Citation Nr: 18140175 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 13-33 170 DATE: October 2, 2018 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) prior to July 14, 2008 is denied. FINDING OF FACT The Veteran was gainfully employed continuously for many years and the weight of the evidence is against a conclusion that service-connected disabilities prevented him from securing and following a substantially gainful occupation prior to July 14, 2008. CONCLUSION OF LAW Prior to July 14, 2008, the criteria for a TDIU is not warranted. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.18, 4.19 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the U.S. Army from May 1968 to May 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Veteran submitted a notice of disagreement (NOD) in March 2010 which addressed his disagreement with the evaluation assigned to his service-connected posttraumatic stress disorder (PTSD) and the denial of a TDIU. A statement of the case (SOC) was issued in October 2013. The Veteran perfected a timely substantive appeal via VA Form 9 in November 2013; he limited the appeal to the issue of entitlement to a TDIU. Subsequently, a September 2016 rating decision granted entitlement to a TDIU effective July 14, 2008. The Board observes that the November 2013 VA Form 9 limited the Veteran’s appeal to the issue of a TDIU only. Subsequently, the RO issued rating decisions and supplemental SOCs regarding increased ratings for PTSD and peripheral neuropathy of the upper and lower extremities. The December 2016 VA Form 8 certified six issues to the Board. However, the VA Form 8 is for administrative purposes and does not confer or deprive the Board of jurisdiction. See 38 C.F.R. § 19.35 (2017). Consequently, the only issue before the Board is that of entitlement to a TDIU prior to July 14, 2008. A timely substantive appeal has not been perfected for any other claim. 1. Entitlement to a total disability rating for individual unemployability prior to July 14, 2008 A September 2016 rating decision granted entitlement to a TDIU effective July 14, 2008. Thus, the issue for consideration is whether a TDIU was warranted prior to that date. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). However, a total rating based on individual unemployability may still be assigned to a veteran who fails to meet the percentage standards if he is unemployable by reason of his service-connected disabilities. If a veteran is found to be unemployable solely due to his service connected disabilities, then the case is to be referred to the Director of Compensation Service for extraschedular consideration. The question therefore becomes whether or not the veteran is unable to secure or follow a substantially gainful occupation solely due to service connected disabilities. 38 C.F.R. § 4.16(b). Prior to July 14, 2008, the Veteran was rated for PTSD evaluated as 30 percent disabling; peripheral neuropathy of the left and right lower extremities evaluated as 10 percent disabling on each side; peripheral neuropathy of the left and right upper extremities evaluated as 10 percent disabling on each side; diabetes mellitus type II evaluated as 20 percent disabling; tinnitus evaluated as 10 percent disabling; and bilateral hearing loss evaluated as noncompensable. In the present case, the Veteran met the schedular criteria for a TDIU based on common etiology and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). After thorough review of the lay and medical evidence, the Board finds that some functional impairment related to the Veteran’s disabilities has been demonstrated; however, the evidence fails to persuasively show that his service-connected disabilities rendered him unable to work prior to July 14, 2008. In February 2007, private mental health records reflect the Veteran’s report that he had problems at work with a company bringing in Southeast Asian employees due to his trauma during the Vietnam war. The private psychologist stated that the Veteran showed significant social and occupational problems. Upon VA mental health examination in May 2007, the Veteran reported working as a machine operator in a retail store for 23 years until his retirement in September 2006. He described anger and isolation. At work, he was distracted and admonished for poor quality of production. He had problems with his boss but good relationships with his co-workers. The examiner noted that he was oriented to person, place, and date. His speech was normal and his cognitive skills were fairly intact. In July 2007, VA treatment notes reflect the Veteran’s report of numbness and shaking in his hands. Good strength was noted in the upper extremities. In June 2008, numbness and pain in both hands was reported. No weakness was present; reflexes and strength were normal. In July 2008, he was warned about the seriousness of his diabetes. A diabetic foot examination was normal. In an October 2008 examination, the Veteran reported working until his retirement. He denied any problems with employment. While the evidence above demonstrates some functional impairment related to the Veteran’s disabilities, the evidence fails to persuasively show that the service-connected disabilities rendered him unable to work prior to July 14, 2008. The Board acknowledges the Veteran and appellant’s assertions that he was unemployable due to his PTSD and peripheral neuropathy. They are competent to describe the symptoms he has experienced. However, the record does not indicate, and they have not asserted, that they have any specific medical expertise or experience which would enable them to offer an expert medical opinion regarding the type and degree of the functional impairment associated with his disabilities. The competent medical evidence pertinent to the criteria governing the award of a TDIU is the most probative evidence with regard to evaluating the functional impact of his service-connected disability on his employability. As such, while the Board accepts the lay statements with regard to the matters they are competent to address, it relies upon the unbiased, competent medical evidence with regard to the specialized evaluation of functional impairment, symptom severity, and the impact of the service-connected disabilities on his employability. While cognizant of the impairment from his service-connected disability, these limitations are recognized by the various evaluations assigned. The Board finds that the Veteran was not precluded from securing or maintaining substantially gainful employment during the period prior to July 14, 2008 due to his service-connected disabilities. In reaching this determination, consideration was not given to his advancing age or nonservice-connected conditions. Accordingly, the Board finds that the preponderance of the evidence is against a finding that the Veteran was precluded from securing or maintaining substantially gainful employment during the relevant period due to his service-connected disabilities. The fact that he was unemployed or had difficulty obtaining employment 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, not whether he could find employment. In the present case, the evidence does not persuasively show that he was incapable of performing the physical and mental acts required for gainful employment due solely to his service-connected disability. Indeed, the Veteran was able to maintain employment from 1995 to 2006 while experiencing many of the symptoms described in regard to his PTSD and peripheral neuropathy. (Continued on the next page)   In reaching the conclusions herein, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jamison, Elizabeth G.