Citation Nr: 21031845 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 07-18 540 DATE: May 24, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to January 15, 2014, is denied. FINDING OF FACT Prior to January 15, 2014, the Veteran's service-connected disabilities (a low back disability, rated 40 percent; left lower extremity radiculopathy, 10 percent; dysthymia, 10 percent; and vitreous detachment and lattice degeneration of the left eye, 0 percent) were rated 50 percent, combined, and were not shown to have been of such nature and severity as to preclude his participation in regular substantially gainful employment consistent with his education and experience. CONCLUSION OF LAW Prior to January 15, 2014, the schedular requirements for a TDIU rating were not met, and a TDIU rating was not warranted. 38 U.S.C. §§ 1155, 5101, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400, 4.16(a), (b). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from July 1974 to July 1977 and from March 1978 to April 1988. This matter is before the Board of Veterans' Appeals (Board) on appeal of a March 2006 rating decision that denied a TDIU rating. In October 2014, a hearing was held before the undersigned in Washington, D.C.; a transcript is in the record. An interim ( July 2016 ) rating decision granted TDIU effective January 15, 2014. The Veteran continued his appeal seeking TDIU prior to that date. An August 2017 Board decision denied him a TDIU rating prior to January 15, 2014. He appealed that decision to the Court of Appeals for Veterans Claims (CAVC). A March 2018 CAVC Order vacated the portion of the Board's August 2017 decision that denied TDIU prior to January 15, 2014 and remanded it to the Board for further development and re-adjudication consistent with terms of a Joint Motion for Partial Remand (JMPR). In July 2018 and November 2020, the case was remanded for further development. Entitlement to a TDIU rating prior to January 15, 2014, is denied. As noted above, a TDIU rating has been granted from January 15, 2014, and the issue before the Board is whether such rating was warranted prior to that date. VA will grant a total rating for compensation purposes based on individual unemployability when the evidence shows that by reason of service-connected disability the veteran is precluded from obtaining or maintaining substantially gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. A TDIU rating for compensation purposes may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more; or if there are two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Prior to January 15, 2014, the Veteran's service-connected disabilities were a low back disability rated 40 percent; left lower extremity radiculopathy, 10 percent; dysthymia, 10 percent; and vitreous detachment and lattice degeneration of the left eye, 0 percent; the combined rating was 50 percent. Thus, prior January15, 2014 (from which date a TDIU rating was awarded) the 38 C.F.R. § 4.16(a) schedular criteria for a TDIU rating were not met, and any award of TDIU would have to be on an extraschedular basis. It is the policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). The process for establishing entitlement to an extraschedular TDIU rating is described in 38 C.F.R. § 4.16(b). That process requires first an adjudicative determination that the Veteran is rendered unemployable by virtue of service-connected disabilities, and if that determination is affirmative, followed by referral to the Director, Compensation System. At the outset, it is noteworthy that disability ratings represent, as far as can practicably be determined, the average [emphasis added] impairment in earning capacity resulting from the service-connected disabilities in civil occupations. See 38 C.F.R. § 4.1. In other words, occupational impairment with respect to a specific type of employment is not dispositive; and if a Veteran is precluded by service connected disability or disabilities from participating in a specific type of employment in which the Veteran has primary experience, but remains capable of maintaining other regular substantially gainful employment consistent with education and occupational experience, such Veteran is not deemed unemployable. The central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In his November 2002 application for TDIU, the Veteran reported that he worked full-time as a barber stylist, and claimed that his service-connected low back disability limited such work. He reported that he had a high school education and attended barber school from September 1989 until February 1991, receiving a barber license. He had worked as a barber since 1995. He related that he stood while cutting hair, but also frequently sat while styling hair. At the October 2004 Decision Review Officer (DRO) hearing, the Veteran reported constant low back pain, which was currently 6/10, and that twice a year he had severe back pain that caused trouble getting out of bed. He related that he took medication, performed back stretches, and sought treatment for back pain twice in the last year. He reported that he was a professional barber, and that he used a stool because he had difficulty standing for prolonged periods. The Veteran reported that he worked 8-10 hours a day, 6 days a week and that he had lost approximately 30 days of work (slightly over a day a month) in the last two years. He has reported variously that he stopped working between 1999 and 2003, but a January 2005 VA Vocational Rehabilitation record notes that he was still working as a barber. A March 2005 VA treatment record notes that the Veteran reported that he was working as a barber but had daily back discomfort. On June 2005 VA spine examination, the Veteran reported intermittent low back pain with frequent radiation down the left lower extremity with numbness but no weakness. The examiner observed that the Veteran used a cane in his right hand but did not appear to require it, his gait was slow and cautious, and sensation was intact bilaterally to light touch. Muscle strength was 5/5 in the lower extremities, bilaterally, and there was no evidence of weakened movement, excess fatigability, or incoordination. The Veteran related that he had functional limitations because he had difficulty standing and walking for prolonged periods was precluded from sporting activities due to pain. The examiner noted that the Veteran was able to feed, dress, and bathe himself without limitation, and was able to drive an automobile (which he drove to the appointment). September 2005 VA depression and posttraumatic stress disorder (PTSD) screens were negative. A March 2006 VA treatment record notes that the Veteran's anxiety was stable and that he had completely weaned himself off of Paxil. An August 2006 VA treatment record notes that the Veteran reported the he could not sit for prolonged periods, but that his back pain was not above baseline. An October 2006 VA treatment record notes that the Veteran reported difficulty standing for prolonged periods due to loss of strength and pain, and PTSD and depression screens were negative. On January 2007 VA mental disorders examination, the Veteran reported that since 2004 he has experienced signs and symptoms of mild depression 3 or more times a week and that he stopped working in 2004 because he was not able to sustain the physical demands. He related that he stays home most of the time and is seen about once a month for chronic back pain and depression. The Veteran reported that he took Amitriptyline to help him sleep, he has not required psychiatric hospitalization, and he had not had any active suicidal ideation. He related that he feels down because he is unable to do tasks that he was once able to do. Regarding activities of daily living, the examiner noted that the Veteran was able to care for his personal needs, although his ambulation is difficult, use public transportation independently, and handle his financial matters. The only psychopathology noted on examination was situational depression or dysthymia, which is related to his current physical difficulties, including chronic pain. Anxiety was not evident on examination. On mental status examination, the Veteran was appropriately groomed, his speech was normal, there was no evidence of hallucinations or delusions, and his affect was congruent to thought content and mood. He denied suicidal and homicidal ideation, and he was fully oriented in all spheres. A September 2007 VA treatment record notes that depression and PTSD screens were negative, and the Veteran's dysthymic disorder was stable. Although it appears he initially declined a mental health clinic referral, major depressive disorder screening was positive with a PHQ-2 score of 4 such that he endorsed little interest or pleasure in doing things and feeling down depressed or hopeless for more than half the days in the last 2 weeks, and he accepted referral to Mental Health for evaluation. An October 2007 VA treatment record notes that the Veteran reported that he felt good, but he did feel somewhat helpless and limited in what he could do because of his chronic back pain. He related that he slept 6 hours a night and had not experienced suicidal or homicidal ideation. A December 2007 suicide risk assessment was negative with a score of 0. A February 2008 VA treatment record notes that the Veteran reported that he continued to do well and denied any signs or symptoms of depression or dysthymia. On May 2008 spine examination, the Veteran reported severe, constant, low back pain, that he used a cane, that he can walk for short distances, and that he was able to perform some activities of daily living. He related that he had difficulty putting on his shoes and socks and was currently in physical therapy and was regularly performing back exercises. The Veteran reported that he could walk up to 2 blocks, and had not experienced incapacitating episodes or flare-ups. On May 2008 mental disorders examination, the Veteran reported no current treatment for a mental disorder (or symptoms of a disorder) and that Paxil was prescribed between 2001 and 2004. He reported no history of unemployment or time lost from work due to dysthymia and that when he was working, the depressive symptoms were not significant in relation to his ability to work as a barber. He stopped working due to his physical problems. The Veteran reported that his social functioning was good. He was able to visit relatives with his girlfriend, go out to eat, drive, and dress himself. He did not go shopping because he would have trouble lifting groceries. He related that his able to do most activities of daily living except put on his shoes. On mental status examination, he spoke clearly and coherently, his affect was euthymic, and reported no current symptoms of depression. He reported having no suicidal or homicidal ideation, was oriented in all spheres, and was found to be capable of managing VA benefits. A July 2008 VA PHQ-9 score was 0, suggestive of no depression. A July 2008 VA treatment record notes that the Veteran reported that prolonged sitting or standing worsened his back pain. Heat, rest, and over-the-counter medication alleviated the pain. September 2009 and May 2010 VA treatment records note that the Veteran's low back disability was stable. He reported his pain as 8/10. It was recommended that he continue to ambulate with a cane and use NSAIDs as needed. A June 2011 VA treatment record notes that the Veteran was seen for a routine visit. He reported back and leg pain (rated 8/10) that was worse in the morning, and was controlled by Motrin. An August 2012 PHQ-2 score was 0, suggestive of no depression, and no symptoms of depression were endorsed by the Veteran. An April 2013 VA treatment record notes that the Veteran was seen in primary care for ankle swelling, chronic lower back pain, and depression. He reported that he was depressed over his physical situation because he could not participate in activities like he used to. This made him sad, but he did not want to speak with anyone. A June 2013 VA treatment record notes that the Veteran was seen for chronic back pain and left ear pain. The problem list showed dysthymic disorder, but he was not currently prescribed any psychotropic medication. The Veteran denied suicidal ideation and depressive symptoms. He related that he lived with a female friend who worked during the day, that he tried to stay busy doing housework, and that his sleep was sometimes disturbed because he tossed and turned throughout the night. He did not report that depressed mood or anxiety interfered with his sleep. An August 2013 VA treatment record notes that Amitriptyline was prescribed for pain, numbness, and tingling, not depression. On September 2013 VA spine examination, the examiner opined that the constant low back pain with prolonged standing, sitting or bending, limited the Veteran's ability to pursue or maintain both sedentary and physical types of employment. On September 2013 peripheral nerves examination, the examiner opined that the Veteran's sciatic nerve pain that occurred with prolonged standing, sitting, or bending, limited his ability to pursue or maintain both sedentary and physical types of employment. On September 2013 mental disorders examination, major depressive disorder, recurrent, moderate, was diagnosed. The examiner opined that the Veteran's depression disability picture was best characterized as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran reported that he last worked as a barber in 2003 and that symptoms of anxiety and panic, chronically disturbed sleep, difficulty concentrating, and depressed mood had a detrimental impact upon his ability to function in the workplace. He reported no current psychotherapy treatment and that he took no medication for any psychiatric symptoms. The Veteran related that his symptoms of anxiety and panic, restricted affect, anhedonia, chronically disturbed sleep, difficulty concentrating, depressed mood, fatigue, psychomotor sequelae, passive suicidal ideation, feelings of worthlessness and guilt, and suppressed appetite have increased in frequency, duration and intensity since the last examination. The examiner further opined that due to the level of the symptoms discussed above, and the manner in which they disrupt the Veteran's ability to relate to superiors and co-workers, and the degree to which they impair his ability to accomplish tasks for which he is being paid, it is at least as likely as not that the Veteran would be unable to secure or maintain any kind of reasonable employment at this time. The Veteran's individual unemployability is more likely than not caused by his psychiatric condition which is directly related to his service-connected medical problems. A December 2013 VA treatment record notes that the Veteran called the VA National Homeless Prevention Hotline because he was at risk of losing his housing because he was two months behind on the rent. He did not report any depression symptoms, and there was no description of his mental status. Social Security Administration (SSA) records reflect that a June 2014 decision found the Veteran was not disabled prior to 2001, and listed a primary diagnosis of low back disability and a secondary diagnosis of hypertension. The Veteran reported that he walked a lot at home to stay active, used public transportation, shopped in stores, and could prepare simple meals. His residual function capacity was noted to be that he occasionally (1/3 or less of an 8 hour day) could lift or carry 20 pounds, frequently (more than 1/3 up to 2/3 of an 8 hour day) could lift or carry 10 pounds, could stand and/or walk for 4 hours (with normal breaks) and could sit (with normal breaks) for a total of about 6 hours in an 8 hour workday. In a July 2019 VA opinion, the provider responded to the July 2018 remand directive and noted that the September 2013 provider was a doctor (but did not indicate what type), that he no longer performed compensation and pension examinations for that VA facility, and that she could only speculate as to his conclusions. In a July 2020 mental disorders Disability Benefits Questionnaire (DBQ), it was noted that the Veteran had chronic spinal pain secondary to a service-connected spinal stenosis that caused and exacerbated symptoms of dysthymia and that he had not been employed since 1999. In a July 2020 mental disorders opinion, the provider noted that he was unable to locate service treatment records (STRs) that offered a diagnosis of dysthymia, such disorder was due to the Veteran's chronic spinal pain and service-connected spinal stenosis, and that his unemployability was less likely due to a "mental evaluation during service," and more likely due to his back disability. The provider also noted that the Veteran's current back pain lead to depression which interfered with his daily functioning. In November 2020, the Board directed that a retrospective opinion be obtained regarding the impact the Veteran's service-connected psychiatric disability would have been expected to have on his occupational functioning from 2006 until January 15, 2014. The consulting provider was to indicate whether there was any support in the evidentiary record (apart from the September 2013 DBQ examination report) that prior to January 15, 2014, the psychiatric disability had a substantial impact on his employability/rendered him unemployable. If there was such evidence, it should be noted in detail. The provider was also to identify any periods (from October 2006 to January 15, 2014) when symptoms of the Veteran's psychiatric disability varied (in impact on employability, and if so, to what degree) and express agreement or disagreement with the conclusions reached by the September 2013 VA examiner, based on available evidence, regarding the impact of the Veteran's disability on his employability. In a December 2020 mental disorders DBQ, a consulting provider opined that the Veteran's employability was impacted by his physical limitations and their effects on his emotional functioning. He also had reduced attention and concentration, and difficulty completing tasks due to constant pain. The Veteran reported that his irritability could be problematic at times and that he preferred to be left alone and did not interact well with others. His forgetfulness and reduced attention create problems on a day-to-day basis for which he is helped by his girlfriend. The Veteran is generally disorganized with day-to-day tasks and requires help with these concerns. The Regional Office (RO) found that the December 2020 DBQ was not adequate (because it was it focused essentially on current (and not retrospective) impairment due to mental health disorders) and directed that an addendum opinion be obtained. In a February 2021 mental disorders DBQ, the Veteran's mood was assessed by the provider as within normal limits, and his affect was congruent with his mood. His thought content was devoid of suicidal or homicidal ideations, intentions or plans, and his thought processes were logical, coherent and goal oriented. His cognitive functions were normal, he was oriented to person, place, time, and purpose, and his insight and judgment were intact. The RO found that the February 2020 mental disorders DBQ was also inadequate and directed that an additional addendum opinion be obtained. In a February 26, 2021 addendum opinion, the VA provider indicated that she reviewed the claims file and developed multiple opinions in response to the Board directives. She opined that from 2006 until January 15, 2014, the Veteran's service-connected dysthymia (Dysthymic Disorder) was judged to have the following level of occupational and social impairment: a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. The provider noted that she found no support in the evidentiary record (apart from the September 2013 DBQ examination report) that prior to January 15, 2014, the psychiatric disability had a substantial impact on his employability or rendered him unemployable. She did not find any periods from October 2006 to January 15, 2014 when the Veteran's dysthymia varied in the impact it had upon his occupational functioning. Further, based upon the review of the available evidence in the claims file, the provider disagreed with the conclusions reached by the September 2013 examiner regarding the impact of the Veteran's dysthymic disorder on his occupational functioning/employability. The provider explained that the Veteran was diagnosed with dysthymia as noted in his VA medical records, but consistently evidenced minimal depression symptoms throughout the period on review and psychotropic medication for depression was never prescribed during such time period. He only screened positive for depression on one occasion, as on September 12, 2007 when he was referred to mental health. On initial evaluation with mental health on October 31, 2007, the Veteran reported feeling good other than feeling helpless related to an inability to do the activities he used to do because of chronic back pain. However, he had good relationships with his family members, participated in leisure activities, attended church weekly, traveled to state parks, and had an intact mental status examination with euthymic, not depressed, mood and affect. He denied suicidal ideation. The Veteran had never participated in psychotherapy before and was not prescribed psychotropic medication at the time (and psychotropic medication had not been prescribed during the previous 5 years). The mental health provider described his depression symptoms as minimal, and she continued to describe his depression symptoms as minimal throughout the course of outpatient treatment until he discontinued psychotherapy on February 6, 2008, commenting that he denied any issues over the course of the past 5 years during which time he had not taken psychotropic medication and stated that it was unclear how he screened positive for depression, which led to initiation of psychotherapy. The provider stated, "[h]e denies any depression symptoms at this time as he has pretty much since the initial assessment in October 2007." The February 2021 provider indicated that from that time until the end of the period of review in January 2014, the Veteran screened negative for depression. His primary care notes show he carried a diagnosis of dysthymia/depression, but psychotropic medication was not prescribed and he consistently declined referrals for mental health consultation thereafter. It was noted that the September 2013 examiner endorsed the following symptoms: depressed mood; anxiety; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work-like setting; suicidal ideation; and neglect of personal appearance and hygiene. However, the February 2021 provider found no evidence in the medical records during the period of review to support the presence of such symptoms. While there was a report of brief depressed mood in September 2007, upon further evaluation, the Veteran's depression was minimal with no associated functional impairment, and his depression remained at a minimal level throughout the period of review. The sleep impairment noted in the claims file related to chronic pain, not depression, as evidenced by the fact that he discussed sleep problems with regard to pain discussions, and he evidenced sleep problems even when no significant depression symptoms were present. There was no evidence of active anxiety symptoms during the period of review such that the Veteran's anxiety was noted to be fine after going off Paxil in March 2006. In October 2006, his anxiety was said to have resolved, and his anxiety remained stable throughout the period on review thereafter. The Veteran did not report panic attacks to treating providers during period on review. There was no evidence of memory impairment and memory was noted to be intact by treating providers. Mental status examinations consistently noted euthymic mood and did not describe flattened affect. The medical records (prior to January 2014) did not describe the Veteran as evidencing disturbances of motivation or mood, difficulty in establishing or maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including a work or work-like setting. He consistently denied suicidal ideation, and there was no documentation of neglect of personal appearance and hygiene throughout the period on review. Therefore, there was no objective evidence in the claims file to support the September 2013 examiner's medical opinion with respect to the Veteran's occupational functioning and employability. There was no evidence of severe depression, severe sleep problems, significant daytime fatigue, significant social impairment, suspiciousness of others, irritability or anger problems, problems with concentration, or memory impairment. Mental status examinations were consistently within normal limits throughout period of review. Therefore, there was no evidence of functional limitations due to service-connected dysthymia that would limit his occupational functioning during the period on review. The Veteran has been awarded a TDIU rating from January 15, 2014 (when right lower extremity radiculopathy became service connected, and could be considered in determining entitlement to TDIU), and schedular criteria for a TDIU rating were first met. Prior to January 15, 2014,the Veteran's service-connected disabilities included : vitreous detachment and lattice degeneration of the left eye, rated 0 percent (and not shown to have resulted in any significant occupational impairment);low back strain and disc disease, rated 40 percent; left lower extremity radiculopathy, rated 10 percent; and dysthymia, rated 10 percent. The combined rating (as noted above was 50 percent). Given the nature and severity of the low back and left lower extremity disabilities, it may reasonably be conceded that by virtue of his service connected disabilities he was precluded from engaging in the more strenuous types of employment (that required prolonged standing or walking or full, or not significantly limited, use of the lower extremities). What remains for consideration therefore is whether prior to January 15, 2014, by virtue of his service-connected disabilities, the Veteran was also precluded from participating in sedentary forms of employment or forms of employment that involve a mix of sedentary work and some standing or walking. Capability for such type of work is suggested by the SSA determination which found he could sit for up to 6 (out of 8) hours, with allowances for normal breaks. Such capability is consistent with much clerical work (consistent with the Veteran's high school education). Notably, the Veteran is not shown to have had upper extremity limitations due to service-connected disabilities. While a September 2016 VA examiner opined that the Veteran's ability to engage in physical and sedentary types of employment would be limited by his prolonged sitting and standing limitations, that examiner did not opine that by virtue of his service connected disabilities the Veteran would be incapable of work primarily done seated, with some limited standing and walking. The Board finds noteworthy that (prior to January 2014), the Veteran reported he walked to stay active, took public transportation, and shopped for himself, activities consistent with those associated with light clerical types of employment. Since it is suggested that he could engage in light clerical and/or some types of sedentary employment, a definition of "sedentary employment" (being the more restrictive form of employment) to the extent it is referenced in the decision is necessary. [The Board notes that one definition of 'sedentary' is sitting habitually, or pertaining to a sitting posture. See DORLAND'S ILLUSTRATED Medical Dictionary]. There is nothing in the record to indicate that he could not engage in tasks such as telephone answering, or greeting customers, taking orders, etc. The Board also notes that the Veteran's service-connected psychiatric disability was then rated 10 percent. The September 2013 examiner opined that due to the severity of the Veteran's psychiatric symptoms, and the manner in which they disrupt the Veteran's ability to relate to superiors and co-workers, and the degree to which they impair his ability to accomplish tasks for which he is being paid, it is at least as likely as not that he would be unable to secure or maintain any kind of reasonable employment at this time. The CAVC directed the Board to consider the September 2013 examiner's opinion and the effects that the Veteran's mental disorder had on his employability. The February 26, 2021 VA consulting provider's opinion (found by the Board to be the most probative, and only adequate, opinion obtained of the multiple opinions obtained on remand) notes that from 2006 until January 15, 2014, the Veteran's service-connected dysthymia was judged to have the following level of occupational and social impairment: a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. The provider noted that she found no support in the evidentiary record (apart from the conclusory (as it does not cite to supporting factual data/clinical findings) September 2013 DBQ examination report) that prior to January 15, 2014, the psychiatric disability had a substantial impact on his employability or rendered him unemployable. She did not find any period from October 2006 to January 15, 2014 when the dysthymia varied in the impact it had upon his occupational functioning. Further, based upon the review of the available evidence in the claims file, the provider disagreed with the conclusions reached by the September 2013 examiner regarding the impact of the Veteran's dysthymic disorder on his occupational functioning/employability. The February 26, 2021 VA provider's opinions are probative evidence against the Veteran's claim and the Board finds them persuasive. The provider reviewed the record, considered the evidence of record, to include the September 2013 VA opinion, and supported the opinions with rationale that cites to supporting factual data and medical evidence (to include a finding that while there was a report of brief depressed mood in September 2007, upon further evaluation, the Veteran's depression was minimal with no associated functional impairment, and his depression remained at a minimal level throughout the period of review, and that the medical records (prior to January 2014) did not describe the Veteran as evidencing disturbances of motivation or mood, difficulty in establishing or maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including a work or work-like setting). Therefore, the symptoms associated with the Veteran's service-connected psychiatric disability would not have had a substantial impact on his employability. In summary, the record simply does not show or suggest that prior to January 15, 2014, the Veteran was, by virtue of his service-connected disabilities, rendered incapable of participating in any substantially gainful employment consistent with his education and experience. Accordingly, referral of this claim to the Director, Compensation Service for consideration of such rating is not warranted, and a TDIU rating prior to January 15, 2014, is not warranted. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bayles, 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.