Citation Nr: 21005167 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 07-33 009 DATE: January 29, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) prior to June 8, 2010 is denied. FINDING OF FACT The Veteran’s service-connected disabilities did not produce total occupational impairment prior to June 8, 2010. CONCLUSION OF LAW The criteria for TDIU prior to June 8, 2010 are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the Army from February to June 1979, January to July 1991, and September to December 1994. The appeal originates from a November 2005 decision of a Department of Veterans Affairs (VA) Regional Office. The matter was previously remanded in June 2012 for a VA examination to determine the impact of the Veteran’s service-connected disabilities on his employability, which was obtained in August 2017. The Board again remanded the TDIU claim in September 2019 as being intertwined with a pending service connection claim for gastroesophageal reflux disease (GERD). A September 2020 rating decision granted service connection for GERD and the issue is no longer before the Board. There has been substantial compliance with the Remand directives. Entitlement to TDIU prior to June 8, 2010. VA will grant TDIU when the evidence shows that a veteran is precluded, by reason of service-connected disability, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such disabilities, to qualify for individual unemployability, there must 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. 38 C.F.R. § 4.16(a). The issue of the Veteran’s entitlement to TDIU from June 8, 2010 is moot because an August 2010 rating decision evaluated the Veteran’s PTSD as 100 percent disabling from June 8, 2010. The August 2010 rating decision also granted entitlement to special monthly compensation under 38 U.S.C. § 1114(s). See Bradley v. Peake, 22 Vet. App. 280, 291 (2008). Prior to June 8, 2010, the Veteran was service connected for generalized anxiety disorder with depression and PTSD rated 30 percent disabling; GERD rated 10 percent disabling; and noncompensable skin disorder itching with lichen simplex. His combined rating was 40 percent. He did not meet the schedular criteria for TDIU under 38 C.F.R. § 4.16(a). Therefore, the pertinent question is whether referral for extraschedular TDIU is warranted under 38 C.F.R. § 4.16(b). The Veteran contends that he was unable to obtain and maintain substantially gainful employment prior to June 8, 2010. See January 2021 Appellate Brief. He completed one year of college coursework and was employed as a janitor at a public school for approximately two decades until October 2006 when he suffered a musculoskeletal injury. See November 2003 and March 2007 VA Examinations; January 2007 Medical Treatment Records. He claims that he was unable to work thereafter. Based on the evidence, the Veteran is not entitled to TDIU prior to June 8, 2010. The record shows that his service-connected disabilities were not implicated in his loss of employment. Rather, he stopped working due to nonservice-connected musculoskeletal problems. Consideration has been given to the Veteran’s more recent assertions that his psychiatric disorder caused severe occupational impairment while he was employed, including violence and interpersonal conflict with coworkers and students. See December 2007 VA Examination. This statement is inconsistent with prior reporting. Indeed, when he was examined in November 2003, he denied having any problems at work and indicated that he enjoyed his employment. He reported that he had no interpersonal social problems with students or supervisors. Shortly after leaving his employment in November 2006, he denied being fired or suspended from a job due to difficulty getting along with others and offered no history of workplace conflict other than a vague statement that he had “discussions” with teachers. See January 2007 Medical Treatment Records. A January 2007 psychiatric evaluation determined that the Veteran was “capable of normal interpersonal relationships,” which is consistent with his longstanding employment and him living with his spouse and children despite reported problems. Id. The March 2007 and July 2007 stomach examinations noted mild symptoms with no effect on usual daily activities, while the December 2007 PTSD examination found that symptoms were controlled by continuous medication use. The Veteran reported a history of itching and rashes at the June 2010 skin examination, but there is no indication of resulting occupational impact. Even considered in combination, his service-connected disabilities were not so severe as to produce total occupational impairment prior to June 8, 2010. The Board notes the June 2010 PTSD examination reflecting a greater level of occupational impairment (a deficiency in work) than prior evidence. However, the examination report, even when considered with other evidence such as treatment records and lay statements from the Veteran and his spouse, does not provide a factually ascertainable date as to when such impairment arose. The Veteran’s lay reporting as to a history of occupational impairment is of questionable credibility (per the discussion above) and is afforded little weight, while other evidence is simply too generalized as to the frequency, severity, and duration of his symptomology to draw conclusions regarding his occupational functioning. The Board acknowledges the Veteran’s statements asserting entitlement to TDIU but affords greater weight to the objective evidence of record, which tends to show that his service-connected disabilities did not preclude substantially gainful employment prior to June 8, 2010. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Alhinnawi 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.