Citation Nr: 21075379 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 16-60 649 DATE: December 20, 2021 ORDER Entitlement to a total disability rating due to individual unemployability (TDIU) prior to April 28, 2017 is denied. FINDING OF FACT Prior to April 28, 2017, the Veteran's service-connected disabilities did not meet the prerequisite disability ratings for a schedular total disability rating, and the preponderance of the evidence is against a finding that his service-connected disabilities rendered him incapable of obtaining or maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU prior to April 28, 2017 have not been met. 38 U.S.C. § 501; 38 C.F.R. §§ 3.102, 4.16, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active service from February 1988 to 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in June 2016. During the current appeal, and specifically in September 2019, the Veteran testified at a hearing before a Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims file. The VLJ who held that hearing is no longer available to participate in the decision. The Veteran was informed of that fact and given the opportunity to have a hearing with another VLJ in a January 2021 letter. No response to that letter was received. In July 2021, the Board remanded the matter for further development. The Veteran seeks a TDIU prior to April 28, 2017. He contends that his service-connected disabilities caused him to be unable to continue gainfully working. 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 April 28, 2017, the Veteran had the following service-connected disabilities: posttraumatic stress disorder (PTSD) rated 30 percent disabling prior to January 21, 2016, and 50 percent disabling from that date; tinnitus rated 10 percent disabling for the entirety of the relevant period; and 3 disabilities (post-operative inguinal hernia, residuals of the right middle distal phalanx injury, and right ear hearing loss) all rated non-compensable. His combined disability rating during this period is 40 percent (prior to January 21, 2016) or 60 percent (from that date). 38 C.F.R. § 4.25. These ratings did not meet the percentage standards set forth in § 4.16(a). Thus, 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 prior to April 28, 2017, and referral of the claim is, therefore, not warranted. His VA treatment records and other records do not contain substantial complaints regarding his noncompensable service-connected disabilities or his tinnitus. In fact, at the June 2016 VA examination, he indicated that his tinnitus was not significantly bothersome. Thus, the Board will focus primarily on the psychiatric condition which was his most significant service-connected disability rating during the relevant period. The Veteran's submissions both to the Social Security Administration (SSA) and to this agency indicate that he last worked in May 2015. The bulk of his treatment records indicate that it was primarily his back condition that resulted in his inability to work. VA treatment records in September 2015 indicate this was the Veteran's own explanation of the reason for his inability to work. VA treatment records from March 2016 indicate a medical assessment that the Veteran was not a candidate for any employment given the degree of damage to his back. The June 2016 psychiatric examination recounts that the Veteran reported that he last worked in May 2015 and stopped working due neck, back, and knee problems. The SSA determined that the Veteran was unable to work primarily on the basis of his back condition, and he testified at his September 2019 hearing that the combination of his physical and psychological conditions rendered him unemployable. The Board is mindful that there is some evidence that the Veteran's psychiatric condition had an effect on his employment. At the same June 2016 examination where the Veteran indicated that it was his back problems that forced him out of the work force, he also described his increasing anxiety and panic attacks. However, during the period prior to April 28, 2017, even where his psychological condition was acknowledged as a contributor to his disability from working, it was acknowledged as one factor along with his back condition. For instance, an August 2015 VA treatment record documents that he was unable to work due to his "anxiety, pain level, and condition of his spine." There is also evidence that not working resulted in increasing severity of the Veteran's psychological condition, as attested to by the increasing compensation across the various stages of the appeal period for this condition. In the year prior to his claim for an increased rating in January 2016, his psychiatric condition was rated 30 percent disabling, increased to 50 percent in January 2016 based on evidence of increasing frequency of panic attacks and other symptoms in the VA examination conducted in conjunction with his claim, and 70 percent beginning April 28, 2017, as a result of the evidence in a subsequent examination. The June 2016 examination is illustrative of the Veteran's condition during the relevant period. In that examination, the Veteran was found to have occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, while generally functioning satisfactorily with normal routine behavior, self-care, and conversation. His report regarding his occupational functioning to the examiner generally occurred with this assessment, indicating that, although it was difficult for him to get along with the people he worked with, he was generally reliable and productive as an employee until he could no longer work physically. Essentially, the evidence reflects that, although he had psychiatric symptoms that impacted his working and social functioning, in the absence of his nonservice-connected back disability, he was able to adapt to and manage those symptoms. Given the forgoing, there is not sufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable by reason of his service-connected disabilities prior to April 28, 2017. The preponderance of the evidence indicates that the Veteran was capable of doing the mental and physical aspects of working through May 2015, but that his nonservice-connected physical back, neck, and knee disabilities rendered him unable to work, or were a significant aspect of rendering him unemployable. In any event, it was not his service-connected disabilities alone that rendered him unemployable. Accordingly, referral of the claim for a TDIU prior to April 28, 2017 is not warranted. As his service-connected disabilities did not render him unable to secure or maintain substantially gainful employment prior to April 28, 2017, a TDIU during that period of time 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.