Citation Nr: 21074025 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 18-24 867 DATE: December 14, 2021 ORDER Entitlement to an effective date prior to March 1, 2017, for unspecified depressive disorder is denied. Entitlement to a disability evaluation in excess of 70 percent for unspecified depressive disorder is denied. Entitlement to total disability based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. A January 2013 rating decision denied entitlement to service connection for post-traumatic stress disorder (PTSD); although he submitted a timely notice of disagreement, he did not perfect a substantive appeal following the issuance of a statement of the case in February 2015 and the rating decision became final. The Veteran submitted a new claim for service connection for a personality disorder that was received on March 1, 2017; no document received prior to March 1, 2017, may be construed as a request to reopen a claim for entitlement to service connection for PTSD. 2. At no point during the period on appeal has the Veteran's unspecified depressive disorder been characterized by total occupational and social impairment. 3. The preponderance of the evidence weighs against finding that the Veteran's service-connected disability has precluded him from securing and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date prior to March 1, 2017, for unspecified depressive disorder have not been met. 38 U.S.C. §§ 5101(a), 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.1(p), 3.102, 3.151, 3.155, 3.156, 3.160(c), 3.400, 3.816. 2. The criteria for entitlement to a disability evaluation in excess of 70 percent for unspecified depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9435. 3. The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1976 to October 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). First, the Board will review this matter's somewhat complex procedural history. It initially was before the Board in June 2019, at which time the Board remanded the claims for entitlement to an initial disability rating higher than 50 percent for unspecified depressive disorder, entitlement to TDIU, and an effective date prior to March 1, 2017, for unspecified depressive disorder, including on the basis of clear and unmistakable error (CUE) in a January 2013 rating decision. Notably, the CUE claim was initially raised in 2018 in correspondence from the Veteran and his representative, but the RO had not yet at that time adjudicated the CUE claim in the first instance in a rating decision. The Board directed the RO to undertake various additional development, including obtaining records from the Social Security Administration (SSA), VA treatment records, and new VA examinations and opinions. Subsequently, the RO issued an April 2020 rating decision increasing the Veteran's disability rating for unspecified depressive disorder to 70 percent from September 11, 2019. The same day, the RO issued an April 2020 supplemental statement of the case (SSOC), which denied entitlement to an initial disability rating higher than 50 percent for unspecified depressive disorder, TDIU, and an effective date prior to March 1, 2017, for the award of service connection for unspecific depressive disorder. With respect to the earlier effective date issue, the RO's denial of entitlement to an earlier effective date focused on whether there was CUE in a January 2013 rating decision. Significantly, however, this was the first time the RO had adjudicated whether the revision of the January 2013 rating decision was warranted based on CUE. Following the issuance of the April 2020 rating decision increasing the Veteran's disability evaluation for unspecified depressive disorder from September 11, 2019, the Veteran's representative filed VA Form 20-0996, Request for Higher-Level Review, under the modernized appeal system. In response, the RO issued an October 2020 rating decision in the modernized appeal system that granted a 70 percent rating from March 1, 2017, based on clear and unmistakable error in the May 2017 rating decision granting service connection. The Veteran's representative attempted to file another VA Form 20-0996 in response to the October 2020 rating decision, but was informed in December 2020 correspondence that he had filed his appeal request on the incorrect form. The modernized appeal system, which has different procedural and claims processing rules than the legacy appeal system, is the system put in place following the passage of the Appeals Modernization Act (AMA). Generally, the AMA applies to initial decisions issued on or after February 19, 2019. Here, however, it was improper for the Veteran's representative to request higher-level review (HLR) of the April 2020 rating decision under the modernized appeal system. This is because, although it was issued after February 19, 2019, the April 2020 rating decision that granted a higher rating for a disability subject to a pending legacy appeal is not an initial decision for AMA purposes. To that end, once a claim for an increased rating has been placed in appellate status, the period addressed by subsequent rating decisions granting an increased rating remains part of the pending legacy appeal and cannot be separated by filing a new notice of disagreement. See, e.g., Hamilton v. Brown, 4 Vet. App. 528, 541 (1993); Hudson v. Principi, 3 Vet. App. 467, 468 (1992). Stated differently, the HLR request submitted by the Veteran's representative with respect to the April 2020 rating decision granting a 70 percent rating for unspecified depressive disorder from September 11, 2019, was improper, and the RO should not have accepted it as a valid request for review under the modernized appeal system. As such, the Board will continue to address the issue of an increased rating for unspecified depressive disorder in the legacy appeal system, not the modernized system. However, with respect to the favorable findings made in the October 2020 decision (i.e., entitlement to a 70 percent disability rating from March 1, 2017), the Board is still generally bound by these favorable findings. 38 U.S.C. § 5104A; 38 C.F.R. § 3.104(c). The appeals returned to the Board in May 2021, at which time the Board noted that the RO still had yet to adjudicate the Veteran's claim for revision of the January 2013 rating decision based on CUE in the first instance in a rating decision. To address this procedural defect, the Board remanded the CUE claim in order for the RO to issue a rating decision, as opposed to an SSOC, that considered whether there was CUE in the January 2013 rating decision. The Board also remanded the claims for entitlement to a higher rating for unspecified depressive disorder, TDIU, and an earlier effective date, because a finding of CUE could potentially impact the adjudication of the other claims. The RO was directed to readjudicate these claims following the resolution of the CUE claim. In a September 2021 initial rating decision, the RO determined that there was no CUE in the January 2013 rating decision. The Veteran was notified of this decision in an October 2021 notification letter, which described his rights to appeal the decision. Because the RO was issuing an initial rating decision on or after February 19, 2019, the procedural rules of the modernized appeal system applied. As such, the options for appealing the September 2021 rating decision include filing a supplemental claim, a claim for HLR, or an appeal to the Board. On the same day that the September 2021 initial rating decision was issued, the RO issued a September 2021 SSOC denying entitlement to an initial disability rating in excess of 70 percent for unspecified depressive disorder, entitlement to an effective date prior to March 1, 2017, for service connection for unspecified depressive disorder, and entitlement to TDIU. The SSOC also addressed whether revision of the January 2013 rating decision was warranted due to CUE, but merely to state that he would receive a separate decision on this issue. The claims for an increased rating, an earlier effective date, and TDIU now return to the Board following the issuance of the September 2021 SSOC. Significantly, however, the claim for entitlement to revision of the January 2013 rating decision based on CUE is not currently before the Board. The Board does not have jurisdiction over Cue issues that were decided in an initial rating decision on or after February 19, 2019, and has not been appealed to the Board via VA Form 10182. See 38 C.F.R. § 5019A(e) (providing that a request for revision of a decision based on CUE shall be submitted to the Secretary and decided in the same manner as any other claim). For the Board to address the CUE contentions, all proper appellate steps must thus be taken. At this juncture, however, they have not. However, the Board can still address the other claims on their merits. To that end, the Board can adjudicate a claim seeking an earlier effective date even if a CUE claim is still pending at the RO. The claim seeking revision on the basis of CUE is a completely separate claim for entitlement to an earlier effective date. Phillips v. Brown, 10 Vet. App. 25 (1997) (noting that CUE claim and a claim seeking an earlier effective date are not the same or inextricably intertwined because while the effective date flows directly from the award of service connection, a CUE claim may be brought at any time and is premised upon an error in a prior final RO adjudication). Essentially, even though the Board previously remanded the earlier effective date issue and the CUE issue together as inextricably intertwined, the Board does not have jurisdiction over both claims automatically if only one of the claims has been returned to the Board. As such, the Board will only address whether an earlier effective date is warranted on a non-CUE basis. If he wishes to, the Veteran can appeal the CUE issue currently pending at the RO within one year of the October 2021 notification letter by submitting VA Form 10182 or a request for HLR. As a final matter, the Board notes that the Board previously remanded this matter in order for SSA records and outstanding VA treatment records from beyond January 2018 to be obtained, for the RO to send the Veteran proper notice concerning his claim for TDIU, and for examinations to be scheduled with respect to the severity of his PTSD and whether he was entitled to TDIU. A remand by the Board confers a right to compliance with the directives of that remand. Stegall v. West, 11 Vet. App. 268 (1998). Although substantial compliance with remand directives is required, strict compliance is not. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Here, a careful review of the record indicates that the RO has substantially complied with the Board's remand directives. To that end, it requested and obtained the Veteran's SSA records, associated VA treatment records from up to September 2021 with the claims file, and arranged for the Veteran to undergo a VA examination in September 2019, which discussed the severity of his psychiatric symptomatology, the nature of his educational, vocational, and employment history, and discussed his contentions regarding the impact of his disability upon his employability. As such, no remand is necessary to address noncompliance with the Board's prior remand directives. Earlier Effective Date By way of procedural background, the Veteran filed a claim for PTSD in July 2010. This claim was denied in a January 2013 rating decision, which found that he had no current diagnosis of PTSD. He filed a timely notice of disagreement. Thereafter, the RO issued a statement of the case in February 2015. The Veteran did not appeal this decision to the Board or submit any new and material evidence during the appellate period, hence making the January 2013 rating decision final. He later filed a claim for service connection for a personality disorder that was received on March 1, 2017. In a May 2017 rating decision, the RO granted service connection for unspecified depressive disorder, which had been claimed as a personality disorder and previously claimed as PTSD, from March 1, 2017. The Veteran timely appealed the effective date assigned. Essentially, the Veteran's arguments for an earlier effective date are largely premised on obtaining a revision of the January 2013 rating decision based on CUE, as finding that CUE was present in the January 2013 rating decision that denied service connection for PTSD would effectively push back the effective date for his service-connected mental health condition. As set forth above, however, the CUE issue is not before the Board. As such, the Board will not discuss his arguments regarding why revision of the January 2013 rating decision is warranted due to CUE and will instead focus on whether an earlier effective date is available on some other basis. To that end, the Veteran mentioned in an August 2019 lay statement that he had filed a claim for his mental health condition in 2005 but that he was told that his paperwork had gotten lost. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increased compensation will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5100; 38 C.F.R. § 3.400. If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation. 38 C.F.R. § 3.400(b)(2). Otherwise, it is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. Effective March 24, 2015, VA amended various regulations governing how to file a claim. The amended regulations require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.31(p), 3.151, 3.155). Instead of informal claims, the new regulation provides that a claimant may request an application for benefits, upon receipt of which, the Secretary shall notify the claimant of the information necessary to complete the application form or form prescribed by the Secretary. 38 C.F.R. § 3.155(a). At the time that these amendments were made, VA also deleted a regulation that allowed various documents to be considered informal claims. Notably, prior to the date the amendments became effective, a report of examination or hospitalization could be accepted as an informal claim for benefits in claims for an increased disability rating or to reopen a claim after a final disallowance. See 79 Fed. Reg. 57,660, 57,675 (Sept. 25, 2014) (removing then-current 38 C.F.R. § 3.157(b)). More specifically, 38 C.F.R. § 3.157(b) stated that once a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, receipt of (1) a report of examination or hospitalization by VA or uniformed services, (2) evidence from a private physician or layman, or (3) reports and records from state and other institutions will be accepted as an informal claim for increased benefits or an informal claim to reopen. However, 38 C.F.R. § 3.157(b) only applies to a particular group of claims. See Pacheco v. Gibson, 27 Vet. App. 21 (2014) (en banc) (construing ambiguities contained in 38 C.F.R. § 3.157 as applying to a previous disallowance for a service-connected disability not being compensable in degree, as opposed to a previous disallowance for service connection); Sears v. Principi, 16 Vet. App. 244, 249 (2002) (finding that 38 C.F.R. § 3.157 applies to a defined group of claims, i.e., those claims for which a report of a medical examination or hospitalization is accepted as an informal claim for an increase of a service-connected rating where service connection has already been established). Stated differently, the types of medical records listed in 38 C.F.R. § 3.157(b) are not accepted as informal claims for disabilities where service connection has not been established, since the mere presence of medical evidence does not establish intent on the veteran's part to seek service connection for a condition. See Lalonde v. West, 12 Vet. App. 377, 382 (1999); Brannon v. West, 12 Vet. App. 32, 35 (1998). The Court of Appeals for the Federal Circuit has emphasized that VA has a duty to fully and sympathetically develop a veteran's claim to its optimum, which includes determining all potential claims raised by the evidence and applying all relevant laws and regulations. See Harris v. Shinseki, 704 F.3d 946, 948-49 (Fed. Cir. 2013). However, in determining whether an informal claim has been made, VA is not required to read the minds of the veteran or his representative. Cintron v. West, 13 Vet. App. 251, 259 (1999). Although a benefit sought need not be specific for a written communication to be considered an informal claim, the benefit sought must nonetheless be identified. See Stewart v. Brown, 10 Vet. App. 15, 18 (1997); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Indeed, although VA must interpret a claimant's submission broadly, it is not required to conjure up issues not raised by claimant, nor anticipate any potential claim for a particular benefit where no intention to raise it was expressed. Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). Here, the Board finds that, following the final disallowance of his earlier PTSD claim, VA did not receive any communication that could be construed as a formal or informal claim for a mental health condition or a request to reopen his claim for PTSD until March 1, 2017. The Board acknowledges that post-service medical treatment records reflect treatment for mental health conditions, such as anxiety and depression, prior to filing his claim on March 1, 2017. However, even if the Veteran's VA treatment records reflected treatment for unspecified depressive disorder prior to March 2017, the mere presence of medical evidence does not establish an intent to seek service connection for a disability. It was not until March 2017 that VA received the new claim for service connection for a mental health condition. The Board has considered whether the Veteran submitted a claim in 2005 for his mental health condition that was not previously addressed by the RO. A careful review of the record, however, does not indicate that VA received any documents that express an intent to seek service connection for a mental health condition prior to July 2010, when the initial claim for PTSD was submitted. Ultimately, the Board finds that the earliest effective date permissible by law has already been assigned for unspecified depressive disorder. Increased Rating The Veteran also contends that he is entitled to a 100 percent disability rating for his unspecified depressive disorder throughout the period on appeal. Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that 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. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Where, as here, entitlement to service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are appropriate for an increased rating claim if the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's psychiatric disorder is rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Under the General Rating Formula, a 70 percent disability rating is warranted where the disorder is manifested by 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; speech that is intermittently illogical, obscure, or irrelevant; 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; and an inability to establish and maintain effective relationships. Id. A 100 percent disability rating is warranted when there is a total occupational and social impairment, due to such symptoms as 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 and place; memory loss for names of close relatives, own occupation, or own name. Id. 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, 117 (Fed. Cir. 2013). Symptoms listed in the General Rating Formula serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. They are not intended to constitute an exhaustive list. Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002). In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each piece of evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The evidence suggests that the Veteran has consistently struggled with symptoms such as depression, mild memory loss, impaired impulse control (such as unprovoked irritability with periods of violence), difficulty in adapting to stressful circumstances, and an inability to establish and maintain effective relationships. Although the Veteran has reported to VA examiners that he does not socialize with others, other evidence of record suggests that the Veteran's ability to interact with others or engage socially has not been totally impaired. For example, he reported in a November 2019 VA treatment record that he lived with his son who was in high school and that he had a girlfriend living in Australia who he stayed in touch with on the computer. In a February 2021 VA treatment record, he reported that his son would come over every two to three days to see him. Other evidence suggests that his symptoms, while severe, more closely approximate the criteria for a 70 percent rating. To that end, although he has expressed difficulty controlling his temper and has been involved in physical confrontations with others at points in the past, it cannot be said that the most probative evidence of record demonstrates that he presents a persistent danger of hurting himself or others. See, e.g., August 2021 VA Treatment Records (indicating no verbally or physically abusive behaviors were present); February 2021 VA Treatment Records (same); April 2018 VA Treatment Record (denying behavioral control issues or plans to harm someone else). Moreover, there are no clinical records indicating that he has exhibited the other types of symptoms indicative of a 100 percent rating. The most competent, credible evidence of record does not suggest that he is intermittently unable to perform activities of daily living, exhibits memory loss for names of his close relatives, occupation, or own name, suffers from persistent delusions or hallucinations, has grossly impaired thought processes, displays grossly inappropriate behavior, or is disoriented to time or place. For instance, his April 2017 VA examination indicates that he had a low and sad mood "at times," experienced outbursts of irritability or anger, had problems staying and falling asleep, felt lower self-esteem, experienced crying spells three or four times a week, had a decreased appetite, and reported difficulty concentrating. He reported that he was not close with his family members and that he divorced his wife in 2006, and that he distanced himself from his sons due to concerns about his anger and irritability. He indicated that he had a "couple friends" who he saw "monthly to yearly," but that he does not have many recreational activities he engages in. He reported that he had last worked in 2000 and that he sometimes would have irritable or angry outbursts and conflicts with others while he was working, including physical confrontations. The VA examiner noted symptoms including a depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships. He arrived at the examination appointment on time, well groomed, and casually dressed. He was oriented to all spheres, and his emotional expressions were appropriate to the situation. No thought disorder or other psychotic symptoms were reported or observed, and there were no gross problems with cognition, attention, or memory. He was not observed to be in any acute distress, and he denied having any suicidal or homicidal ideations. Similarly, at his September 2019 VA examination, he endorsed sleep impairments, crying spells, anger, anxiety, and suspicion of others. The September 2019 VA examiner noted symptoms such as a depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, and impaired impulse control, such as unprovoked irritability with periods of violence. Although he reported that he avoided others to "stay out of trouble" and saw no need for relationships, he also indicated that he had some friends and that he would go to family funerals. He was alert, oriented, and had good hygiene. Despite evasiveness while answering questions, he denied suicidal thinking. This evidence regarding the severity of his symptoms is consistent with other evidence of record throughout the appeal period. For instance, throughout this timeframe, the Veteran's VA treatment records are silent for symptoms such as persistent hallucinations or delusions, disorientation to time or place, or the inability to perform activities of daily living. In fact, they generally indicated orientation to all spheres, while delusions or hallucinations, grossly inappropriate behavior, or symptoms of psychosis are generally absent. Moreover, the evidence does not suggest that his ability to socialize with others is completely impaired. Ultimately, the evidence of record indicates that although the Veteran has reported serious psychiatric symptoms, these symptoms are not so severe and frequent to warrant a total disability rating. As such, the Board finds that the preponderance of the evidence shows a disability profile that most closely matches the criteria for a rating of 70 percent throughout the appeal period. The Board also notes that, to the extent that the Veteran has asserted that he is entitled to a 100 percent rating throughout the entire appeal period, prior VA examiners have indicated that he was evasive when answering questions. Moreover, his answers to VA examiners' questions are somewhat inconsistent with his comments to other VA medical personnel. For instance, although he reported to the April 2017 and September 2019 VA examiners that he was not close to his family and did not see his sons, he reported to other VA treatment providers that he sees one son multiple times a week and that his son was going to care for him following a surgery. See August 2021 VA Treatment Record (noting that his son will provide post-surgery care); February 2021 VA Treatment Record (stating that his son visits every two to three days). As such, the probative value of his statements regarding the frequency, severity, and duration of his symptoms is somewhat reduced. Ultimately, the Board finds that the preponderance of the evidence weighs against finding that the criteria for a 100 percent disability evaluation have been met. As such, the benefit-of-the-doubt doctrine does not apply, and a higher disability rating is not warranted. TDIU The Veteran reported during the pendency of this appeal that his mental health condition has prevented him from obtaining and maintaining substantially gainful employment. For instance, he stated in August 2019 that his mental health issues have impacted his life and caused other issues, which have caused his sleep patterns to change and cost him jobs when he was able to work. In a VA 21-8940 submitted in January 2021, he stated that his last full-time employment was in 2004 and that he left his last job due to his mental health condition. VA will grant disability compensation based upon individual unemployability when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining or maintaining "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). A threshold requirement for eligibility for TDIU under 38 C.F.R. § 4.16(a) is that if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Here, the Veteran satisfies the schedular criteria for eligibility for TDIU throughout the entire period on appeal, as he is in receipt of a 70 percent rating for unspecified depressive disorder from March 1, 2017. The chief question for the Board is thus whether the Veteran's service-connected disability precludes him from engaging in substantially gainful employment (i.e., work that is more than marginal, which permits the individual to earn a living wage). See Moore v. Derwinski, 1 Vet. App. 356 (1991). For purposes of analyzing a claim for a TDIU, the Court of Appeals for Veterans Claims has defined "substantially gainful employment" as encompassing both an economic and a noneconomic component. The economic component means "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," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58 (2019). Here, the economic component of Ray has been met throughout the appeal period. To that end, the preponderance of the evidence in the record indicates that the Veteran left his last full-time job in approximately 2001; any work since that time, if any, has been marginal at best. As for the noneconomic component of Ray, however, the Board finds that this component has not been satisfied. In this regard, the Veteran is not vocationally limited to the extent that he has some community college education and a long history of work experience in various settings. Although the Board recognizes that the Veteran's psychiatric disability causes limitations as contemplated by Ray, such as difficulty adapting to stressful circumstances or concentrating, the evidence regarding the extent of these limitations is conflicting. For instance, although the Veteran stated that he left his last job as a printer due to his mental health condition, he told his April 2017 VA examiner that he stopped working for an industrial printing company in 2000 after working for them for two years because of injuries from a car accident. Although he reported to the April 2017 VA examiner that his depressive symptoms had negatively impacted his work performance, such as causing angry outbursts and conflicts with others (including physical confrontations), he also told her that he still completed tasks at work, consistently reported for his job, and was "overly productive" at his last job. He denied missing work or calling out sick due to his unspecified depressive disorder. Similarly, he told the September 2019 VA examiner that his first back surgery stopped him from working, and that although he obtained various certificates related to computers in 2003 or 2004, his back surgeries have interfered with taking computer jobs. The September 2019 VA examiner ultimately opined that the Veteran was able to work for several years until he injured his back. Although he had problems at work due to anger and a lack of concentration, he was nonetheless working before his back injury. The examiner opined that although his functioning at work would be hampered by poor responses to supervision and volatile reactions to coworkers, his anger would not completely prevent him from working. The April 2017 and September 2019 VA examination reports indicate that a non-service-connected back disability, rather than his service-connected psychiatric disability, precluded the Veteran from securing or maintaining substantially gainful employment. This is consistent with various other evidence in the record, including VA treatment records and SSA disability determinations. For instance, in a May 2004 SSA determination, SSA found him to be disabled due to degenerative disc disease and degenerative joint disease. The Board notes that although determinations by SSA are not binding on VA, the underlying records can be probative with respect to a veteran's disability picture, including his ability to work. Here, the Veteran's May 2004 SSA disability determination was supported by various records, including private doctors' notes, VA treatment notes, and questionnaires completed by the Veteran. These records reflect that after he was in a motor vehicle accident in March 2001, he underwent surgery on his back. In December 2001, he was let go from his job because it could not accommodate his functional restrictions due to his back surgery. He testified at an SSA hearing that he continued to have pain in his back with recurring headaches, that he could not stand for long periods, and was unable to sit without shifting positions, which prevented him from working. Similarly, he reported in his SSA disability application that his back surgery was the illness, injury, or condition that limited his ability to work, and that this condition restricted his mobility, balance, and strength. Although he had attempted to return to his job after his injury, he was restricted to an eight-hour workday and could not lift more than 30 pounds, which resulted in his employer firing him. Although his SSA disability determination also noted that he was receiving treatment from VA for symptoms of depression and anxiety, these symptoms were not identified as the reason he was unable to work. Rather, the physical restrictions caused by his back injuries were the reason he was determined to be unable to work. The Veteran's SSA determination is consistent with other VA-generated evidence describing his employment history and employability (i.e., evidence indicating that a non-service-connected disability, as opposed to his service-connected disability, precludes him from finding and maintaining substantially gainful employment). In an August 2003 VA treatment record, for example, the Veteran reported that he had been unemployed due to back problems from car accidents. In a July 2021 VA treatment record, he similarly reported that he quit working in 2001 after a car accident. Moreover, the Veteran reported that he stopped working due to back injuries at his April 2017 and September 2019 VA examinations. Although the Veteran's September 2019 VA examiner suggested that his psychiatric condition would cause certain functional limitations, such as poor responses to supervisors or volatile reactions to others, the VA examiner also opined that these issues would not completely prevent him from working. Indeed, no examiner has found that total occupational impairment exists due to his psychiatric disability. Ultimately, despite the Veteran's assertions that he is entitled to TDIU due to his psychiatric condition, the evidence overwhelmingly suggests that he is unable to find and maintain substantially gainful employment because of a non-service-connected disability. In this regard, his argument that he stopped working due to his psychiatric condition is directly at odds with various other statements he has made throughout the record regarding his employment history, including statements used in support of an SSA disability determination. Although the symptoms of his psychiatric condition would likely cause a certain level of occupational impairment, the most competent, credible evidence of record does not suggest that it would completely preclude him from finding or maintaining substantially gainful employment. In short, when assessing the Veteran's service-connected disability picture as a whole, which includes conflicting evidence regarding mental limitations, the preponderance of the evidence is against an award of TDIU. Rather, the rating assigned for his service-connected psychiatric disability recognizes the level of occupational impairment it causes. The noneconomic component of Ray has thus not been met. Because the preponderance of the evidence weighs against a finding that TDIU is warranted, the benefit-of-the-doubt doctrine is not for application, and the claim for TDIU must be denied. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Rademacher, 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.