Citation Nr: 21008380 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 00-22 560A DATE: February 16, 2021 ORDER A total disability rating due to individual unemployability from January 9, 2006, is granted. A total disability rating due to individual unemployability before January 9, 2006, is denied. FINDINGS OF FACT 1. For the period from January 9, 2006, the evidence establishes that the Veteran’s service-connected disabilities have created functional impairment rendering him unable to secure or maintain substantially gainful employment. 2. For the period before January 9, 2006, the evidence is insufficient to establish that the Veteran’s service-connected disabilities alone rendered him unable to secure or maintain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a total disability rating due to individual unemployability from January 9, 2006, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 4.15, 4.16(a). 2. The criteria for a total disability rating due to individual unemployability for the period before January 9, 2006, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 4.15, 4.16(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1978 to October 1979. The claim comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2000 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter has a long procedural history, including many Board remands. The Board’s July 2015 decision found that the Veteran’s claim for a total disability rating due to individual unemployability (henceforth “TDIU”) was inextricably intertwined with a claim for service connection for PTSD that was contemporaneously remanded by the Board at that time. Following the Board’s most recent March 2019 decision, in August 2020 the RO granted the Veteran’s claim for service connection for PTSD. The grant was full relief regarding that claim, and therefore the claim is no longer before the Board. In turn, with the service-connection claim having been decided, the Veteran’s TDIU claim is now in a position to be adjudicated on the merits. Regarding the TDIU claim, the Veteran recently testified at a December 2020 Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. A TDIU may be assigned if the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To be considered for assignment of a schedular TDIU, the Veteran’s service-connected disabilities must meet the following criteria: (1) if there is only one such disability, this disability shall be ratable at 60 percent or more; or (2) if there are two or more such 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. In this case, a March 2018 rating decision granted a TDIU from August 25, 2015, and therefore the issue before the Board is entitlement to a TDIU before this date. See Harper v. Wilkie, 30 Vet. App. 356, 361 (2018). For the period before August 25, 2015, the Veteran’s service-connected disabilities include PTSD, rated at 70 percent from the effective date of January 9, 2006; a low back disability, rated at 40 percent throughout the appeal period; radiculopathy of the sciatic nerve of the bilateral lower extremities, each rated noncompensable from the effective date of November 30, 2007, at 10 percent from December 9, 2010, and at 20 percent from November 1, 2011, to present; an additional rating for radiculopathy of the femoral nerve of the bilateral lower extremities, each rated at 20 percent from August 25, 2015; and bilateral hip arthritis, rated at 10 percent from September 11, 2002. Thus, the first criterion under 38 C.F.R. § 4.16(a) is satisfied from January 9, 2006. Below, the periods from January 9, 2006, and before January 9, 2006, will be addressed separately. A Veteran is unemployable if he is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). A substantially gainful occupation is one 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. Ray v. Wilkie, 31 Vet. App. 58, 72–73 (2019). In evaluating a Veteran’s ability to secure and follow a substantially gainful occupation, consideration may be given to his level of education, skills and training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities. Id.; 38 C.F.R. §§ 3.341, 4.16, 4.19. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran has the physical and mental ability to perform the types of activities required by the occupation at issue, not whether the Veteran can find employment. Id.; 38 C.F.R. § 4.16(a). Turning to the evidence, in his November 1999 claim for a TDIU the Veteran indicated that he last worked full-time from 1986 until 1991 at US Customs, with a main duty of inspecting, people, vehicles, and property. Following a work injury at that job in 1991, he medically retired the same year and has not worked a full-time job since. He was receiving disability benefits from the Social Security Administration and benefits in connection with the US Customs job. In 1994 the Veteran enrolled in law school and was awarded a juris doctorate degree in 1997. He took the bar examination four times but was not able to pass. Both in law school and for the bar examination he was granted accommodations for his disabilities. The Veteran also has a four-year college degree. A record of the September 1991 work injury stated that “while at work today he was climbing up stairs when left knee gave out and he fell[,] landing on both knees. . . . Patient complains of left knee and lower back pain.” Treatment notes from that month and the following month show the Veteran’s doctor placed him on restricted work duty, including “light duty” and “sedentary work,” though after several weeks the Veteran still had “difficulty [with his] back at work.” In a November 1991 letter from Dr DC, it was noted that since the work injury, the Veteran “has burning pain into both legs, back pain, [and] knees become sore and swollen.” Two years later, in July 1993, Dr DC wrote another letter, diagnosing “mild mechanical back pain with no objective abnormal findings on MRI scan.” Regarding the Veteran’s job at US Customs, Dc DC stated that “the [Veteran’s] back in part[,] and knees and ankles[,] make it difficult for him to do the required walking of his previous job. . . . I believe that the patient would note a subjective increase in his symptoms if he returned to work. . . It is unlikely that the patient would suffer significant injury or harm to his back if he were to continue to work. (There are no objective findings.) . . . I believe that with respect to the patient’s back, he would be able to return to work, that is, his usual job. As previously noted, the patient has no objective significant findings of significant low back condition, other than perhaps some flattening of his lumbar lordosis which the radiologist thought could be consistent with muscle spasm.” Of record is the Veteran’s July 1993 statement of disability for federal retirement purposes. He wrote, “I strongly believe that my performance will be way below set standards[,] and also due to the various ailments and medical conditions that require doctors visits in a very repetitious manner[,] my conduct at work will be less than desirable.” Under the section for medical conditions interfering with work performance, the Veteran listed “bilateral knee problems and chronic neck and back pain with disc space narrowing at the C5-6 level.” He explained, “Due to these conditions I cannot put too much stress on my everyday life such as prolonged walking or standing, prolonged reading or writing, as well as sitting in front of a computer or doing other manual tasks in front of me with my hands.” He added that when his pain flares up, he “cannot think clear or act rational” and “sometimes will say something way out of order which my mind thinks it’s right but it will come out of my mouth very distorted than the original thought.” The Veteran indicated that he had not returned to work for long enough to see if his employer could implement accommodations. In his November 1999 claim for a TDIU, the Veteran wrote, “I feel that I am unable to do physical work as well as any other gainful employment. The main reason that I have not been able to pass the [bar examination] is because of my back pain interference.” He indicated he had not tried to obtain other employment since leaving US Customs in 1991. At a June 2000 VA examination, the examiner noted that the Veteran “allegedly has attention deficit disorder, which was previously diagnosed and to some extent was based on his ability to pass the legal bar examination in Nevada.” An April 2001 private medical report by Dr JMCP reviewed all of the Veteran’s limitations, which he listed as “attention deficits and endocrine dysfunctions,” neck and upper extremities conditions, low back and lower extremities conditions, and bilateral knees conditions. Based on the combination of all these conditions, Dr JMCP opined that the Veteran “should be considered totally permanently disabled from gainful employment.” In June 2002, another VA examination was provided. The Veteran reported that when he worked at US Customs “he was on heavy pain medications, and this is what allowed him to function. Eventually he had to stop his work, however, because of low back pain.” He further “states that he is now unable to do any type of physical work and he has since . . . gotten his law degree. . . . However, he states that because of the combination of his difficulty with attention deficit as well as with the discomfort caused by his cervical and lumbar spine problems, he is unable to concentrate for long enough time to pass the bar exam. . . . He says that he was able to get through law school because they made special accommodations for him due to his disabilities.” In November 2002, the Veteran submitted a statement that “All in all, [the service connected disabilities] put me in a position that prevents me from performing gainful employment. . . . In the past I have tried to take the bar (3 times in last 3 years) but have failed due to attention deficit disorder, which I was told is caused by the many combined medical problems.” At a March 2004 hearing, the Veteran described that during his years working at US Customs he was rotating through different medications for his back, and “it came to a point where I couldn’t perform my duties without exposing other people to risk because of my disability, not being able to fully perform what I was supposed to do.” He also stated, “I left because I couldn’t take the physical strain of the job, based on my back problems, my medical condition.” In his daily life at that time, the Veteran described being unable to do most household chores, as anything involving moving his hands would cause pain, adding that his “hands are getting kind of stiff, too, because of arthritis.” He estimated that two to three days a week were a “good day” on which he could walk five or six blocks; on bad days, he could only walk one block. When asked whether there was any type of work he felt he could do, he replied, “I feel that at this point in time it’s a combination of everything that I’ve been having. I went back to law school, that’s one of the reasons I thought maybe I could do that. It seems that that’s not possible anymore because of my different problems. I’m also being seen by a psychiatrist up at VA hospital because of my anxiety and panic attacks. On top of my physical pain, it’s giving me some other problems. . . . When I took the bar this last July, I was in so much pain, my nerves were . . . wrecked.” At a July 12, 2006 VA examination for the hips, the Veteran reported pain in both hips, especially when using stairs. X-rays showed mild early degenerative joint disease. In January 2010, a clinician reviewed the Veteran’s entire file and medical history to consider the effect of his back disability on his employability. The clinician opined that it was not likely that the Veteran’s back condition alone was of such a severity as to preclude gainful employment, based on the Veteran’s “relatively normal physical examination with small losses in range of motion secondary to pain. . . . Otherwise, his radiographs and overall picture are not indicative of severe spinal pathology. The patient does not appear to be an ideal candidate for physical labor type employment. However, there is nothing apparent from this examination that would preclude him from doing some type of sedentary work.” At a January 2011 occupational therapy consult, it was related that “[the Veteran] does not work due to mental health issues.” Another VA examination was provided in November 2011. The clinician related that the Veteran said he was “no longer able to work in his prior profession (law enforcement/customs) due to multiple injuries, including back.” The clinician stated the Veteran would be “unable to perform employment that requires prolonged sitting, prolonged standing, walking without assistance for long distance, or driving for long distance. Veteran would be able to perform sedentary work if permitted frequent breaks to stretch.” At a November 2013 VA examination for the low back, the examiner opined that the Veteran would be able to perform activities of daily living but would be limited in walking and standing for prolonged periods. In November 2013, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. Regarding his physical limitations, the Veteran described trouble walking and sitting, and needing help for cooking meals and sometimes grooming. When he attempted to do a task like cooking eggs, his back would start spasming after just a couple minutes. At night, his back caused him to be unable to sleep through the night, needing to get up and walk around in the middle of the night for relief. In general, he stated the back disability interfered with working with his hands out in front of him, such as computer work, and with standing or prolonged walking. The Veteran testified that in the past there had been times when symptoms were so severe that he was limited to staying in bed, which he estimated totaled to two to four weeks out of a year. Regarding psychiatric symptoms, the Veteran described getting irritated, and he related that even with accommodations he had been unable to pass the bar because he “couldn’t concentrate.” His wife testified that the Veteran had memory problems, would lose his train of thought in the middle of a conversation, and did not finish things he started. When asked about employability, the Veteran stated that it is a combination of physical and mental issues that prevent him from working. In September 2014, another opinion on employability was provided. Physical examination found decreased range of motion in the back with pain in the motion, and mild radicular symptoms in the lower extremities, plus neurological symptoms in the Veteran’s hands. Based on the examination and review of the Veteran’s file, the examiner stated that the Veteran’s service-connected low back, bilateral hips, and bilateral lower extremity radiculopathy would limit him in bending, tilting, twisting, and overhead lifting, and that alternating in sitting and standing may be required. He stated the Veteran could do light physical and sedentary employment. The Veteran wrote in August 2015 that his “back condition and medication for treatment” was the condition causing unemployability. “The side effects of the medications . . . leave me unable to function. I am unable to work due to the effects of these medication[s.] Employers will not hire me because of the effects of the medication on work ability.” In a January 2016 letter, the Veteran wrote that “I could not last longer at any given job as I did not get along with my supervisors and hardly made any acquaintances.” A nurse practitioner wrote a March 2016 letter that since the Veteran first appeared at her clinic in January 2011 the Veteran had had continuing chronic low back pain that required medications which “incapacitate him further.” She opined that due to the chronic nature and worsening of the Veteran’s back condition, it was highly likely that the Veteran would be unable to obtain or maintain employability. In December 2020, the Veteran testified at a second Board hearing before the undersigned Veterans Law Judge. Regarding his prior job at US Customs, the Veteran said the job eventually “became very exhausting” due to needing to go to frequent doctors’ appointments, which required either getting his supervisor’s permission or using leave. “It was too hard on me . . . physically, emotionally, because it wasn’t easy to deal with [his back problems].” He also stated that “it became impossible to perform my job in a safe manner,” as the job required carrying a firearm, and when he needed to take pain medications for the pain, he “didn’t [feel] safe carrying a firearm anymore.” He described the job as a physical one, requiring inspections of people, vehicles, and property, not just sitting and inspecting documents. As mentioned above, an August 2020 rating decision granted service connection for PTSD from January 9, 2006. A 70-percent rating was assigned from this date, based on VA’s finding symptoms including mild memory loss such as forgetting names and recent events, retention of only highly learned material, intermittently irrelevant or illogical speech, impaired abstract thinking, suspiciousness, anxiety with panic attacks more than once a week, disturbances of motivation and mood, impaired judgment, chronic sleep impairment, difficulty adapting to stressful circumstances and adapting to work or worklike settings, and inability to establish and maintain effective work and social relationships. Those symptoms were well supported by the record, including a September 2014 VA examination for PTSD. At that examination, the Veteran reported having dissociative symptoms since service, and after service beginning to experience irritability, panic attacks, suspiciousness, avoidance behaviors, anger outbursts, mood swings, and cycles of depression and mania. It was related that while working at US Customs he had “an outlet for his anger since it was a high adrenaline position,” but after he retired, his symptoms became “out of control,” and he began hallucinating people who “were not there,” hearing voices “calling his name,” and reaching for objects that were not physically there. It was noted the Veteran had been hospitalized four times for suicidal ideations, most recently in 2011. The examiner wrote that “the Veteran retired early in 1994 due to his mental health symptoms.” At the time of the examination, the Veteran’s wife was managing all the financial affairs. Moreover, the Veteran’s symptoms were opined to render him “unable to remain emotionally stable over an 8-hour day,” as he “responds to stressful situations by becoming verbally and physically abusive. He is not currently able to handle time pressure and multiple tasks.” Other evidence supported that these PTSD symptoms dated back to the effective date of January 9, 2006. For example, a treatment note from October 2011 found the Veteran had psychosis and auditory and visual hallucinations including hearing his name called out, a history of “feeling the system is out to get him,” not trusting people, anxiety with panic attacks two to three times a day, depression, low energy, poor concentration with loss of train of thought, decreased memory, history of mania with impulsivity and racing thoughts, and nightmares. Treatment notes from September 2011 showed the Veteran “tends to develop suicidal ideation”; his “hospitalizations have been precipitated by depressive episodes.” The Veteran had been attending anger management classes for over 10 years at the VA but was still depressed and did not feel he was getting any better. In January 2016, family members submitted letters describing a history of the Veteran becoming angry and aggressive, and withdrawing and isolating himself. At the December 2020 Board hearing, it was recounted that the Veteran volunteered in the mid-2000s at a mental health facility to meet with Veterans experiencing similar problems, and in the course of volunteering, the Veteran himself was referred for psychiatric evaluation for memory impairment, difficulty with concentration, including getting sometimes getting lost in the hospital facility where he volunteered. 1. TDIU from January 9, 2006 Based on review of all the evidence, the Board first finds that a TDIU is warranted from January 9, 2006. From January 9, 2006, the Veteran’s combined disability rating was over 60 percent, with one disability rated 40 percent or higher, thereby satisfying the first criterion in 38 C.F.R. § 4.16(a). Moreover, the Board finds that the evidence supports that the Veteran’s service-connected disabilities combined to render him unable to secure or maintain substantially gainful employment from January 9, 2006. The evidence shows that the Veteran’s PTSD created cognitive, social, and emotional impairments, such as memory and concentration problems, problems establishing and maintaining relationships, and irritability when faced with stressful situations like work, all of which would interfere with the Veteran’s ability to work in a work setting. Additionally, the evidence supports that the Veteran’s service-connected low back, hip, and lower extremity disabilities impair his ability to walk, stand, sit, and turn, which would interfere with performing jobs requiring these types of physical activities. See Ray, 31 Vet. App. at 72–73. Because the evidence from January 9, 2006, establishes that the Veteran’s service-connected disabilities rendered him unemployable from this date, a TDIU is granted from January 9, 2006. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 4.15, 4.16. 2. TDIU before January 9, 2006 The Board further finds, however, that a TDIU is not warranted for the period before January 9, 2006. In the period before January 9, 2006, the Veteran’s service-connected disabilities included the low back disability from 1993, rated at 40 percent, and bilateral hip arthritis from 2002, rated at 10 percent. The combined disability rating was not 60 percent or more, and therefore the first criterion under 38 C.F.R. § 4.16(a) for granting a TDIU is not met for the period before January 9, 2006. 38 C.F.R. § 4.16(a). While this fact is not wholly preclusive, since under 38 C.F.R. § 4.16(b) a TDIU claim may be referred to the Director, Compensation Service for consideration of entitlement to an extraschedular TDIU, a referral is available only where the evidence shows the Veteran is “unemployable by reason of service-connected disabilities,” and in this case the Board finds that the evidence is not sufficient to establish that the Veteran would have been unemployable solely due to his service-connected disabilities for the period before January 9, 2006. 38 C.F.R. § 4.16(b). First, the Board does not find sufficient evidence of unemployability solely due to service-connected disabilities in the opinions and statements from medical professionals during the period before January 2006. Two years after the Veteran’s 1991 work injury that led to medical retirement, in July 1993 Dr JC found that it would be “difficult” for the Veteran “to do the required walking of his previous job,” based on the “back in part” but also on the Veteran’s “knees and ankles,” which are not service-connected disabilities. Dr JC opined that “with respect to the [Veteran]’s back, he would be able to return to work, that is, his usual job.” In April 2001, Dr JMCP opined the Veteran “should be considered totally permanently disabled from gainful employment,” but this opinion was expressly based on the Veteran’s total combined disabilities, most of them not service-connected, including “attention deficits,” endocrine dysfunctions, neck and upper extremity disabilities, low back and lower extremity disabilities, and bilateral knee disabilities. In the years beyond January 2006, in January 2010 an examiner opined that while the Veteran did not “appear to be an ideal candidate for physical labor type employment,” there was “nothing apparent” from the examination or objective imaging that the low back disability would preclude the Veteran from non-physical work. The November 2011 VA examiner found that the Veteran would be unable to perform employment requiring prolonged sitting, prolonged standing, walking without assistance for long distance, or driving for long distance, but could work at a non-physical job “if permitted frequent breaks to stretch.” Next, the Board considers statements from the Veteran himself during the period before January 2006 and finds that the Veteran’s statements, viewed as a whole, reflect contentions of unemployability to combinations of his service-connected and non-service-connected disabilities. In July 1993, on a statement of disability he attributed “bilateral knee problems and chronic neck... pain with disc space narrowing at the C5-6 level.” At the June 2000 VA examination, he related to the examiner that he had trouble passing the bar due to “combination of his difficulty with attention deficit as well as the discomfort caused by his cervical and lumbar spine problems.” In November 2002, he described having an “attention deficit disorder, which I was told is caused by the many combined medical problems.” At a March 2004 hearing, the Veteran added that in addition to his low back disability, he was limited by arthritis in his hands, “anxiety and panic attacks,” and “nerves.” In a January 2016 letter, he wrote that “I could not last longer at any given job as I did not get along with my supervisors and hardly made any acquaintances,” presumably referring to his jobs during the period before January 2006 since he has not worked since 1991. Thus, on review of the evidence both from medical evaluators and from the Veteran, the Board finds that the evidence is not sufficient to support that the Veteran’s service-connected disabilities alone would have rendered him unable to secure and maintain employment in the period before January 9, 2006. Though the evidence certainly supports that the Veteran’s back disability manifested in functional impairment, the evidence from medical professionals differed on whether the Veteran’s disabilities rendered him unemployable. Further, among the evidence that did assert that the Veteran was unemployable, such evidence was based on various combinations of the Veteran’s disabilities, most of them not service-connected. In finding that the evidence is not sufficient to establish that the Veteran’s service-connected disabilities alone rendered him unemployable before January 9, 2006, the Board clarifies that the mere fact that non-service-connected disabilities may have also contributed to unemployability does not in itself preclude finding that the service-connected disabilities, on their own, could have caused unemployability. Rather, the Board finds, based on the evidence of record in this case, that there is not sufficient evidence that the Veteran’s service-connected disabilities, on their own, caused unemployability, an essential fact that the evidence must establish in order to warrant a TDIU. 38 C.F.R. § 4.16(a) (“unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities” (emphasis added)). The Board acknowledges the recurring statement from the Veteran that his functional impairment included attention problems, which were attributed as the central limitation in passing the bar examination, and his contention that the attention problems were caused by the pain of his service-connected low back condition and/or his “many combined medical problems” (as written in his November 2002 submission). The evidence of record, however, does not show the Veteran has education, training, or experience to opine on the etiology of any attention deficit disorder, which are medically complex issues beyond observation by the senses, and there is no competent evidence elsewhere in the record to raise an indication that the Veteran’s low back disability manifested in a secondary disability of an attention deficit disorder. Accordingly, the Board does not find that VA had a duty to assist the Veteran in developing a claim for secondary service connection for attention problems. Layno v. Brown, 6 Vet. App. 465, 470 (1994); see 38 U.S.C. § 5103A(d), 38 C.F.R. § 3.159(c)(4). Moreover, even if the evidence of record were sufficient to establish that the Veteran’s attention problems were attributable to the low back disability, such a fact would not be enough to change the Board’s finding, based on all of the evidence, that the evidence is insufficient to establish that the functional limitations of the Veteran’s service-connected disabilities alone would have rendered him unemployable before January 9, 2006. Even assuming the attention problems were established as a symptom of his low back disability, while such a symptom may have significantly interfered with the Veteran’s ability to pass the bar examination, the Board does not find that the inability to pass a professional licensure examination alone is sufficient to establish that the Veteran’s service-connected disabilities rendered him incapable of employment in any possible occupation that otherwise would have conformed with his physical limitations. See Ray, 31 Vet. App. at 72 (“The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment.” (quoting Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993)). The Board acknowledges the argument from the Veteran’s representative at the December 2020 Board hearing that no medical examiner ever considered the effect of pain medications on the Veteran’s impairment. The Board notes that it was not until an August 2015 submission that the Veteran first alleged that it was the pain medication that was causing unemployability since his medical retirement in 1991. As to the representative’s argument, because this allegation was not raised until 2015, there was no duty to assist the Veteran by having an examiner address this issue. See McLendon, 20 Vet. App. at 83, 86. To the extent that this contention raised in August 2015 and expanded upon at the December 2020 Board hearing was a new, additional functional impairment from August 2015, the Board notes that a TDIU has already been awarded from August 2015 (and, as of the above decision, dates back almost a decade from the August 2015 decision). To the extent the contention was intended as an argument of an additional impairment creating unemployability during the period before January 2006, the Board further finds that the evidence, both from the Veteran’s own statements and the descriptions of the medical professionals treating and evaluating him during this time period, is insufficient to establish that the Veteran was rendered unemployable by the effects of the medications he took for his back, even when combined with the functional impairment created by the back disability itself. The Veteran testified at the December 2020 Board hearing that one reason he left his job at US Customs was because he did not feel safe carrying a firearm under the effects of medication. Notably, however, the Veteran made no further contention that the effects of the medication impaired him physically or mentally such that it would have rendered him unable to secure and maintain employment in a job that did not require carrying a firearm. Likewise, the Board acknowledges the representative’s additional argument that the Veteran’s only work experience was in law enforcement, and that the Veteran did not “have experience in the sedentary or light-duty positions.” The Veteran’s previous work experience, however, is only one factor that may be considered in evaluating unemployability. Ray, 31 Vet. App. at 72-73. Here, the evidence reflects the Veteran has a four-year college education, and that in the years following his US Customs job he was able to obtain a juris doctorate degree (acknowledging that this was with accommodations). These facts are probative as to the Veteran’s mental ability to perform activities required in an occupational setting. As mentioned above, the Board does not find an inability to pass a licensure examination and apply one’s degree in the specific field it is geared towards as wholly dispositive of the mental ability to obtain and maintain employment in any and every occupation, including jobs that may conform with a Veteran’s physical disabilities. See Ray, 31 Vet. App. at 72. In sum, without sufficient evidence that the Veteran’s service-connected disabilities alone would have rendered him unemployable in the period before January 9, 2006, a referral to the Director, Compensation Service is not warranted. 38 C.F.R. § 4.16(b). Accordingly, a TDIU for the period before January 9, 2006, is denied. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 4.15, 4.16. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Davis, 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.