Citation Nr: 18152034 Decision Date: 11/21/18 Archive Date: 11/20/18 DOCKET NO. 16-27 354 DATE: November 21, 2018 ORDER A total disability rating based on individual unemployability (TDIU) prior to July 23, 1996 is granted. FINDING OF FACT From December 1, 1993 to July 23, 1996, the Veteran's service-connected disabilities prevented him from securing or following substantially gainful employment; he engaged only in marginal employment during this time period. CONCLUSION OF LAW The criteria for a TDIU prior to July 23, 2016 are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.1, 4.3, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION TDIU ratings for compensation may be assigned, where the scheduler rating is less than total (100 percent), 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: provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more and that, if there are two or more disabilities, there shall be at least one disability ratable at a 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 3.340, 3.341, 4.16(a). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). In the instant matter, from December 1, 1993 to July 23, 1996, the Veteran was service-connected for the following impairments: (1) chloracne with boils rated at 30 percent; (2) post-operative residuals of temporomandibular joint (TMJ) surgery rated 40 percent; (3) osteoporosis of the cervical spine rated 20 percent; (4) osteoporosis of the lumbar spine rated 10 percent; (5) osteoporosis of the right and left knees each rated 10 percent; and (6) hemorrhoids and (7) chronic fatigue rated noncompensable. His combined rating for these conditions is 80 percent. See 38 C.F.R. § 4.25. As the Veteran has at least one impairment rated at 40 percent or greater and sufficient additional disability that brings his combined rating above 70 percent or more, he meets the scheduler criteria for a TDIU. See 38 C.F.R. § 4.16(a). The Board must now consider whether the evidence reflects that the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation. The Veteran last worked as an investigator with the Equal Employment Opportunity Commission in April 1990. In a January 1993 letter, the Veteran reported his osteoarthritis affects his joints in the neck, back, and knees. When this condition flares, he is nearly incapable of movement. During a January 1994 examination, the Veteran reported increased pain in his neck, back, and knees for which he takes medication every eight hours as needed for the pain. He stated that when he has pain, his joints also swell. He lives alone; however, members of his church come over and help him dress when the pain is severe and help him button buttons on his shirt. He can scarcely turn his head on the pillow when the pain occurs. His TMJ disability resulted in limited motion of the mandible as well as numbness. The Veteran also reported bleeding from the rectum, and constant chronic constipation. Upon physical examination, he had full range of motion of the neck, with limited motion of the lumbar spine. The diagnoses included osteoarthritis to the neck, back, and knees. In a March 1996 examination, the Veteran reported he went to college for four years, graduate school for two years, and he worked as a Federal investigator from September 1978 to April 1990. He stated he was unjustly terminated in April 1990 for poor job performance, but he does not feel that he had poor job performance. He reported he had been trying to get jobs recently, but the only thing he can get is part-time jobs, substituting for teachers in the school system. He felt he was being black-balled by the federal government because he had a suit against them at one time. Due to his TMJ disability, the Veteran had severe pain, could not open his jaw or chew solid foods. (Continued on the next page)   The Board has considered the Veteran's employment history, education and the evidence of record regarding the service-connected disabilities. Resolving any doubt in his favor, the Board finds that the sum of the Veteran's service-connected disabilities result in an inability to obtain or retain substantially gainful employment based on the Veteran's past work experience. As such, the Board concludes that entitlement to TDIU is warranted for the period from December 1, 1993 to July 23, 1996. M. Tenner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Diane M. Donahue Boushehri, Counsel