Citation Nr: 20056029 Decision Date: 08/25/20 Archive Date: 08/25/20 DOCKET NO. 10-17 125 DATE: August 25, 2020 ORDER Entitlement to service connection for an acquired psychiatric disorder is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to January 10, 2012 is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that an acquired psychiatric disorder began during active service, or is otherwise related to an in-service injury or disease. 2. During the period prior to January 10, 2012, the weight of the evidence shows that the Veteran’s service-connected disabilities did not prevent him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for a TDIU prior to January 10, 2012 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1978 to April 1985. This case comes to the Board of Veterans’ Appeals (Board) on appeal from decisions of the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran testified before the undersigned Veterans Law Judge at a January 2012 hearing; a transcript of the hearing is of record. In March 2013, the Board remanded this case. In an August 2017 decision, in pertinent part, the Board, in pertinent part, granted entitlement to a TDIU from January 10, 2012, and remanded the issues of entitlement to a TDIU prior to that date, and service connection for a psychiatric disorder. The case was subsequently returned to the Board. The Veteran initially requested a Board hearing with regard to the claim of service connection for a psychiatric disorder, but by a statement dated in May 2016, he withdrew his hearing request. 1. Service connection for an acquired psychiatric disorder The Veteran contends that he has a current psychiatric disorder that was incurred in service. In his February 2012 claim, he identified this disorder only as a mental condition. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-elements required to establish service connection are: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Governing law and regulation provide that direct service connection may be granted only when a disability was incurred or aggravated in the line of duty, and not the result of the Veteran’s willful misconduct or abuse of alcohol or drugs. 38 U.S.C. § 105; 38 C.F.R. §§ 3.1 (m), 3.301(d). In Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) held that compensation cannot be awarded pursuant to 38 U.S.C. § 1110 and 38 C.F.R. § 105 (a) either for a primary alcohol/drug abuse disability incurred during service or for any secondary disability that resulted from primary alcohol/drug abuse during service. Id., at 1376. The question for the Board is whether the Veteran has a current psychiatric disorder that began during service or is at least as likely as not related to an in-service injury, event, or disease. Service connection may not be established for a psychiatric condition based on symptoms and functional impairment without a diagnosis conforming to the Diagnostic and Statistical Manual of Mental Disorders (DSM), because VA has expressly limited compensation to disabilities conforming to a DSM diagnosis. See 38 C.F.R. § 4.125; Martinez-Bodon v. Wilkie, 2020 U.S. App. Vet. Claims LEXIS 1523 (August 11, 2020). There is conflicting evidence of record as to whether the Veteran has a current psychiatric disorder with a diagnosis conforming to the DSM. On VA examination in April 2012, the examiner interviewed the Veteran and concluded that he did not have a current diagnosis of a psychiatric disorder under DSM-IV (DSM, 4th edition). Subsequent VA treatment records reflect diagnoses of anxiety disorder not otherwise specified (NOS), benzodiazepine and opioid dependence (see December 2013 VA discharge note), and sedative hypnotic use disorder (see January 2014 VA psychiatry note). The Board concludes that, while the Veteran has current DSM-5 (DSM, 5th edition) diagnoses of anxiety disorder NOS, benzodiazepine and opioid dependence, and sedative hypnotic use disorder, and evidence shows that during service, he complained of symptoms of depression and excessive worry, and was diagnosed with problem drinking and underwent alcohol rehabilitation in service, the preponderance of the evidence weighs against finding that the Veteran’s current diagnosis of anxiety disorder NOS began during service or is otherwise related to an in-service injury, event, or disease. In its August 2017 remand, the Board found that the April 2012 examiner noted an inaccurate history (as the examiner incorrectly stated that the Veteran had never been diagnosed with a psychiatric disorder), and remanded this case for another VA examination and medical opinion. The Veteran subsequently failed to report for the VA examination that was scheduled in connection with his service connection claim. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, without good cause, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655 (b). The Board finds that the examination was necessary to establish entitlement to service connection for a psychiatric disorder, and the Veteran did not provide good cause for his failure to report for the scheduled examination. Turk v. Peake, 21 Vet. App. 565, 569 (2008). Thus, this claim will be adjudicated based on the evidence of record. Service treatment records reflect that the Veteran underwent alcohol rehabilitation for problem drinking in November 1983 after being charged with driving while intoxicated (DWI) in October 1983. He stated that he wanted to get out of the Air Force, his job was driving him crazy and he felt trapped. His current stresses included a DWI. He reported decreased appetite, delayed sleep, and anxiety. On examination, he was fully oriented, had adequate memory, and poor concentration and attention span. The examiner indicated that his mood was depressed, fearful, and angry. The Veteran reported having hallucinations as well as fleeting thoughts of hurting people. The diagnosis was that he was an angry man. A January 1984 treatment note reflects that the Veteran complained of low back pain, and said his job tension was not really severe, but when he was tense, he had tight back muscles. The diagnostic assessment was that he might have a tension contribution. He was referred for a mental health evaluation for possible relaxation therapy. In February 1984, a mental status examination was within normal limits, he had no thought disorder, and he was anxious and verbal. The diagnostic assessment was atypical personality traits. In a March 1984 report of medical history, the Veteran reported a history of frequent trouble sleeping, and depression or excessive worry. The reviewing examiner noted that his frequent trouble sleeping was associated with stress and tension. His excessive worry was associated with personal problems, and he took no medication for this. He had been treated with stress management counseling with good results, and there was no current disability or sequelae. On March 1984 mental health consult, a mental status examination was within normal limits, and no disorders of thought, perception or cognition were evident. He was anxious and cooperative, recent and remote memory were intact, and he was not a danger to self or others. Psychological test data presented a picture of an individual with above average intellectual abilities. The Minnesota Multiphasic Personality Inventory (MMPI) results showed he was remarkably healthy and did not support a finding of secondary gain or malingering. The assessment was low back pain. A psychiatric disorder was not diagnosed. A May 1984 medical evaluation board (MEB) report reflects that the Veteran had low back, shoulder and neck pain. The examiner noted that the Veteran had been under considerable stress because of an alcohol-related incident in October 1983. It was noted that he had multiple disciplinary actions due to excessive alcohol use. He completed rehabilitation but still drank alcohol, and did not feel it was a problem. On medical examination for the MEB, the Veteran's psychiatric system was clinically normal. The Veteran completed alcohol rehabilitation in June 1984. In October 1984, it was noted that the MEB/PEB action had been completed and he was returned to duty. In January 1985, the Veteran was diagnosed with chronic low back pain with possible depressive overlay. Elavil was prescribed. A week later, the Veteran reported increased alcohol intake to control his pain. He was strongly encouraged to avoid alcohol, and diagnosed with chronic back pain. Subsequent service treatment records are negative for a diagnosis of a psychiatric disorder. On VA general medical examination in July 1985, the examiner found no evidence of any psychiatric or personality disorders. VA and private treatment records show the Veteran was not diagnosed with anxiety disorder until December 2013, decades after his separation from service. The Veteran has never reported having continuous symptoms of a psychiatric disorder or psychosis since service, and the evidence does not reflect such. The first post-service diagnosis of a psychiatric disorder is dated in 1988. An October 1988 VA discharge summary reflects that the Veteran was seen for low back pain and reportedly had prior hospitalizations for manic disorder and multiple substance and alcohol abuse. He reported the use of cocaine for pain. A January 1989 discharge summary reflects that he reported one prior admission for bipolar disorder the previous year, and had no prior psychiatric history. He admitted abusing cocaine. The Axis I diagnoses were multiple substance abuse and bipolar disorder. In September 1992, it was noted that he had a history of bipolar disorder, multiple substance abuse and history of non-compliance with medications. He was diagnosed with bipolar disorder and alcohol abuse. Subsequent VA medical records reflect treatment for longstanding substance abuse. In November 2003, the Veteran reported that he used cocaine in service, but not currently. A psychiatric disorder was not diagnosed. The assessment was low back pain, smoking, and history of drug use. An October 2008 VA social work note reflects that the Veteran reported that he previously saw a psychiatrist when he got out of jail and was diagnosed with bipolar disorder, but he was actually using cocaine and not bipolar. He denied current psychotic symptoms or depressed mood. He reported that he lost his driver’s license due to a recent conviction of driving under the influence (DUI). He previously worked in refrigeration and air-conditioning for ten years, but got a DUI and could not drive to work any longer. He was slurring his words in the interview, which he attributed to his pain medication. The social worker stated that the Veteran did not endorse any mental health conditions, but he had a substance abuse history and might be abusing his pain medications. A psychiatric disorder was not diagnosed. A December 2008 VA neurology clinic note reflects that the Veteran had a history of multiple substance abuse (alcohol, marijuana, cocaine, Xanax, and opiates by mouth). The Veteran reported that he had used cocaine and marijuana since 1985, but last used cocaine two years ago. He was diagnosed with seizure disorder and peripheral neuropathy. A private medical evaluation was performed by Dr. H. for the Social Security Administration (SSA) in July 2009. A mental status examination was performed, and a psychiatric disorder was not diagnosed. A March 2010 VA initial social worker consult reflects that the Veteran complained of seizures, memory problems, headaches, chronic pain in the neck, shoulders, back and knees, smoking, substance abuse, and underemployment. The diagnosis was adjustment disorder with mixed anxiety and depression. He was referred for a psychiatric appointment. A private medical evaluation was performed by Dr. S. on January 10, 2012. He noted that the Veteran had no history of anger, irritability, anxiety or depression, and had a history of substance abuse. Dr. S. diagnosed several medical conditions but did not diagnose a psychiatric disorder. On VA examination in April 2012, the Veteran reported that he was seen for complaints of a depressed mood by a VA social worker in 2010, and was referred to the psychiatric clinic but never went to the appointment. He denied any current psychiatric complaints. He reported receiving two DUIs after service. The examiner stated that the Veteran did not have a current diagnosable psychiatric disorder, and therefore his complaint of depression or excessive worry in 1984 did not connect to any present psychiatric disorder. VA psychiatry notes dated in December 2013 reflects that the Veteran requested inpatient treatment for detoxification from Xanax. On admission, the assessment was anxiety disorder not otherwise specified (NOS), and anxiolytic /hypnotic use disorder. During the hospitalization he was treated for withdrawal symptoms. The discharge diagnoses were anxiety disorder NOS, and benzo and opioid dependence. In January 2014, he was diagnosed with sedative hypnotic use disorder, recently detoxed from Xanax. It was noted that all prior hospitalizations were for detoxification. The Veteran reported that since being off of Xanax, he had not had any issues with anxiety or sleep. At a May 2015 VA traumatic brain injury (TBI) examination, the examiner noted that the Veteran had a history of disorganized thoughts with drug abuse. VA neurology treatment notes attributed his seizures to benzodiazepine/opiate overdose versus withdrawal, which also precipitated episodes of altered mental status. He had also been followed by the psychiatry service which also did not attribute his issues to head trauma but more likely to substance issues. The examiner opined that the Veteran had multi-factorial issues leading to behavior and mentation impairments, including substance abuse, and psychiatric disorders, a question of a previous brain cyst, and seizure disorders, and the emotional and behavioral signs he currently exhibited were more likely part of a co-morbid mental disorder. There is no competent evidence linking the current anxiety disorder, or the prior adjustment disorder, to service, and a current psychiatric disorder was not diagnosed on VA examination in April 2012. Although the Veteran was diagnosed with bipolar disorder in the late 1980s and early 1990s, subsequent medical records do not reflect this diagnosis. Finally, the medical records reflect that the Veteran has had a longstanding substance use disorder during and after service. The Veteran believes his psychiatric disorder is related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the medical evidence. In sum, there is no competent evidence of record establishing that the Veteran’s current anxiety disorder arose during service or that such condition is etiologically related to service. Moreover, disabilities resulting from a person’s own misconduct, including abuse of alcohol or drugs, are not disabilities for which compensation is payable, and service connection is not warranted for benzodiazepine and opioid dependence, or sedative hypnotic use disorder. See 38 U.S.C. § 105; 38 C.F.R. §§ 3.1 (m), 3.301(d). Finally, the Veteran has never been diagnosed with a psychosis and a psychosis was not manifested within the first post-service year. Accordingly, the preponderance of the competent and probative evidence is against the Veteran’s claim, and service connection is denied. 2. Entitlement to a TDIU prior to January 10, 2012 The Veteran contends that he is unable to maintain substantially gainful employment due to his service-connected disabilities. In January 2012, his former representative contended that the Veteran's service-connected disabilities have prevented gainful and substantial employment since 2006. The Board previously granted entitlement to a TDIU on a schedular basis under 38 C.F.R. § 4.16 (a) from January 10, 2012, and remanded the issue of a TDIU prior to that date. The issue currently before the Board is entitlement to a TDIU prior to January 10, 2012. A request for a TDIU, whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of the Veteran's October 2008 claim for an increased rating for the service-connected lumbosacral spine disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). At a December 2008 VA spine examination, the Veteran reported that he had been unemployed for the last one and one-half years. He was an air-conditioner and refrigeration technician until then, but had been out of work and having difficulty maintaining work because he could not drive due to a DUI. He stated that his low back disability was worse. The examiner diagnosed degenerative disc disease with herniated discs and degenerative spondyloarthritis. 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 substantially 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. Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. Id; 38 C.F.R. § 4.19. In reaching such a determination, 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). The law provides that a total disability rating may be assigned where the schedular rating is less than total when the 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 disability 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). Even where these percentage requirements are not met, as in this case, the Veteran can show entitlement to a TDIU on an extraschedular basis under 38 C.F.R. § 4.16 (b) if he is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. Prior to January 10, 2012, the Veteran’s service-connected disabilities were lumbosacral disc disease (20 percent), cervical spine pain and tenderness (20 percent), recurrent right shoulder dislocation (10 percent), radiculopathy of the left lower extremity (10 percent), radiculopathy of the right lower extremity (10 percent), and right ear hearing loss (0 percent), with a combined disability evaluation of 60 percent from July 1, 2009. The criteria for a TDIU on a schedular basis are not met prior to January 10, 2012. 38 C.F.R. § 4.16 (a). The Board cannot consider entitlement to TDIU under 38 C.F.R. § 4.16 (b) in the first instance, but must first remand the claim for referral to VA’s Director of Compensation Service if such consideration is warranted. As discussed below, the Board has done so, the claim has been referred, the Director has considered the matter, and the claim is now back before the Board. In his July 2016 Veteran’s Application for Increased Compensation Based on Unemployability (VA Form 21-8940), the Veteran stated that his disability affected full-time employment on January 21, 2006, he became too disabled to work on that date, and he last worked full-time on that date. He reported working as a refrigeration technician from December 1998 to July 2005, and as a service technician from August 2005 to August 2006, and worked 70-80 hours per week in each job. He stated that he left his last job due to disability. He said his service-connected back, shoulder, and neck disabilities prevented him from securing or following any substantially gainful occupation. He completed one year of college, and graduated from a 14-month air conditioning and refrigeration training in 1998. VA medical records reflect treatment for substance abuse, seizures, and pain in the back, neck, shoulders, and knees. A February 2007 primary care note reflects that he reported that he was an air-conditioning technician by trade and was let go one year ago. He complained of low back pain. An October 2008 VA social work note reflects that the Veteran reported that he lost his driver’s license due to a recent DUI conviction. He previously worked in refrigeration and air-conditioning for ten years, but got a DUI and could not drive to work any longer. He was slurring his words in the interview, which he attributed to his pain medication. The social worker stated that the Veteran had a substance abuse history and might be abusing his pain medications. The Veteran stated that he was unable to work due to his back problems, and he could no longer work in the refrigeration and air-conditioning business as he had no driver’s license because of a recent DUI. He said he was trying to sell roses but could not make any money. VA vocational rehabilitation and employment (VRE) records reflect that the Veteran applied for services in October 2008, stating that he could no longer perform his highly physical work duties as an air-conditioning and refrigeration technician because the pain became too much to handle. He stated that he worked in this profession from 1997-2005, 70-80 hours per week. He said he needed pain pills to perform his job. His case was closed in December 2008 after he failed to report for his appointment or respond to calls. A December 2008 VA neurology clinic note reflects that the Veteran was seen for seizures. The Veteran reported that his first seizure was three years ago, while he was driving a truck, and had a motor vehicle accident. The Veteran had a history of multiple substance abuse (alcohol, marijuana, cocaine, Xanax, and opiates by mouth). The diagnosis was seizure disorder and peripheral neuropathy. A July 2009 medical evaluation by Dr. H. for SSA reflects that the Veteran complained of pain in the neck, back, knees, and shoulders, and seizures since 2006. The diagnostic impression was chronic neck and back pain, and seizure disorder. He had limitations in lifting, pushing, and pulling, and no limitations in walking, stooping or climbing. A February 2010 VA examination of the cervical spine and right shoulder reflects that the Veteran reported that he had been unemployed for two to five years due to medical problems and musculoskeletal conditions. The examiner opined that the cervical spine and right shoulder disabilities had significant effects on his usual occupation, and caused difficulty in lifting and carrying, reaching, overhead activities, throwing, lack of stamina, weakness, and pain. A March 2010 VA initial social worker consult reflects that the Veteran complained of seizures, memory problems, headaches, chronic pain in the neck, shoulders, back and knees, smoking, substance abuse, and underemployment. The Veteran did not want to talk about what type of work he was doing. An August 2010 VA neurology consult reflects that the Veteran was seen for seizures. He reported that he was not working, but was looking for a job. The assessment was history of seizure disorder, seizure-free for one and one-half years, controlled on Dilantin. A March 2011 VA primary care note reflects that the Veteran complained of chronic pain in the right shoulder, neck and low back. He said he was not working because he had enough problems. SSA records reflect that SSA determined that the Veteran became disabled on February 26, 2011, due to a primary diagnosis of a back disorder (disc/degenerative), and a secondary diagnosis of other unspecified arthropathy. The Veteran's prior jobs included refrigeration tech from December 1997 to July 2005, and service technician from August 2005 to January 2006. He previously worked as a cook in the 1990s. The Veteran contended that the following disabilities impaired his ability to work: low back pain, chest pain, a cognitive disorder, trauma of the head, right shoulder, neck and knees, right eye blindness, and seizure disorder. The SSA determined that the Veteran had impairment from a spine disorder, dysfunction of major joints, and cataracts. The SSA determined that the Veteran had exertional limitations of occasionally lifting 20 pounds, frequently lifting 10 pounds, standing and/or walking for 4 hours, sitting for about 6 hours in an 8-hour workday, and unlimited pushing and/or pulling, other than noted above. He had postural limitations: occasionally with climbing stairs and ladders and stooping, and frequently with balancing, kneeling, and crawling. He had occasional limitations on reaching overhead on the right. SSA determined that he had maximum sustained work capability for sedentary work. In a January 10, 2012 private medical evaluation, Dr. A.S. noted that the Veteran reported that he was no longer able to work since 2008. Dr. S. diagnosed chronic cervical and lumbosacral pain secondary to spondylosis and disc disease, acromioclavicular separation of the right shoulder, medial and ulnar neuropathy of the right upper extremity, right lower extremity radiculopathy, history of seizure disorder since 2008, bilateral hearing loss, and history of urethral stricture. He opined that as a result of his residual functional limitations secondary to service-connected conditions including the service-connected cervical and lumbosacral pain and right radiculopathy, he was considered less than sedentary and established that he was unemployable. In a February 2012 private vocational assessment, J.S., a vocational rehabilitation consultant, opined that the Veteran was entitled to a TDIU from January 1, 2006 due to his symptoms and functional impairment from service-connected chronic back, neck and shoulder conditions. An April 2012 VA mental disorders examination, the Veteran reported that after service, he worked as a cook for several restaurants, then in air-conditioning repair for 12 years. He stopped working in 2008 due to physical problems including seizures. An April 2015 VA neurological examination noted that tonic-clonic seizures were diagnosed in 2008, and he had stopped taking his Xanax two days prior to that seizure. The examiner opined that the Veteran's extensive history of multi-substance abuse with alcohol and benzodiazepine withdrawal were possible causes of the seizures. An April 2015 VA spine examination reflects that the examiner opined that the Veteran's back disability did not impact his ability to work and did not render him unable to pursue sedentary employment. On April 2015 VA examination of the cervical spine and right shoulder, the examiner opined that the Veteran’s shoulder condition did not preclude him from pursuing any type of sedentary employment, but high intensity, high weight occupations with weightlifting at the shoulder level may be difficult. A May 2015 VA TBI examination reflects that the Veteran reported that he had seizures since 2006. The examiner noted that treatment records attributed his seizures to benzodiazepine/opiate overdose versus withdrawal. In July 2018, the VBA Director rendered a negative opinion as to consideration of a TDIU on an extraschedular basis. The Director found that prior to January 10, 2012, service connection had been established for six conditions. The combined evaluation for compensation was 60 percent effective July 1, 2009. The Veteran stated that he stopped working in 2006. Multiple medical treatment reports reveal that the Veteran reported that he stopped working in 2006 after receiving a DUI. He stated he could no longer drive and had to stop working as he was unable to get to his job without a driver’s license. The Director concluded that a review of all available evidence does not show that the Veteran’s service-connected conditions prevented all work prior to January 10, 2012. None of the available objective medical evidence supports the Veteran’s contention that any of the service connected disabilities or a combination of the effects of the disabilities prevented all types of gainful activity prior to January 10, 2012, and entitlement to TDIU benefits on an extraschedular basis prior to January 10, 2012 was not established. Whether a service-connected disability or disabilities render a Veteran unemployable is a legal determination for adjudicators to make rather than a medical question to be answered by health care professionals. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (“[A]pplicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner”). To receive a TDIU, the Veteran’s service-connected disabilities, alone, must be sufficiently severe to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Court clarified in Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), that the disability rating, itself, is recognition that industrial capabilities are impaired. The mere fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to the veteran’s history, education, skill, and training, whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations, and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Upon review of the record, the Board finds that the preponderance of the evidence does not show that the Veteran’s service-connected disabilities alone have rendered him unable to secure or follow a substantially gainful occupation during the rating period prior to January 10, 2012. The evidence shows that the Veteran has completed one year of college, and had varied work experience as a cook and air-conditioning and refrigeration technician. See the Veteran's VA Form 21-8940 and SSA records. The Veteran has made conflicting statements over the years as to the reason and date he stopped working, which reduces the credibility of his statements. His statements made to treatment providers in 2008 indicate that he lost his job after losing his driver’s license after a DUI. Extensive medical evidence indicates a longstanding history of substance abuse, and occupational impairment from non-service-connected seizures, anxiety disorder, bilateral knee disabilities, and medial and ulnar neuropathy of the right upper extremity. In March 2010, the Veteran reported that he was working, but did not want to identify the kind of work. Although the February 2012 vocational consultant, J.S. opined that the Veteran was entitled to a TDIU from January 1, 2006 due to his symptoms and functional impairment from service-connected chronic back, neck and shoulder conditions, she did not discuss the occupational impairment from non-service-connected conditions, or the fact that he stopped working due to a DUI, and had subsequent employment afterward, which reduces the probative value of her opinion. The VA medical opinions regarding the functional effects of the Veteran’s service-connected disabilities are highly probative, and weigh against the claim. The preponderance of the evidence shows that the Veteran has significant non-service-connected physical and psychiatric disabilities which impair his ability to work. The Board concludes that the findings during VA and private treatment and examination to be more probative than the lay statements by the Veteran regarding the effect of his service-connected disabilities on his occupational functioning. Moreover, the Veteran has also reported significant occupational impairment from non-service-connected disabilities, as shown in the SSA records. The record reflects that during the period prior to January 10, 2012, he had exertional limitations of occasionally lifting 20 pounds, frequently lifting 10 pounds, standing and/or walking for 4 hours, sitting for about 6 hours in an 8-hour workday, and unlimited pushing and/or pulling, other than noted above. He had no non-exertional limitations due to service-connected disabilities. The most probative evidence of record does not show that the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities alone. The claim for entitlement to a TDIU is denied. 38 C.F.R. § 4.16 (b). (Continued on the next page)   In reaching the above conclusions, 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, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. L. Wasser, 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.