Citation Nr: 21068006 Decision Date: 11/08/21 Archive Date: 11/08/21 DOCKET NO. 16-17 059 DATE: November 8, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to January 14, 2021 is denied. FINDING OF FACT Prior to January 14, 2021, there is not sufficient evidence to substantiate a reasonable possibility the Veteran was unemployable by reason of his service-connected disabilities. CONCLUSION OF LAW The criteria for a TDIU prior to January 14, 2021 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1968 to June 1970. The Veteran and his friend testified at a hearing before the undersigned Veterans Law Judge in June 2019. The hearing transcript is associated with the claims file. Entitlement to a TDIU prior to January 14, 2021 The Veteran raised entitlement to a TDIU during his increased rating claims for back and bilateral hearing loss. Therefore, the issue of TDIU was part and parcel of his increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447, 455 (2009). A September 2021 rating decision granted entitlement to TDIU, effective January 14, 2021, the date the Veteran met the schedular criteria for TDIU. As the Veteran's increased rating claims date back to December 15, 2014, the Board must consider TDIU back to this date. See Harper v. Wilkie, 30 Vet. App. 356 (2018). A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, 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. Id. From December 15, 2014 to January 14, 2021, the Veteran was service connected for lumbar spine disability, rated at 20 percent; bilateral hearing loss disability, rated as noncompensable prior to July 3, 2019 and 10 percent thereafter; and tinnitus, rated at 10 percent. Based on the forgoing, the Veteran does not meet the percentage standards set forth in § 4.16(a). Therefore, the Board may not consider his claim for a TDIU in the first instance but can refer it to the Director, Compensation Service (Director), if it is shown that he may be unemployable by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). As described in Ray v. Wilkie, the correct standard for referral is whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." 31 Vet. App. 58, 66 (2019). The Board does not find sufficient evidence to substantiate a reasonable possibility that the Veteran was unemployable by reason of his service-connected disabilities prior to January 14, 2021. Therefore, referral to the Director is not warranted. The Veteran completed some high school. The Veteran's reported work history included convenience store worker, truck driver, meat packing store, and food preparer. A June 2021 Application for Increased Compensation Based on Unemployability reported his back injury prevented him from substantial gainful employment. He reported last working at a convenience store from 2016 to 2018. He reported he became too disabled to work as of June 15, 2018. As of June 15, 2018, a July 2019 private treatment visit reported back pain. The Veteran reported he stopped working due to not being able to lift. At a June 2019 Board hearing, the Veteran reported working at a convenience store and having to change boxes of 60 to 70 pounds of syrup in the soda fountain machines. He reported he could not do the work anymore and his co-workers would get upset because they would have to do his work. He also reported trouble hearing his customers and having to repeat his questions. The Veteran's friend testified when he talks to the Veteran, he has to make sure he is on the right side. He reported the Veteran was not able to do his job as far as the lifting and the embarrassment of not being able to hear the customers. A January 2020 VA examination reported back pain aggravated by bending, walking, standing, lifting, and sitting. He reported he had to stop working due to his back. The clinician opined his lumbar disability impacted his ability to work due to limited lifting of over 20 pounds. At a January 2020 VA examination, the Veteran reported having to quit working at a convenience store because he could not hear what customers were saying. He reported it was difficult hearing in noisy environments and in group situations. The Board does not find sufficient evidence to substantiate a reasonable possibility the Veteran was unemployable by reason of his service-connected disabilities prior to January 14, 2021. Although the Veteran's service-connected disabilities may have negatively impacted his employability, the evidence shows his service-connected disabilities did not preclude substantially gainful employment prior to January 14, 2021. The preponderance of the evidence shows the Veteran's back disability prevented him from performing work that required lifting over 20 pounds. The evidence shows the Veteran's left ear hearing impairment and tinnitus, with proper hearing devices, would not produce work restrictions. See January 2021 VA individual unemployability statement. Considering the Veteran's education and work history, the Board finds his service-connected disabilities would be allow him to perform unskilled work that did not require lifting over 20 pounds, such as a parking lot attendant, ticket taker/seller, or toll collector. Accordingly, referral of the claim is not warranted and TDIU prior to January 14, 2021 is denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Winkler, 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.