Citation Nr: 18161188 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 13-35 583 DATE: December 28, 2018 ORDER An initial rating in excess of 30 percent prior to May 21, 2014, and a rating in excess of 70 percent thereafter, for service-connected posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. Prior to May 21, 2014, the Veteran’s PTSD was manifested by depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, and impaired impulse control. 2. Since May 21, 2014, the Veteran’s PTSD is manifested by depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events), flattened affect, difficulty in understanding complex commands, impaired judgment, 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 worklike setting), inability to establish and maintain effective relationships, obsessional rituals which interfere with routine activities, impaired impulse control (such as unprovoked irritability with periods of violence), persistent delusions or hallucinations, and neglect of personal appearance and hygiene. 3. The Veteran’s service-connected disabilities have not rendered him unable to secure or follow a substantially gainful occupation at any time during this appeal. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 30 percent prior to May 21, 2014, and a rating in excess of 70 percent thereafter, for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.10, 4.125, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.2, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from March 1999 to September 1999 and from April 2004 to November 2005. He is in receipt of the Combat Action Badge. This matter was remanded by the Board in December 2017 for further development. 1. PTSD The Veteran contends that his service-connected PTSD warrants higher ratings than currently assigned. A 30 percent rating is effective for the period prior to May 21, 2014, and a 70 percent rating is effective thereafter, under Diagnostic Code 9411. For the reasons that follow, the Board concludes that increased ratings are not warranted. The regulations for mental disorders are found in 38 C.F.R. §§ 4.125-4.130. The Board notes that psychiatric disabilities evaluated under Diagnostic Code 9411 are rated according to the General Rating Formula for Mental Disorders. The rating criteria provides a 30 percent rating for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is provided for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is provided for 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 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 worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is provided for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; 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 or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. §§ 4.125-4.130. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is a Veteran’s symptoms, but it must also make findings as to how those symptoms impact a Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran’s impairment must be “due to” those symptoms, a Veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. The Board notes that the DSM-IV has been updated with a Fifth Edition (DSM-V). Effective August 4, 2014, VA issued an interim rule amending the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations to refer to certain mental disorders in accordance with DSM-V. The provisions of the interim final rule only apply, however, to all applications for benefits that are received by VA or that are pending before the agency of original jurisdiction on or after August 4, 2014. Because this appeal was not certified before the Board until August 23, 2014, it was pending before the RO on or after August 4, 2014. Therefore, the applicable DSM-V criterion applies. Turning to the evidence of record, the Veteran received an initial VA PTSD examination in September 2011. The examiner stated that the Veteran’s mental disorder was characterized by occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. The Veteran stated that he had worked as a police officer for 8 years. In 2007, he got into an argument with his former spouse while on duty and overturned her desk during an angry outburst. The Veteran also recalled an incident two years prior in which he shoved a woman blocking his exit. Additionally, he had recently punched a wall after his pregnant spouse smoked a cigarette. The Veteran stated that he had improved in managing his anger and aggression since then and he would exercise whenever he became irritable or angry. The Veteran reported being close to his spouse, father, and brother. He also played weekly golf and went fishing with fellow police officers. In addition, he enjoyed television, went to church, and had dinner with his spouse. The examiner noted symptoms such as irritability or outbursts of anger, difficulty concentrating, depressed mood, anxiety, suspiciousness, chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). On VA examination in May 2014, the examiner noted diagnoses of PTSD and a history of traumatic brain injury (TBI). The examiner stated that the Veteran’s symptoms of reexperiencing trauma and avoidance were more likely due to PTSD, while the symptoms of anxiety, depression, fatigue, headaches, panic, sleep difficulty, irritability, impaired attention and concentration, short temper, decreased interest in sex, loss of interest in pleasurable activities, decreased tolerance for stress and frustrations, and memory problems were common to both PTSD and TBI. The Veteran was adequately groomed and appropriately dressed on examination. Affect was restricted and thought flow was logical, linear, and relevant, though not precise. The Veteran complained of auditory hallucinations and blurs out of the corner of his eye. The examiner stated that the Veteran’s mental disorder was characterized by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Veteran reportedly lived with his second wife and their son, but he was prevented from contacting his daughters from his previous marriage. He described his marriage as “not good” and he isolated himself due to anger problems. The Veteran remained in his shop most of the day, and had decreased interest in fishing and golf. The examiner noted that the Veteran did not socialize. The Veteran claimed he had been on medical leave from his job as a police officer for psychological reasons since December 2013. He also reported excessive anger at work, and his records indicated problems using excessive force. Observed symptoms included irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects, hypervigilance, exaggerated startle response, problems with concentration, depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events), flattened affect, difficulty in understanding complex commands, impaired judgment, 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 worklike setting), inability to establish and maintain effective relationships, obsessional rituals which interfere with routine activities, impaired impulse control (such as unprovoked irritability with periods of violence), persistent delusions or hallucinations, and neglect of personal appearance and hygiene. The examiner noted that the Veteran was capable of managing his financial affairs. The Veteran recently received a VA PTSD examination in June 2018 and the examiner stated that the Veteran’s PTSD was characterized by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. He was appropriately dressed in casual attire, cooperative, and exhibited anxious mood and blunted affect. The Veteran had appropriate eye contact, impoverished speech, and logical, linear thought. No sign of psychosis was noted and the Veteran denied any suicidal ideation. The Veteran was still living with his wife and their son, and had no contact with his daughters. He reported that he slept separately from his wife and they did not communicate much, other than to argue. He described their relationship as akin to roommates. The Veteran denied any problems controlling his temper at home, which he attributed to isolating himself in his room watching TV. He kept in touch with an individual via social media, but could not recall her name. He also reported that he got along with and kept in touch with his father, but he had no contact with his mother. The Veteran did not socialize because he experienced anxiety in public. He had lost interest in activities he previously enjoyed, including fishing, golf, competitive shooting, tinkering in his shop, and the gym. The Veteran reported that he was permitted to quit his job as a police officer in 2015 in lieu of termination. His supervisor had referred him for several psychiatric evaluations, but the psychiatric provider would not release the Veteran to return to work. Currently, the Veteran owns a tractor and occasionally earns money by bush hogging. He also helps a friend once or twice per month doing unskilled labor for air conditioning repair. The Veteran stated that he had stopped taking his psychotropic medications and attending therapy. His symptoms included anxiety, chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events), flattened affect, impaired judgment, 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 worklike setting), inability to establish and maintain effective relationships, and obsessional rituals which interfere with routine activities. The examiner determined that the Veteran was capable of managing his financial affairs. With regard to the severity of the Veteran’s condition since June 1, 2011, the examiner noted that the Veteran was reportedly placed on medical leave in December 2015 due to his anger and excessive use of force, but his problems at work existed prior to that date and were tolerated by a different supervisor. The examiner observed that the Veteran was currently managing his anger through isolation and limitation of social interaction. He further stated that the Veteran would be likely to experience markedly impaired interpersonal relationships in a job setting due to his anger and irritability, with the possibility of impulsive physical aggression. The examiner also opined that the Veteran was likely to have difficulty accepting correction and criticism from a supervisor without an inappropriate display of anger, and he would likely be a distraction to coworkers because of psychologically determined behaviors. The Veteran has also submitted lay evidence in support of his claim. In a March 2012 statement, the Veteran reported difficulty with everyday activities, building and maintaining friendships, and marital problems. He further stated that trouble sleeping affected his attendance and performance, and he had been demoted at work due to his uncharacteristic behavior. In a November 2013 statement, the Veteran reported sleep problems, feeling angry often, worsening memory, and nervousness in large crowds, which caused him to call in sick or leave work early. Initial rating in excess of 30 percent prior to May 21, 2014 The Board finds that a rating in excess of 30 percent is not warranted prior to May 21, 2014. For the period on appeal, the Veteran’s PTSD was primarily manifested by depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, and impaired impulse control. Throughout this period, the Veteran reported depressed mood and anxiety. The Board finds that the Veteran’s total disability picture does not rise to a level contemplated by a 50 percent rating. The record does not demonstrate that the Veteran’s PTSD manifested in symptoms such as circumstantial speech, difficulty understanding complex commands, impaired abstract thinking, or impairment of short- and long-term memory (the Veteran’s memory loss was noted as only mild). The September 2011 VA examiner noted the Veteran had difficulty concentrating and periods of irritability or outbursts of anger. Though the Veteran reported two prior episodes of angry outbursts and physical aggression, these incidents took place prior to the claim period. Since that time, the Veteran reported improvement in managing his anger and aggression through exercise. From June 1, 2011 to May 21, 2014, the Veteran exhibited symptoms consistent with the 30 percent rating criteria. Apart from the September 2011 notation of irritability and angry outbursts, the Veteran’s total disability picture does not rise to a level contemplated by a 70 percent rating or a 100 percent rating. The evidence does not demonstrate total social impairment or an inability to establish and maintain effective relationships, as the Veteran played golf on a weekly basis with other police officers, and was close to his wife, father, and brother. He also enjoyed fishing, television, and church. While the Veteran’s PTSD had some occupational impacts, it did not rise to the level of total occupational impairment, as he was able to work during the period under consideration. Finally, for the period under consideration, the Veteran does not have a history of obsessional rituals, speech that is intermittently illogical, obscure, or irrelevant, near-continuous panic or depression affecting his ability to function, spatial disorientation, gross impairment in thought processes or communication; 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 or place; memory loss for names of close relatives, own occupation, or own name, or similar symptoms. The Veteran was found to have occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. As the Veteran’s symptoms were found to be mild prior to May 21, 2014, despite some difficulty in social and occupational functioning, he was generally functioning satisfactorily and had some meaningful relationships. The cumulative record of evidence reflects symptoms more closely approximated to a 30 percent rating during this period. Accordingly, the Board finds that the evidence of record weighs heavily against a finding of an initial rating higher than 30 percent prior to May 21, 2014. Rating in excess of 70 percent from May 21, 2014 The Board finds that a rating in excess of 70 percent is not warranted from May 21, 2014. For the period on appeal, the Veteran’s PTSD was primarily manifested by depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events), flattened affect, difficulty in understanding complex commands, impaired judgment, 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 worklike setting), inability to establish and maintain effective relationships, obsessional rituals which interfere with routine activities, impaired impulse control (such as unprovoked irritability with periods of violence), persistent delusions or hallucinations, and neglect of personal appearance and hygiene. The evidence of record does not show total occupational and social impairment as to warrant a 100 percent rating. While the Veteran has social impairment, it is not total, as he is still able to maintain relationships with his father and a social media friend. The Veteran does not have gross impairment in thought processes or communication or grossly inappropriate behavior, as he was noted to have logical thought process and a cooperative attitude. Although hallucinations were noted during the May 2014 VA examination, none were noted during the June 2018 VA examination or elsewhere in the record. As such, the Veteran does not suffer from persistent delusions or hallucinations. The Veteran has some mild memory loss, but he does not have memory loss for names of close relatives or his own name or occupation. Although the Veteran’s disability has some occupational impacts, it does not rise to the level of total occupational impairment. The medical evidence reflects that the Veteran is able to perform certain tasks such as managing his financial affairs. The Veteran also performs unskilled labor occasionally and uses his tractor for bush hogging. Additionally, a VA examiner noted the Veteran was well-groomed and appropriately dressed on examination. Furthermore, the Veteran has repeatedly denied suicidal and homicidal ideation throughout the appeal period and thus, there is no evidence of persistent danger of hurting himself or others. Given the foregoing, a 70 percent disabling evaluation is appropriate from May 21, 2014. The Board is aware that the symptoms listed under the 100 percent evaluation are essentially examples of the type and degree of symptoms for that evaluation, and that the Veteran need not demonstrate those exact symptoms to warrant a 100 percent evaluation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, the Board finds that the preponderance of the evidence, including the clinical findings, shows that the Veteran’s PTSD symptoms more nearly approximate occupational and social impairment with deficiencies in most areas. The May 2014 examiner indicated a level of occupational and social impairment consistent with a 70 percent rating, but also observed a single symptom from the 100 percent rating. The June 2018 examiner, however, indicated a level of occupational and social impairment consistent with only a 70 percent rating. The Veteran does not exhibit similar symptoms to those provided in the rating schedule for a 100 percent rating, of “similar severity, frequency, and duration.” See Vazquez-Claudio v. Shinseki, 713 F.3d 112,117 (Fed. Cir. 2013); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the Board finds that the evidence of record weighs heavily against a finding of rating of 100 percent from May 21, 2014. In reaching this decision, the Board has considered the Veteran’s lay statements in support of his claim. The Board notes that the Veteran is competent to report observations with regard to the severity of his symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds these lay statements to be credible and consistent with the ratings assigned. Accordingly, the Board finds that the evidence of record weighs heavily against a finding of a rating in excess of 70 percent from May 21, 2014. 2. TDIU The Veteran contends that he is unable to maintain gainful employment as the result of his service-connected disabilities. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” 38 C.F.R. §§ 3.340 (a)(1), 4.15. Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16 (a). Substantially gainful employment means, essentially, that the work provides income above the poverty level established by the United States Department of Commerce, without benefit of protected family employment or a sheltered workshop. 38 C.F.R. § 4.16 (a). A TDIU may be assigned where the schedular rating is less than total when the claimant 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, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16 (a). For the purpose of one 60 percent disability or one 40 percent disability, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16 (a)(2). For the Veteran to prevail on a claim for a TDIU, the sole fact that the Veteran is unemployed or has difficulty obtaining employment is not enough. 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. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In determining whether the Veteran is entitled to a TDIU, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. It is the policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation due to service connected disability shall be rated totally disabled. 38 C.F.R. § 4.16 (b). Thus, if a Veteran fails to meet the schedular requirements above, an extraschedular rating is for consideration where the Veteran is nonetheless unemployable due to service connected disability. 38 C.F.R. § 4.16 (b); Fanning v. Brown, 4 Vet. App. 225 (1993). The Board may not grant a TDIU pursuant to 38 C.F.R. § 4.16 (b) in the first instance. Rather, the matter must be referred to the Director of Compensation Service for extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1 (2001). The Veteran is service-connected for PTSD, rated as 30 percent disabling from June 1, 2011 and 70 percent disabling from May 21, 2014; tinnitus, rated as 10 percent disabling from June 1, 2011; bilateral plantar fasciitis, rated as 10 percent disabling from November 26, 2013; chronic intermittent elbow strain, rated as noncompensable from June 1, 2011 and 10 percent disabling from May 21, 2014; exercise induced asthma, rated as noncompensable from June 1, 2011; and tension headaches, rated as noncompensable from April 9, 2014. Accordingly, the Veteran met the threshold disability percentage requirements of 38 C.F.R. § 4.16 (a) as of May 21, 2014. The Board will not reproduce the medical evidence of record in its entirety in this section. Instead, this analysis will only focus on the evidence that pertains specifically to employment. The evidence of record indicates that the Veteran completed high school and previously worked as a police officer. He was placed on medical leave in December 2013 and resigned in 2015 in lieu of termination. He currently does occasional unskilled labor in air conditioning repair. The record also indicates that the Veteran’s military occupational specialty was cavalry scout, with combat experience. The Board notes that the Veteran did not return VA Form 21-8940 to provide additional information regarding his education and work history. The duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). Thus, information regarding the Veteran’s last date of employment and any other education or previous job experience information is not available, and the Board must come to a decision based on the available evidence in the file. In May 2014, a VA examiner determined that the Veteran’s elbow condition impacted his ability to work in that it impeded the Veteran’s ability to push and pull using his right arm, and interfered with his ability to use his gun or make arrests. The VA examiner also concluded that the Veteran’s asthma did not impact his ability to work. In June 2014, a VA examiner concluded that the Veteran’s foot condition impacted his ability to perform occupational tasks due to difficulty with activities involving prolonged standing, walking, and carrying weights. However, the examiner opined that these conditions would not impact his ability to work in occupations that did not involve such activities. Another VA examiner determined in June 2014 that the Veteran’s tension headaches did not impact his ability to work. As set forth above, the May 2014 and June 2018 VA examinations revealed occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The evidence of record does not show impairment so severe as to prevent the Veteran from securing and maintaining employment. Instead, the probative evidence of record does not demonstrate the Veteran is unemployable solely due to his service-connected disabilities. The Board considers the Veteran’s assertions that he is unable to work as a result of his service-connected disabilities, and recognizes that it must analyze the competency, credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir.1996) (table); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). The Board finds that the Veteran is competent to report symptoms such as pain, ringing in the ears, headaches, depression, and symptoms associated with PTSD. Although these statements are competent, they are nonetheless inconsistent with the most probative evidence of record, which does not show the Veteran is unemployable solely due to his service-connected disabilities. As such, the Board finds that the Veteran’s assertions of unemployability are outweighed by the most probative medical evidence of record, which indicates that his service-connected disabilities did not preclude him from obtaining substantially gainful employment due to functional impairment. Even if the Board deemed these statements credible, the most probative evidence of record outweighs the lay assertions that his service-connected disabilities preclude the Veteran from securing and maintaining substantially gainful employment. See, e.g. Madden v. Gober, 125 F.3d 1477, 1481 (1997) (the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration a veteran’s statements, it may consider whether self-interest may be a factor in making such statements). Here, the Veteran’s service-connected disabilities are not, in the Board’s determination, so severely disabling as to have rendered him or the average person similarly situated unable to secure or follow substantially gainful employment, nor does the most probative medical evidence of record reflect that his service-connected conditions rendered him individually unable to follow any substantially gainful occupation during that time. The Veteran’s impairment from his service-connected disabilities is reflected in the disability ratings he is already assigned, which acknowledge that the disabilities impair his earning capacity. However, this impairment is different than concluding that the Veteran is completely unable to secure or follow a substantially gainful occupation, which is simply not supported by the record. A TDIU pursuant to 38 C.F.R. § 4.16 (b) is not warranted in this case, nor is a referral for extraschedular TDIU consideration warranted for the period prior to May 21, 2014 when he did not meet the schedular criteria under 38 C.F.R. § 4.16 (a). The preponderance of the evidence is against the claim. As such, the appeal is denied. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Freeman, Associate Counsel