vet. App. at 236). Nevertheless, the claimant must still establish a current disability related to the in-service injury or disease. Id. (citing Holton v. Shinseki, 557 F.3d 1363, 1367 (Fed. Cir. 2009) ("The presumption of soundness... does not relieve the veteran of the obligation to show the presence of a current disability and to demonstrate a nexus between that disability and the in-service injury or disease or aggravation thereof.")). The clear-and-unmistakable-evidence standard is a much more formidable evidentiary burden to meet than the preponderance-of-the-evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the clear-and-unmistakable-evidence standard is more demanding than the clear-and-convincing-evidence standard, which in turn is higher than the preponderance-of-the-evidence standard). It is an "onerous" and "very demanding" evidentiary standard, requiring that the evidence be "undebatable." Cotant v. West, 17 Vet. App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993)). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See Id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to service connection for multiple sclerosis. The appellant claims entitlement to service connection for the Veteran’s diagnosed multiple sclerosis and contends that the disease had its onset while the Veteran was on active duty service. The Board first notes that the record is silent for any incidents during the Veteran’s first period of active duty from November 1976 to March 1977. Essentially, multiple sclerosis was not shown in the Veteran’s first period of service and has not been associated with such service, and it has not been argued otherwise. In December 1993 the Veteran sought a second opinion from Dr. G.C., a private neurologist, regarding a diagnosis of multiple sclerosis that he had received in September 1989. Dr. G.C. reported that in September 1989 the Veteran had a sudden onset of nausea, dizziness, staggering, repeated vomiting and numbness on the left side of his face. Dr. C.G. reported that the Veteran was examined, and an MRI scan found multiple areas of abnormalities mostly in the white matter on both sides of his brain. Mild changes in the right side of his brain stem were also observed. The Veteran was noted to have oligoclonal bands present and his IGC index was elevated but his myelin basic protein was normal. It was noted that the Veteran had not had any symptoms prior or after the 1989 incident. Dr. G.C. stated that at the time of the incident in 1989 the Veteran was believed to have multiple sclerosis. Following subsequent MRI and physical examination Dr. G.C. opined that the incident that the Veteran had experienced in 1989 was a single acute episode. He further stated that based on the Veteran’s normal neurological examination he did not believe it would be reasonable to diagnose multiple sclerosis. Dr. C.G. explained that he would conclude that the September 1989 incident was an “acute episode of demyelination, etiology undetermined with no further symptoms.” The Veteran’s service treatment records from the National Guard contain a December 2003 Initial Medical Review and Annual Medical Certificate, on which the Veteran reported that he had the pre-existing condition of multiple sclerosis. At that time the physician noted that the Veteran had a demyelinating disease and a letter would be needed from a neurologist to discuss the Veteran’s diagnosis, prognosis, limitations and restrictions. Following the examination, the Veteran provided a letter to the Qualitative Retention Board in December 2003. In the letter the Veteran acknowledged a “possible diagnosis” of multiple sclerosis and stated that following the 1989 incident he has only suffered from one or two flare ups and was not taking any medication for his condition. In December 2003 the Veteran’s private treating physician, Dr. B.B. submitted a letter on the Veteran’s behalf. At that time Dr. B.B. stated that the Veteran had been a patient of his for over 20 years and the Veteran did have a history of an acute episode of central nervous system demyelination in 1989. The physician stated that the condition was a self-limited illness which had resolved completely and had not reoccurred. Dr. B.B. stated that although it was previously questioned whether the Veteran had multiple sclerosis, based on the lack of subsequent symptomatology, he was concluding that the Veteran did not in fact have a diagnosis of this disease. In a January 2004 Army National Guard Memorandum, it was determined that the Veteran was cleared of his medical problem. The Veteran re-entered active service in the Army on June 14, 2004. A Veteran is presumed to be in sound condition when entering into military service except for conditions noted on the entrance examination or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto, and that the disease or injury was not aggravated by service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Cotant v. Principi, 17 Vet. App. 116 (2003); VAOPGCPREC 3-2003 (2003). The Veteran was not provided an entrance examination at the time that he re-entered service in June 2004. The Board however finds that the January 2004 Memorandum is sufficient to determine that the Veteran’s multiple sclerosis was not “noted” at the time that he entered this period of service, and that the presumption of soundness applies. However, as discussed in further detail below, the Board finds that the evidence of record shows, clearly and unmistakably, that the Veteran's multiple sclerosis preexisted service and was not aggravated beyond its natural progression during active service or due to any exposure event or condition while on active duty service. The Board recognizes that the Veteran was treated for multiple sclerosis during active duty. The record reflects that in July 2004 the Veteran reported falling from a truck while in training in anticipation of oversees deployment. Following the accident, a September 2004 MRI found a number of characteristic white matter lesions which were clustered in the periventricular areas of both hemispheres. The lesions were found to be scattered and the largest ones measured up to a centimeter. The impression was demyelination on the MRI scan of the brain and not present on the spinal cord. In November 2004 a neurological evaluation was completed. At that time the examiner, Dr. B.B. found that the Veteran had “benign multiple sclerosis, most probably, although spirochete infection not completely exclude, meets McDonald’s criteria with increasing lesion burden on MRI, positive CSF.” The examiner further stated that the disease was a mild course for 15 years after a demyelinating episode. The Veteran was also noted to have heat sensitivity which would preclude him from active duty in uncontrolled temperatures. A January 2005 nerve condition study, conducted by Dr. S.H. revealed cervical spinal cord, thoracic cord, brainstem, and intracranial somatosensory lesions bilaterally, representing disseminated demyelination. On the report the examiner also noted “definite MS.” In April 2005 a private treatment note from Dr. S.H. reflect that the Veteran received a formal diagnosis of relapsing multiple sclerosis. He was found to meet the McDonald criteria for multiple sclerosis, with increasing lesion burden on MRI. In an August 2005 narrative summary from the Medical Evaluation Board (MEB), it was noted that the Veteran’s condition continued to slightly worsen with what the Veteran interpreted as more pronounced episodes of fatigue. Following proceedings in October 2005 the MEB determined that the Veteran’s multiple sclerosis had not existed prior to service and was not permanently aggravated by service. There was no further rationale provided to support this conclusion. In June 2006, following Physical Evaluation Board (PEB) Proceedings, the PEB determined that there was compelling evidence that the Veteran’s condition existed prior to service and was not permanently aggravated beyond its natural progression by such service. The PEB cited to the symptoms that the Veteran experienced during the September 1989 incident, including his dizziness, staggering and facial numbness. The PEB also cited to the MRI showing demyelination and the presence of oligoclonal bands and determined that the Veteran was asymptomatic until activation in service. In January 2006, Dr. S.H. provided a letter explaining that the Veteran had “clinically definite and laboratory proven relapsing multiple sclerosis diagnosed January 2005.” The examiner stated that the Veteran had an abnormal MRI with advancing lesion burden, elevated IGC index and a synthesis rate with greater than 5 oligoclonal bands in his CSF. Dr. S.H. determined that the Veteran would be unable to serve on active duty due to “severe heat intolerance causing limb weakness; sensory loss in feet causing unsteady gait; and cognitive issues with poor memory and concentration.” A March 2007 private treatment letter from Dr. S.H. indicated that the examiner had been treating the Veteran for multiple sclerosis and had seen a worsening in the Veteran’s condition since early 2005. The examiner noted that the Veteran began receiving Avonex injections in 2005 to help control the disease activity. A November 2005 MRI showed an “increased lesion burden from MS, with continued, albeit fewer active lesions”. The Board does note however that the examiner did not attribute the progression of the disease to an event in the Veteran’s service. A February 2007 VA examination noted a diagnosis of multiple sclerosis with an onset date of 1989. In a July 2018 decision, the Board determined that this matter should be remanded for an opinion on whether or not there was clear and unmistakable evidence that multiple sclerosis preexisted service, and regardless of etiology, whether multiple sclerosis was aggravated or worsened beyond the disability’s normal progression. A Medical Opinion and Disability Benefits Questionnaire (DBQ) was completed in September 2019. Based on a review of the record, the September 2019 VA examiner concluded that although there was no evidence that the Veteran’s multiple sclerosis existed prior to his enlistment in service in November 1976, there was in fact clear and unmistakable evidence in the records that the Veteran had multiple sclerosis prior to his entry into service in June 2004. In support of this medical conclusion, the VA examiner noted that the evidence included descriptions and testing which was conducted in 1989, specifically the demyelination which was seen on the MRI. The examiner noted that while demyelination could be due to other conditions such as acute demyelinating encephalomyelitis, this condition would usually be preceded by an acute illness, such of which was denied. The examiner further explained that the presence of oligoclonal bands in the Veteran’s Cerebrospinal fluid was noted to be present in the 1993 treatment note, and this is a strong indicator of the presence of multiple sclerosis. The presence of oligoclonal bands has a diagnostic specificity of 92.5-99.5%. The examiner stated that the diagnosis was not made during active service but was only confirmed at this time. The examiner also considered the Veteran’s 1993 statement that he experienced multiple flares since 1989 in support of the conclusion that the multiple sclerosis was present in 1989. The examiner determined that the Veteran satisfied the McDonald criteria for MS in 1989 in that he had multiple lesions on MRI with a single attack. He found that in 1993 he satisfied the McDonald criteria in a second and more definitive category in that he had two or more attacks with two or more lesions. He stated that the initial diagnosis of multiple sclerosis was in fact made in 1989, despite the fact that there were those who questioned the diagnosis until 2004. The examiner explained that the Veteran met all of the diagnostic criteria for multiple sclerosis before service in 2004, and the same condition which was diagnosed in 1989 continued throughout the remainder of the Veteran’s life. The September 2019 VA examiner further opined that the Veteran’s multiple sclerosis which clearly and unmistakably pre-existed his entry into active service in June 2004 was not aggravated beyond its natural progression during active service or due to any exposure event or condition while on active duty. The examiner explained that there are four basic phenotypes of multiple sclerosis. Although the examiner explained each type of phenotype, he pointed out that the pattern described by the Veteran was that of Relapsing-remitting MS (RRMS). The examiner stated that this is the most common disease course and with it there are clearly defined attacks of new or increasing neurologic symptoms. The attacks, which are also called relapses or exacerbations are then followed by periods of partial or complete recovery (remissions). The examiner explained that during a period of remission there is no apparent progression of the disease. The examiner noted that the natural course of multiple sclerosis is one of progression over time and there is nothing in the records which suggest additional symptoms or progression of the disease during the Veteran’s active service. The Board finds the September 2019 VA opinion to be of significant probative value. Indeed, the examiner considered the appellant and Veteran’s contentions and clinical medical evidence before providing a negative opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion). The examiner also had to opportunity to review the entire claims file, including the private examinations and opinions of record. There is no indication that the private medical opinions to the contrary were reached after a review of the Veteran’s entire claim file and record. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The examiner's negative opinion was supported by a sufficiently clear and well-reasoned medical rationale and was consistent with the verifiable facts regarding the Veteran's contentions. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005). Therefore, given the examiner's medical opinion, which is supported by medical evidence and knowledge, the Board affords such probative weight, and finds that the Veteran's multiple sclerosis clearly and unmistakably preexisted his active duty service and was not permanently worsened as a result of his service. See Monzingo v. Shinseki, 26 Vet. App. 97, 105-06 (2012); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board acknowledges that the appellant is competent to provide statements as to her beliefs that the Veteran’s multiple sclerosis was related to service. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). In order for lay evidence to be competent, the individual must have personal knowledge, derived from his/her own senses, of what is being attested; "[c]ompetent testimony is thus limited to that which the witness has actually observed, and is within the realm of his personal knowledge." Layno v. Brown, 6 Vet. App. 465, 471 (1994). There however is nothing in the record to suggest that the appellant has the appropriate training, experience, or expertise to render a medical opinion regarding etiology of such a condition of any kind. See 38 C.F.R. § 3.159 (a)(1) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the appellant is competent to report what she has observed, she is not competent to ascertain the etiology of any current condition, as the causative factors for such are not readily subject to lay observation. See Layno v. Brown, 6 Vet. App. 465 (1994); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, her assertions to that effect are of no probative value. As described, the evidence of record clearly and unmistakably shows that the Veteran had multiple sclerosis which existed prior to service, and the evidence clearly and unmistakably establishes that the preexisting multiple sclerosis was not permanently aggravated by the Veteran's military service. Therefore, the presumption of soundness has been rebutted and the appellant’s claim for service connection for multiple sclerosis is denied. As such, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to a total disability rating based on individual unemployability due to service- connected disabilities (TDIU). The appellant contends that the Veteran’s service-connected disabilities precluded him from obtaining and maintaining substantially gainful employment. The period on appeal for TDIU is from one year prior to the date of increased rating claim, here April 30, 2007. Therefore, the relevant period before the Board is from April 30, 2006 until March [REDACTED], 2011, which is the date that the Veteran passed away. TDIU A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd v. McDonald, 27 Vet. App. 79, 85-86 (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 there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstance." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)); see also Todd, 27 Vet. App. at 85-86. Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran's master degree in education and his part-time work as a tutor). 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. 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. As noted, consideration may not be given to the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. However, when it is not possible to separate the effects of a non-service-connected condition from those of a service-connected disorder, reasonable doubt should be resolved in the claimant's favor with regard to the question of whether certain signs and symptoms can be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); see also 38 C.F.R. § 3.10. In discussing the unemployability criteria, the United States Court of Appeals for Veterans Claims (Court) has indicated that, in essence, the unemployability question, that is, the veteran's ability or inability to engage in substantial gainful activity, has to be looked at in a practical manner, and that the thrust is whether a particular job is realistically within the capabilities, both physical and mental, of the appellant. See Moore v. Derwinski, 1 Vet. App. 83 (1991). The VA General Counsel has concluded that VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities shall be rated as totally disabled, without regard to whether an average person would be rendered unemployable by such circumstances. Thus, the criteria include a subjective standard. It was also held that unemployability is synonymous with the inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91 (1991). As noted above, in determining whether the veteran is entitled to individual unemployability, neither his non-service-connected disabilities nor his advancing age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Thus, in deciding the claim, the Board may not favorably consider the effects of the non-service-connected disabilities with respect to their degree of interference with his employability. Indeed, the Court stated that in order for a veteran to prevail on a claim for TDIU, the record must reflect some factor which takes his case outside of the norm. The sole fact that he is unemployed or has difficulty obtaining employment is not enough. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, supra. If total industrial impairment has not been shown, the VA is not obligated to show that a veteran is incapable of performing specific jobs in considering a claim for a total rating based on individual unemployability. See Gary v. Brown, 7 Vet. App. 229 (1994). In a recent precedential decision, the Court found that there was no mention or definition of "sedentary work" in the applicable statutes or regulations, and therefore, "the concept of 'sedentary work' is not necessarily part of a proper TDIU analysis." Withers v. Wilkie, 30 Vet. App. 139 (2018). The Court declined to define the term. If the Board relies on the term "sedentary work" in making a determination of entitlement to TDIU, the Board must explain the meaning derived from that concept. Where a veteran's ability to perform sedentary work is a basis for the Board's decision, the meaning of sedentary work must be determined from the particulars of the medical opinion in which it is used. That is, the Board must explain this meaning to the extent that it is not apparent from the Board's overall discussion of the opinion as well as how the concept of sedentary work factors into the veteran's overall disability picture and vocational history, and the veteran's ability to secure or follow a substantially gainful occupation. The Board must consider the Veteran's education, training, and work history. 38 C.F.R. § 4.16. The Board notes that the ultimate question of whether a Veteran is capable of substantially gainful employment is a legal determination for VA adjudicators to make rather than a medical question to be answered by healthcare providers. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Thus, VA examiners' conclusions, as well as those of private medical professionals or vocational experts, are not dispositive. However, the observations of these professionals may provide probative evidence as to a Veteran's ability to obtain and maintain employment consistent with his or her education and experience. Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Schedular TDIU A total disability rating for individual unemployability may be granted where the schedular rating is less than total and the service-connected disabilities preclude the veteran from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). In this case, the Veteran does not meet the schedular threshold requirements for a TDIU, to include consideration of the results of this Board decision. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2019). From April 30, 2006 until March [REDACTED], 2011, the Veteran was service connected for degenerative changes of the cervical spine, post anterior fusion, with surgical scar evaluated as 30 percent disabling; varicose veins of the right leg evaluated as 30 percent disabling, hearing loss evaluated as 20 percent disabling, varicose veins of the left leg evaluated as 10 percent disabling, coronary artery disease status post coronary artery bypass graft associated with hypertension evaluated as 10 percent disabling, hypertension evaluated as 10 percent disabling, and headaches associated with degenerative changes of the cervical spine evaluated as non-compensable. The Veteran's total combined evaluation is 70 percent. The Board notes that in an October 2020 Brief the appellant asked the Board to consider higher ratings for several disabilities that the Veteran was rated for before he passed away. The appellant argues that a higher rating may enhance the viability of a claim for TDIU. There however is no appeal pending before the Board for an increased rating for any of the Veteran’s service- connected disabilities. Thus, the Board has no jurisdiction to consider this issue. 38 U.S.C. § 7105. As the Veteran does not have a combined evaluation of at least 70 percent with at least one disability evaluated at 40 percent or higher, or a single service-connected disability that has been rated 60 percent or higher during the period at issue, under the 38 C.F.R. § 4.16(a) criteria outlined above, the Veteran does not meet the schedular criteria for a schedular TDIU rating. Consequently, a TDIU rating on a schedular basis, under 38 C.F.R. § 4.16(a), is not warranted for the applicable period. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Extraschedular TDIU If the above percentage thresholds are not met, the appellant’s claim may still be referred to the Director, Compensation Service for consideration of an extraschedular rating, when the evidence of record shows that Veteran was "unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities." 38 C.F.R. § 4.16(b). The Veteran completed 12 years of school and graduated from high school. The record does not reflect that he had any formal schooling or technical training beyond his high school education. In his February 2010 VA Form 21-8940, the Veteran indicated that he last worked as a self- employed building contractor from 1976 to 2004. According to the record he has done no other type of work other than contracting work. A review of the Veteran’s VA Forms 21-8940 submitted in October 2006, January 2008, January 2010 and February 2020 reflect that Veteran stated that his neck, back, M.S. and heart disabilities prevented him from obtaining substantially gainful employment. The Veteran was afforded a VA examination in March 2010 for his service-connected cervical spine disability. It was noted that the Veteran was using an electric wheelchair but stated that it was mostly for his multiple sclerosis and not his neck disability. At that time the examiner noted that the Veteran was capable of performing full sedentary work, but his physical activity would be limited to a couple hours a day with frequent rest. The examiner noted that the Veteran would be limited in performing tasks that included lifting, bending, squatting or twisting. The examiner noted that the Veteran turning his neck would also aggravate his cervical spine disability. The Veteran was afforded a VA examination in March 2010 for his varicose veins. At that time the examiner stated that this disability was mild, and the Veteran had undergone no treatment for it. The examiner opined that there should be no limitation on the Veteran’s employability due to this condition. In April 2010 the Veteran was afforded a VA neurological examination. The examiner noted that the Veteran was applying for unemployability and was service connected for hypertension, varicose veins, impaired hearing, migraine headaches, atherosclerotic heart disease, degenerative arthritis and degenerative changes in the cervical spine with post anterior fusion of the cervical spine. At that time the Veteran reported that he was unable to work in his normal employment as a contractor. The examiner opined that the Veteran had multiple conditions which would interfere with his ability to perform in a position as contractor. In coming to this conclusion, the examiner cited to the Veteran orthopedic problems, multiple sclerosis and decreased sensation to light touch and vibration as well as his limited ability to ambulate. Following the December 2012 Board remand, a medical opinion was requested in September 2013 to determine if the Veteran’s service-connected conditions precluded him from performing all forms of substantially gainful employment during the period on appeal. At that time the examiner stated that he reviewed 6 volumes of the Veterans’ claim file, paying special attention to his C&P exams. The examiner pointed out that from his review of the VA examinations of record, the Veteran’s hypertension, coronary artery disease, hearing loss and varicose veins and scar from his cervical spine would not have any impact on his employability, either physical or sedentary. The examiner noted that according to the record it was noted the Veteran’s headaches would prevent him from working as a contractor because he could not climb ladders anymore, however the examiner pointed out that the impact of the headaches themselves on employability was not addressed in the previous examination. The examiner stated that in his opinion, upon review of the claim file the Veteran’s physical employability would have been limited due to his cervical spine injury. The examiner stated that sedentary employment would not be limited by the Veteran’s medical conditions. The examiner also noted that the Veteran’s multiple sclerosis and COPD would have impacted his occupational abilities in the physical field. Medical examiners are responsible for providing a full description of the effects of a disability upon the person's ordinary activity. 38 C.F.R. § 4.10; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). It is important to note that while the VA examiners have opined that the Veteran’s service- connected spine injury would limit his physical work abilities, the examiners did not indicate that the disability would prohibit all physical employment. The Board finds the preponderance of the evidence shows that for the period on appeal the Veteran remained capable of performing the physical and mental acts required for some form of gainful employment, including employment that requires limited lifting, bending, squatting and twisting. The Board notes that a job in an office setting, such as an administrative job, would be consistent with the Veteran's remaining functional capacity, as well as his education and work history. The effects of the Veteran’s service-connected cervical spine disability may very well result in some occupational impairment. However, such interference is contemplated in the currently assigned ratings for the Veteran's service-connected disabilities, and the weight of the evidence does not demonstrate total occupational impairment associated with the service-connected cervical spine disability for the period on appeal. Additionally, the Board acknowledges that the evidence indicates the Veteran's service-connected disabilities could interfere with some types of employment to include employment that involves his ability to lift, bend, squat or twist. However, all forms of gainful employment are precluded by any service-connected disability. The evidence of record does not demonstrate that the service-connected disabilities alone rendered the Veteran unemployable during the period on appeal. The Board notes and acknowledges the limitations of the Veteran's other diagnosed conditions, especially his multiple sclerosis and chronic obstructive pulmonary disorder (COPD). However, those other physical disabilities are not service-connected, and are thus not pertinent to the Veteran's claim for a TDIU. In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Under these circumstances, the Board concludes that extraschedular referral for TDIU is not warranted. Gilbert, supra. Based on the foregoing, the Board finds that referral to the Director of Compensation Service for consideration of TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b) is not warranted because the most credible, competent, and probative evidence of record does not reflect that the Veteran was unable to follow or secure substantially gainful employment due to his service-connected disabilities from April 30, 2006 until March [REDACTED], 2011. See also Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). Neither the appellant nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 36970 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Finally, in making this decision, the Board is compelled to express that we are grateful to the deceased Veteran for his honorable service and regrets that a more favorable outcome could not be reached on the appellant's claims. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Nettey, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.