Citation Nr: 21071080 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 16-09 759 DATE: November 29, 2021 ORDER Entitlement to a total disability rating due to individual unemployability (TDIU) for the period prior to June 21, 2012 is denied. FINDING OF FACT During the period preceding June 21, 2012, the Veteran's service-connected disabilities did not meet the criteria for a schedular TDIU, and the evidence of record is against a finding that his service-connected disabilities resulted in an inability to obtain or maintain a substantially gainful course of employment. CONCLUSION OF LAW The criteria for entitlement to TDIU for the period prior to June 21, 2012 have not been met. 38 U.S.C. §§ 501, 5107; 38 C.F.R. §§ 3.102, 4.16, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 1969 to November 1970. Previously, in October 2019 and April 2021, the Board of Veterans' Appeals (Board) remanded this appeal for further development. Entitlement to TDIU for the period prior to June 21, 2012 The Veteran seeks a TDIU. He contends that his service-connected disabilities have rendered him unable to work since he was last employed. 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. For the purposes 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, 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. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, 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 (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. Prior to June 21, 2012, the Veteran was in receipt of a 50 percent disability rating for posttraumatic stress disorder (PTSD), a 10 percent disability rating for tinnitus, and a non-compensable disability rating for right ear hearing loss. His combined disability rating for his service-connected psychiatric and audiometric disabilities was 60 percent. 38 C.F.R. § 4.25. These ratings do 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 will refer it to the Director, Compensation Service, if it is shown that he is 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). For the reasons that follow, the Board finds that there is not sufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable by reason of his service-connected disabilities. Therefore, referral of the claim is not warranted. The Veteran was employed doing remodeling and maintenance work from approximately September 1991 to March 2005 according to his successful Social Security Administration (SSA) benefits application. Then, he worked in a related field as a floor layer from March 2005 until July 2007, when he sustained a work injury to his back which resulted in a work injury and compensation through a workman's compensation claim. He was subsequently granted disability by SSA for his back and for hypertension, conditions that are not related to his service. At the August 2010 Compensation and Pension (C&P) examination, the Veteran experienced ringing or humming in his ears that caused him to be unable to hear well. However, he also indicated that there was no functional impairment from this condition. According to the Veteran, these hearing problems began in 1969, and were thus present for the entirety of his long working career. The Veteran's ability to secure and follow a substantially gainful occupation during the period on appeal was impacted by the mental effects of his service-connected PTSD. The evidence during this period is somewhat conflicting. The Veteran reported relatively minimal symptoms in the VA examination reported in August 2010. At a June 2011 C&P examination, he reported a depressed moodas well as problems with his short-term memory that were assessed as causing mild impairment by the examiner. The Veteran discussed that his back hurt all the time and resulted in difficulty sleepingand that he experienced anxiety in large stores or large groups of people, as well as detachment and distrust of people. While the overall examination demonstrated that the Veteran had psychiatric symptoms, it was his pain that caused clinically significant distress or impairment in social and occupational functioning. At an October 2011 VA examination, the examiner indicated that the Veteran's psychiatric condition resulted in Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of an inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran described bad dreams and occasional thoughts of suicide, difficulty sleeping, avoidance of large crowds, paranoia, easily startled, depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, impaired judgment, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances, including work or a worklike setting. This examination resulted in the Veteran being awarded a 50 percent disability rating. In the March 2016 Form 9 (substantive appeal), the Veteran noted that these symptoms were present during his working life and that, although they affected his ability to form effective working relationships and to advance in his career, they did not prevent him from working. Given the forgoing, there is not sufficient evidence to substantiate a reasonable possibility that the Veteran was unemployable by reason of his service-connected disabilities prior to June 21, 2012. As the evidence recounted above demonstrates, the Veteran's psychiatric condition caused significant impairment, but he was able to adapt to it, work, and raise a family. His working life was cut short by an injury to his back that is not service-connected. Significantly, the evidence is not consistent with a finding of a substantial possibility that the Veteran's service-connected disabilities themselves (in the absence of his nonservice-connected back condition) resulted in his unemployability during the relevant period. Accordingly, referral of the claim for a TDIU is not warranted. A TDIU prior to June 21, 2012 is denied. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Steven H. Johnston, 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.