Citation Nr: 18145486 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 12-03 930 DATE: October 29, 2018 ORDER The appeal with respect to the issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for prostate cancer is dismissed. The appeal with respect to the issue of entitlement to service connection for low back disability is dismissed. The appeal with respect to the issue of entitlement to service connection for a bilateral foot disability is dismissed. The appeal with respect to the issue of entitlement to service connection for a bilateral eye disability is dismissed. The appeal with respect to the issue of entitlement to service connection for a liver disability is dismissed. The appeal with respect to the issue of entitlement to service connection for gastroesophageal reflux disease (GERD) is dismissed. The appeal with respect to the issue of entitlement to service connection for a bladder disability is dismissed. The appeal with respect to the issue of entitlement to service connection for migraine headaches is dismissed. The appeal with respect to the issue of entitlement to service connection for neuropathy of the left and right upper extremity is dismissed. The appeal with respect to the issue of entitlement to service connection for neuropathy of the left and right lower extremities is dismissed. The appeal with respect to the issue of entitlement to a rating in excess of 40 percent prior to April 7, 2016, and in excess of 60 percent from that date, for bilateral hearing loss disability is dismissed. The appeal with respect to the issue of entitlement to special monthly pension (SMP) based on need for the regular aid and attendance of another person and/or housebound status is dismissed. Entitlement to an initial rating in excess of 30 percent prior to April 18, 2016, and in excess of 50 percent from that date, for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted from April 7, 2016, but no earlier, subject to the laws and regulations governing payment of monetary awards. FINDINGS OF FACT 1. During a March 2018 Board videoconference hearing, prior to the promulgation of the Board’s decision in the appeal, the Veteran withdrew his appeal with respect to the issues of: whether new and material evidence has been received to reopen a claim of entitlement to service connection for prostate cancer; entitlement to service connection for low back disability, bilateral foot disability, bilateral eye disability, liver disability, GERD, a bladder disability, migraine headaches, neuropathy of the left and right upper extremity disabilities, neuropathy of the left and right lower extremities; entitlement to an increased rating for hearing loss disability; and entitlement to SMP based on need for the regular aid and attendance of another person and/or housebound status. 2. For the period of the appeal prior to April 18, 2016, the Veteran’s service-connected PTSD was manifested by no more than occupational and social impairment due to mild symptoms with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks although generally functioning satisfactorily. 3. For the period of the appeal beginning April 18, 2016, the Veteran’s service-connected PTSD has been manifested by no more than occupational and social impairment with reduced reliability and productivity; the evidence does not show an inability to establish and maintain effective relationships or neglect of personal appearance and hygiene,; suicidal ideation, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, impaired thinking or judgment, or symptoms of such severity, frequency, and duration as to equate to deficiencies in most areas. 4. Prior to April 7, 2016, the Veteran’s service-connected disabilities did not meet the schedular criteria for a TDIU rating, and the competent evidence of record did not support a finding that his service-connected disabilities were of such nature and severity as to preclude him from securing or maintaining substantially gainful employment. 5. Since April 7, 2016, the Veteran’s service-connected disabilities have met the schedular criteria for a TDIU rating, and the competent evidence of record supports a finding that the Veteran’s service-connected disabilities have been of such nature and severity as to preclude him from securing or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a Substantive Appeal by the Veteran for the issues of: whether new and material evidence has been received to reopen a claim of entitlement to service connection for prostate cancer; entitlement to service connection for low back disability, bilateral foot disability, bilateral eye disability, liver disability, GERD, a bladder disability, migraine headaches, neuropathy of the left and right upper extremity disabilities, neuropathy of the left and right lower extremities; entitlement to an increased rating for hearing loss disability; and entitlement to SMP based on need for the regular aid and attendance of another person and/or housebound status have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. §§ 20.202, 20.204. 2. The criteria for an initial rating in excess of 30 percent prior to April 18, 2016, and in excess of 50 percent from that date, for PTSD have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.130, Diagnostic Code 9411. 3. Since April 7, 2016, the criteria for a TDIU have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1968 to April 1970, to include service in the Republic of Vietnam. This case was before the Board in March 2016 when it was remanded for additional development. The Veteran testified at a March 2018 videoconference hearing before the undersigned. At the videoconference hearing, a 60-day abeyance period for the submission of additional evidence was granted. 38 C.F.R. § 20.709. Subsequently, in May 2018, the Veteran submitted additional medical evidence with a waiver of initial Agency of Original Jurisdiction (AOJ) review. 38 C.F.R. §§ 20.709, 20.1304. Withdrawn Claims An appellant may withdraw an appeal in writing or on the record at a hearing on appeal at any time before the Board promulgates a final decision. 38 C.F.R. § 20.204. When an appellant does so, the withdrawal effectively creates a situation where there no longer exists any allegation of error of fact or law. Consequently, in such an instance, the Board does not have jurisdiction to review the appeal, and the appropriate action by the Board is dismissal. 38 U.S.C. §§ 7104, 7105(d). During the March 2018 Board videoconference hearing, the Veteran withdrew his appeal with respect to the issues of: whether new and material evidence has been received to reopen a claim of entitlement to service connection for prostate cancer; entitlement to service connection for low back disability, bilateral foot disability, bilateral eye disability, liver disability, GERD, a bladder disability, migraine headaches, neuropathy of the left and right upper extremity disabilities, neuropathy of the left and right lower extremities; entitlement to an increased rating for hearing loss disability; and entitlement to SMP based on need for the regular aid and attendance of another person and/or housebound status. See 38 C.F.R. § 20.204. Given the Veteran’s clear intent to withdraw his appeal in these matters, further action by the Board on these issues would not be appropriate. 38 U.S.C. § 7105. Increased Rating for PTSD Entitlement to an initial rating in excess of 30 percent prior to April 18, 2016, and in excess of 50 percent from that date, for PTSD. Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. A Veteran’s entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran submitted a claim seeking service connection for PTSD in July 2010. A November 2010 rating decision awarded service connection for PTSD, and a 30 percent rating was assigned effective July 27, 2010. The Veteran appealed the initial rating assigned. His PTSD is currently assigned a 30 percent disability rating prior to April 18, 2016, and a 50 percent rating from that date. Under the General Rating Formula for Mental Disorders, to include PTSD disorder, a 30 percent rating is warranted when a mental disability results in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted where there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed in the rating formula are examples, not an exhaustive list. Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding that “any suggestion that the Board was required... to find the presence of all, most, or even some of the enumerated symptoms is unsupported by a reading of the plain language of the regulation”). However, “a Veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). “The regulation’s plain language highlights its symptom-driven nature” and “symptomatology should be... the primary focus when deciding entitlement to a given disability rating.” Id. As such, consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment to the extent specified in the rating criteria, rather than solely on the examiner’s assessment of the level of disability at the moment of examination. See 38 C.F.R. § 4.126(a). Upon review of the evidence of record, the Board finds that an initial rating in excess of 30 percent is not warranted for the Veteran’s service-connected PTSD at any time prior to April 18, 2016. The evidence from September 2010 and June 2013 VA examinations and the Veteran’s treatment records for this period reflect that his mental disability most nearly approximated a 30 percent rating for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational task due to depression, anxiety, sleep difficulty, and occasional irritability. See Mauerhan v. Principi, 16 Vet. App. 436. The Board notes that the Veteran’s treatment records and VA examinations for the period prior to April 18, 2016, show that the Veteran demonstrated an ability to function independently, was consistently reported as alert and oriented, with normal speech, logical thought process and no gross deficits in judgment or memory loss. The Veteran also established and maintained stable relationships with his wife of more than 40 years, three children, and some friends who visited him in his home, as noted in the September 2010 and June 2013 VA examination reports. He continued to attend church and visit other public places such as restaurants and stores. He enjoyed working on cars and had started repairing lawn mowers to occupy his time, as noted on VA PTSD examination in June 2013 and in a November 2014 VA psychiatry treatment note. The evidence for the period prior to April 18, 2016, does not show symptoms associated with a 50 percent rating: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. The absence of these symptoms is not outcome determinative. However, the Veteran also failed to show other symptoms of similar severity, frequency, and duration. Therefore, the Veteran does not meet the level of severity of the symptomatology required for a 50 percent rating, i.e. occupational and social impairment with reduced reliability and productivity for the period. See Vasquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). While the evidence does show some occasions of flattened effect during the period at issue (see November 2014 VA outpatient treatment record), this does not appear to be a consistent and general feature of the Veteran’s PTSD for this period. Most often, the Veteran’s affect was described as normal. Moreover, although the Veteran reported thoughts of suicide in January 2012, he denied any plan or prior suicide attempts. He also subsequently denied suicidal ideation in August 2012, June 2013, and November 2014. Therefore, the evidence of record simply does not support symptoms of such frequency, severity, or duration to warrant a 50 percent disability rating for PTSD prior to April 18, 2016. 38 C.F.R. 4.130, Diagnostic Code 9411. Additionally, the Board finds that an initial rating in excess of 50 percent is not warranted for the Veteran’s service-connected PTSD at any time since April 18, 2016. An April 18, 2016 VA PTSD examination report notes that the Veteran had been unemployed since 2009. He reported that he had been fired from his job as a truck driver due to medical issues that precluded him from driving. Subsequently, his commercial driver’s license was revoked in 2012 and his regular driver’s license was revoked in 2014. He denied any history of legal problems or substance abuse. On examination, he complained of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, difficulty in establishing effective work and social relationships, and difficulty adapting to stressful circumstances. Examination revealed that the Veteran was alert and fully oriented; he demonstrated good grooming and hygiene. He was alert and cooperative, and made appropriate eye contact. His mood was anxious with congruent affect. Speech was of normal rate, rhythm and volume. He became tearful when discussing traumatic events related to service. He denied any history or current suicidal or homicidal ideation, intent, or plan. In addition, he denied any hallucinations, delusions, or manic episodes. He reported independent management of his activities of daily living. After examining the Veteran and reviewing the claims file, the examiner opined that the Veteran’s PTSD resulted in occupational and social impairment with reduced reliability and productivity. The examiner also noted that the Veteran scored an 18.5 on the Adult Functional Adaptive Behavior Scale, which placed him in the independent functioning category. Some dependence on his spouse or other person was indicated, but otherwise the Veteran functioned on a high level. The Veteran reported that he was able to maintain employment even with his struggles related to PTSD prior to being fired. In a February 2018 statement, the Veteran reported feelings of irritability, jumpiness and paranoia. He described a pattern of isolation from everyone except his wife and children. He also stated that he enjoyed fishing, hunting and being outdoors, and was involved in veterans’ groups. In a February 2018 statement, the Veteran’s wife reported he had problems sleeping and was very irritable. She did not believe that the Veteran would ever hurt himself or anyone else. At no point since April 18, 2016, has the severity of the Veteran’s psychiatric disability most closely approximated occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. In general, the evidence shows that the Veteran’s routine behavior, self-care, and conversation were normal. Moreover, there is no evidence that the Veteran’s PTSD impaired his performance of routine activities, his ability to function independently, or his ability to control his impulses. The Veteran did not also exhibit spatial disorientation or obsessional rituals that interfered with routine activities. His depressed mood, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships are all contemplated by the 50-percent evaluation under the General Rating Formula. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Overall, the evidence of record does not show symptoms equivalent in severity to those associated with a 70 percent rating, nor does it show deficiencies in most areas because of such symptoms. Both factors must be present in order to satisfy or more nearly approximate the criteria for a 70 percent evaluation. See Vazquez-Claudio, 713 F.3d at 118; 38 C.F.R. § 4.130, Diagnostic Code 9411. Finally, the Board also recognizes the testimony provided by the Veteran and his wife during the March 2018 Board hearing. In this regard, the Veteran’s attorney elicited testimony from the Veteran and his wife as to the severity of his PTSD, and argued that a 70 percent evaluation was warranted. The attorney maintained that the Veteran had “consistent suicidal ideation,” and pointed to a January 2012 VA treatment record wherein the Veteran reported “recent suicidal thoughts within the past month.” However, later in the hearing, the Veteran explained that he had frequent thoughts of hurting himself 20 years ago when he was “really being stressed out,” but these feelings were not as bad currently. He said he isolated himself from people since 1970, and currently spent his days in a shed. However, he later testified that he enjoyed outdoor sports such as fishing, hunting and camping. During these activities he did not mind meeting and talking with people. He also indicated that he had gone on some fishing cruises with friends and fellow church members, and later noted that he participates in church meetings where he is the chairman of the Deacon’s Board. These activities do not suggest an inability to establish and maintain effective relationships. The Veteran also testified that he experienced hallucinations; however, the contemporaneous medical evidence contradicts these reports, as well as those of suicidal ideation and complete social isolation. Accordingly, the Board finds that the preponderance of the evidence of record is against an initial disability rating in excess of 30 percent for the Veteran’s service-connected PTSD prior to April 21, 2016, and a rating in excess of 50 percent from that date. The benefit of the doubt rule is not for application. There is not an approximate balance of evidence. See Gilbert, supra. TDIU The Veteran contends he is entitled to a TDIU rating because his service-connected disabilities prevent him from working. See April 2013 claim. Schedular TDIU VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 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). 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. “Substantially gainful employment” is that employment “which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). As further provided by 38 C.F.R. § 4.16 (a), “Marginal employment shall not be considered substantially gainful employment.” The central inquiry is, “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran’s overall combined disability evaluation first satisfied the schedular rating requirements for TDIU, under 38 C.F.R. § 4.16 (a)(2), as of April 7, 2016. On that date, he had at least one disability ratable at 40 percent, and his combined evaluation was 80 percent. Specifically, bilateral hearing loss was rated 60 percent, PTSD was rated 30 percent, and tinnitus was rated 10 percent. The Veteran completed a VA Form 21-4192 in December 2009, March 2011, April 2013 and February 2018. In December 2009 and March 2011, the Veteran reported completing a high school education. In February 2018, he confirmed that he last worked in December 2009 as a truck driver. He stated during a September 2015 hearing that he had worked as a truck driver for 40 years before retiring. The Veteran indicated that he was unable to work because of all his service-connected disabilities. An April 2009 letter from a trucking company notes that the Veteran voluntarily resigned from his employment in March 2009. He was also decertified from operating a commercial vehicle from the company. In April 2013, the Veteran submitted a letter from a private physician, who stated that the Veteran was found unable to secure or follow a substantially gainful occupation as a result of his service connected disabilities. No reasons and bases for this opinion were provided. There is no indication that the physician reviewed the Veteran’s claims file or examined the Veteran. An April 2013 VA audiology hearing evaluation consult notes that the Veteran’s hearing aids were reprogrammed and he was very happy with the results. The Veteran was afforded several VA examinations throughout the appeal period (since April 2013) which provided opinions regarding the impact of his service-connected disabilities on employment. A May 2013 VA hearing loss examination report notes the examiner’s opinion that the hearing loss affected the Veteran’s ability to work, because he had to wear hearing aids to communicate and even then had difficulty understanding people. The examiner further opined that the Veteran’s hearing loss alone “should not be a barrier to a wide range of employment settings.” It was further noted that the Veteran might have trouble working in very noisy environments, jobs that required the use of speakers or intercoms, or jobs requiring attention to high pitched sounds. The examiner stated that the Veteran’s tinnitus did not impact his ability to work. A June 2013 VA PTSD examination report notes that the Veteran’s PTSD was not severe enough to interfere with his occupational and social functioning, or to require continuous medication. A November 2014 VA audiology consult notes that the Veteran reported improved sound quality after his hearing aids were adjusted. In an April 7, 2016, VA hearing loss examination report, the examiner opined that the Veteran’s hearing loss impacted his ability to work. The examiner stated that the hearing loss disability affected all manner of communication. An April 2016 VA PTSD examination report notes that the Veteran had difficulty adapting to stressful circumstances, including work or a work-like setting. The examiner opined that PTSD caused clinically significant distress or impairment in social, occupational, or other important areas of functioning. In a February 2018 VA Form 21-8940, the Veteran reported that he was still employed with a trucking company in 2010; however, he was not able to work because he was recovering from prostate surgery. He was given three months to recover, but then was terminated in March 2010 because of his health issues, including the prostate surgery and various medications he was taking for high blood pressure, high cholesterol, enlarged prostate and PTSD. The Veteran also indicated that his hearing problems contributed to his termination. See March 2018 hearing transcript. In a statement received in March 2018, the Veteran’s wife stated that she felt that her husband was unable to work because his hearing loss and tinnitus prevented him from hearing instructions and his PTSD made it impossible to be around other people. The Veteran submitted an April 2018 vocational assessment from BMR, who reviewed the Veteran’s claims file and opined that, as a result of his service-connected PTSD, hearing loss and tinnitus, he “has been unable to secure or maintain any substantially gainful occupation since March 28, 2011 when he could no longer tolerate performing any type of work activity at a substantially gainful lever.” Although BMR included a detailed summary of the Veteran’s medical history, no specific explanation for choice of March 28, 2011, for the date of unemployability was provided. A May 2018 letter from the Veteran’s attorney may provide some insight, as the attorney maintains that the Veteran met the schedular requirements for TDIU on March 28, 2011, when his service-connected disabilities were PTSD evaluated as 30 percent disabling, hearing loss evaluated as 30 percent disabling and tinnitus evaluated as 10 percent disabling, for a combined rating of 60 percent. The attorney presented the argument that these disabilities are considered one disability under 38 C.F.R. § 4.16(a) because the disabilities were all incurred in service. However, this is not one of the definitions for “one disability” under the regulation. These are not disabilities from a single accident, common etiology, injuries incurred action or as a prisoner of war, or affecting one body system. Id. The Board finds that the evidence of record reasonably establishes that effective April 7, 2016, but no earlier, the Veteran was unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. See 38 C.F.R. §§ 3.340, 4.16(a). Specifically, the schedular requirements were met on this date. The medical and other competent evidence of record also shows that as of this date, the Veteran suffered from impairments as a result of his hearing loss and PTSD which impacted his ability to obtain and sustain employment in any field. Extraschedular TDIU As noted above, prior to April 7, 2016, the Veteran’s service-connected disabilities did not meet the schedular requirements for a TDIU rating. See 38 C.F.R. § 4.16(a). If the Veteran does not meet the required percentage standards set forth in 38 C.F.R. § 4.16 (a), he still may receive a TDIU on an extraschedular basis if it is determined that he is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. 38 C.F.R. § 4.16 (b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). There must therefore be a determination as to whether there are circumstances in this case, apart from any non-service connected conditions and advancing age, which would justify a total rating based on unemployability. See Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). Following a review of the evidence of record, the Board finds that referral of the TDIU claim to the Director of VA Compensation Service for extraschedular consideration is not warranted. In reaching this conclusion, the Board recognizes that the Veteran was found disabled by the Social Security Administration (SSA) as of Apri 2011 due to diabetic and other neuropathy, and retinal detachments and defects. The Veteran is not service-connected for any of these disabilities. As previously discussed, a TDIU is only awarded based upon service-connected disabilities. VA is precluded by law from taking any nonservice-connected disability into consideration. Furthermore, any determination made by the SSA as to the Veteran’s eligibility for SSA disability is not binding on the Board in reaching its determination of whether a TDIU is warranted. See Collier v. Derwinski, 1 Vet. App. 412 (1991); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Moreover, the Veteran has not alleged that he was hospitalized on an inpatient basis due to PTSD, hearing loss, or tinnitus during the appeals period, nor does the record support such a finding. While the Board does not wish to minimize the nature and extent of the Veteran’s overall limitations due to his service-connected disabilities, the preponderance of the evidence does not support a finding that his service-connected disabilities were sufficient to produce unemployability prior to April 7, 2016. While the Board acknowledges that the Veteran has not been working since January 2009, the SSA’s disability determination was as previously discussed, a result of nonservice-connected disabilities. Accordingly, the Board finds that a referral for extraschedular evaluation is not warranted. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K.R.Fletcher, Counsel