Citation Nr: 21021360 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 12-13 751 DATE: April 12, 2021 ORDER Entitlement to a total disability evaluation based on unemployability due to service-connected disabilities (TDIU) prior to January 28, 2014 is denied. FINDING OF FACT 1. The claim of entitlement to a TDIU arose from a claim of increased ratings for a right ankle disability, which the Veteran submitted on May 7, 2010. 2. The Veteran has been granted a TDIU for the period beginning January 28, 2014, the date that he met the schedular criteria for a TDIU. 3. For the period on appeal prior to January 28, 2014, the Veteran’s service-connected disabilities did not preclude him from securing and maintaining a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU for the period on appeal prior to January 28, 2014 have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.157, 3.340, 3.341, 3.400, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1960 to December 1963. The Veteran contends that he is entitled to an effective date prior to January 28, 2014 for his award of a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). This case comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions from September 2010 and September 2015 by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before a Veterans Law Judge in June 2014. Since that time, the Veterans Law Judge who held that hearing has retired and is no longer available to participate in this decision. The Veteran was informed of this fact and of his right to a hearing before another Veterans Law Judge in an April 2018 letter. The Veteran indicated in an April 2018 correspondence that he did not want another hearing in this matter. In April 2015, May 2017, August 2018, and July 2020, the Board remanded the case for additional development, and it now returns for further appellate review. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Earlier Effective Date for an Award of a Total Disability Evaluation Based on Individual Unemployability (TDIU) In a May 2012 statement, the Veteran asserted that he is entitled to an effective date of June 1, 1991, as that was the date he became unable to secure a substantially gainful occupation as a result of his service-connected disability. Generally, except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The Veteran’s claim of entitlement to a TDIU arose out of a claim for increased ratings for the Veteran’s service-connected right ankle degenerative changes, which the Veteran submitted on May 7, 2010. The Veteran first submitted a VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability (TDIU Application) in June 2010. In a September 2015 rating decision, the RO granted entitlement to a TDIU with an effective date of January 28, 2014. In response to the September 2015 rating decision, the Veteran submitted a notice of disagreement (NOD) in October 2015, and he indicated that he disagreed with the effective date of the award of a TDIU. The Board finds that none of the Veteran’s communications prior to May 7, 2010 may be considered an informal claim for an increased rating for the Veteran’s right ankle disability. Thus, no informal claim as defined by 38 C.F.R. § 3.157(b) was received prior to May 7, 2010. Therefore, as the Veteran’s claim for a TDIU arose from his continuous pursuit for the claim of increased ratings for the right ankle disability, the appeal period begins on May 7, 2010, the date the Veteran submitted the relevant claim. See also Rice v. Shinseki, 22 Vet. App. 447 (2009). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is 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, such disability shall be ratable as 60 percent or more, and if there are two or more 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. 38 C.F.R. § 4.16(a). Rating boards should submit to the Director of Compensation Service for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran’s master’s degree in education and his part-time work as a tutor). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the United States Court of Appeals for Veterans Claims (Court) held that the initial extra-schedular referral decision under § 4.16(b) should address whether there is “sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities”. Moreover, the Court defined the term “unable to secure and follow a substantially gainful occupation” in § 4.16(b) to include two components: one economic and one noneconomic. The economic component means an occupation 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. The non-economic component includes consideration of the veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. As noted earlier, the appeal period begins on May 7, 2010, the date of the Veteran’s claim for increased ratings for a right ankle disability, and ends on January 28, 2014, the date a TDIU was awarded. For such period, service connection has been established for right ankle degenerative changes, evaluated as 20 percent disabling as of May 7, 2010, and 30 percent disabling as of November 25, 2013; low back degenerative changes and degenerative disc disease, evaluated as 10 percent disabling as of May 7, 2010, and 20 percent disabling as of August 1, 2012; right knee degenerative changes evaluated as 10 percent disabling as of May 16, 2012; left knee degenerative changes evaluated as 10 percent disabling as of May 16, 2012; and acne vulgaris evaluated as 10 percent disabling for the entire period on appeal. Thus, for the period on appeal between May 7, 2010 and May 16, 2012, the Veteran has a combined disability evaluation of 40 percent. For the period on appeal between May 16, 2012 and August 1, 2012, the Veteran’s combined disability evaluation is 50 percent. For the period between August 1, 2012 and January 28, 2014, the Veteran’s combined disability evaluation is 80 percent. Based on the above, the Veteran does not meet the schedular threshold for consideration of a TDIU during the period on appeal between May 7, 2010 and January 28, 2014. The question in this case is whether the Veteran’s service-connected disabilities precluded him from participating in substantially gainful employment during the period on appeal prior to January 28, 2014. The Board notes that, in the August 2018 and July 2020 Board decisions, the Board remanded the issue in order to submit the case to the Director of Compensation Service for extraschedular consideration of an award of TDIU for the period prior to January 28, 2014. The Director of Compensation Service issued an Advisory Opinion for extraschedular consideration of TDIU in December 2020. In the May 7, 2010 claim of increased ratings for a right ankle disability, the Veteran stated that he has not been able to work since June 10, 1991. In the Veteran’s June 2010 TDIU Application, the Veteran stated that his right ankle and back disabilities prevent him from securing or following any substantially gainful occupation. He reported that his disability affected full-time employment on June 10, 1991, and he stated that was also the date that he became too disabled to work. He last worked full-time on June 9, 1991; and the most he had ever earned in a year was $35,000.00 in 1991 when he worked as a junior high school math teacher. He stated that he left his last job because of his disability. He also stated that he has not tried to obtain employment since he became too disabled to work. He completed a college education, and he has not had any other education or training before or since he became too disabled to work. In a June 2010 statement, the Veteran reported that, while on his way to work on June 10, 1991, his right ankle was not strong enough to keep him from falling, and he severely hurt his back. He stated that he has missed his work for about 20 years, and he has missed many things he used to do. In a September 2010 NOD, the Veteran stated that, before his accident, he had a good job making $33,000.00 a year; and his injury prevented him from continuing to work. In a July 2012 TDIU Application, the Veteran reported that his right ankle, back, left knee, and right knee prevent him from securing or following a substantially gainful occupation. He reported that his disability affected full-time employment in June 1991, and he stated that was also when last worked full time and when he became too disabled to work. He stated that the most he had ever earned in a year was $28,000.00 in 1991 when he worked in education. The Veteran reported that he was last employed in a county school district as a junior high school math teacher; and in that position, he worked 40 hours a week from August 1990 to June 1991. Prior to that, he worked in another public school system from August 1987 to June 1990, and he worked in another public school system from August 1980 to June 1989. He stated that he left his last job because of his disability. He also stated that he has tried to obtain employment since he became too disabled to work, but he did not list the employers he applied to. He reported that he completed at least three years of college, and he completed training in secondary education administration between 1965 and 1970. He reported that he has not had any other education or training since he became too disabled to work. In an August 2015 TDIU application, the Veteran reported that his ankle, back, and knees prevent him from securing or following any substantially gainful occupation; and he noted that he has completed a college education. He reported that his disability affected full-time employment on June 10, 1992, and he stated that was also the date that he became too disabled to work. He last worked full-time on June 9, 1992; and the most he had ever earned in a year was $33,095.00 in 1991. The Veteran reported that he was last employed in a county school district as a math teacher. In that position, he worked from August 1991 to June 1992, and his highest gross earnings per month was $2,600.00. Prior to that, he worked in another public school system as a math teacher from August 1984 to June 1990. He worked in another public school system from August 1982 to August 1983, and he worked in another public school system from August 1980 to June 1981. He stated that he left his last job because of his disability. He also stated that he has not tried to obtain employment since he became too disabled to work. The record reflects that the Veteran has received Social Security Administration (SSA) disability benefits. In an application for Social Security Administration (SSA) disability benefits, the Veteran reported that, in his work as a teacher, he also taught computer science and government, and he was a high school assistant principal and a community college teacher. Additionally, he worked for a state department of corrections as a correctional officer in inmate supervision from June 1987 to November 1991, and he earned $14,000.000 in that position. He also worked as a systems analyst manager for state human services from June 1980 to July 1981, and he earned $18,000.00 in that position. He also reported that he worked as a general office manager for a construction company from June 1987 to December 1989, and he earned $15,000.00 in that position. In the SSA Disability Determination, the Veteran’s primary diagnosis is related to his back disability. The related decision reports that the Veteran has a 12th grade education and a varied work background, and he has not engaged in substantial gainful activity since June 10, 1991. The decision states that the Veteran had obvious impairments capable of producing pain; and as a consequence, the Veteran has stated that he is impaired in his ability to perform exertional work activities. The decision further stated that the Veteran’s past relevant work is considered sedentary to heavy and semi-skilled to skilled in nature. The SSA found that the Veteran is not and has not been capable of returning to any category of his prior work. The claimant would be found “not disabled” solely on the basis of the relevant vocational factors and the ability to perform at least a full range of sedentary work. However, considering the significant limitations the claimant has on his ability to perform work activities within the framework of SSA regulations, there are not a significant number of jobs existing in the national and regional economies which the claimant can perform on a sustained basis. Thus, the SSA found that the Veteran has been disabled since June 10, 1991, and he was entitled to SSA disability benefits. At a June 2010 VA examination for the ankle, the Veteran reported that his usual occupation was as a math teacher and school principal, and he retired in 1991 because of low back pain from a right ankle injury. At a September 2010 VA examination for the back, the Veteran reported that he had been a math teacher and a surveyor for a highway department. In the Veteran’s November 1992 application for SSA disability benefits, the Veteran stated that he has not been able to work at his usual job as a math and computer science teacher because of his back injury. He is unable to stand for long periods of time, and he is unable to do the job he was trained to do and did for the last 20 years. In a March 2012 statement, the Veteran stated that his ankle injury has caused him many problems over the years, including the loss of a good paying job in 1991; and he has been unable to return to work since then. He stated that his ankle injury affects how he walks, as he is always worried about falling. He also stated that his ankle has caused his inability to work. It has restricted his way of life and prevented him from doing many things he would like to do. The Veteran further stated that his ankle going out has caused him to severely strain his left knee, and it has caused severe pain in his right knee, leaving him unable to do much. In a May 2012 statement, the Veteran stated that his right ankle disability has caused him many physical problems. He always feels guarded. The injury affects how he walks because he is always worried about falling. He stated that his gait has gotten notably worse over the years, and it is very apparent to himself and his family. He noted that the disability prevents him from doing many of the things he would like to do but cannot do, such as walking in the mountains. In a July 2012 buddy statement, the Veteran’s daughter, MF, reported that, over the past several years and more noticeably now, she has observed a considerable change in the Veteran’s ability to walk independently. His steadiness seems to be faltering, and he has an overall decline in his physical abilities. In another July 2012 buddy statement, another of the Veteran’s daughters, ER, stated that there has been a steady decline over the years in the Veteran’s ability to walk independently. He requires a cane and sometimes a walker due to his unsteady gait. In another July 2012 buddy statement, another of the Veteran’s daughters, LR, reported that the Veteran has had limited mobility for as long as she can remember. His ankle injury has caused him to fall and have near falls on several occasions. LR noted that the Veteran’s walk seems to be getting more and more guarded as he gets older. LR reported that she has spent the majority of her adult life helping to take care of the Veteran. They have lived together so she can assist him with everyday activities that he is unable to do because of his injuries. She stated that he has missed out on several family functions, travel, and a lot of other overall enjoyment that he should be having. He complains of pain in his ankle, knees, and back; and he sometimes has a hard time getting comfortable enough to sleep. She stated that the Veteran used to lead a very active lifestyle, and for the past 20 years, he has been unable to get out and do much of anything. For example, gardening was a passion of his, but he now has to get help from his daughter and other family members to do simple things such as plant a garden because he is unable to be on his knees and bend over without pain. The Veteran also has nine grandchildren that he has missed out on quality time with because he is unable to get out and play or run around with them. In a July 2012 statement, the Veteran reported that, in June 1991, while on his way out of his apartment, his right ankle gave out and caused him to fall on and severely injure his back. He was then placed on SSA disability benefits, and he has been unable to work since. In February 2012, his right ankle gave out again, causing him to severely strain his left knee and contributing to severe pain in his right knee. He stated that, since this fall, he has been unable to do much. He has felt secluded and unable to live an active life. He stated that his service-connected disability has greatly reduced the quality of life he has lived for the past 20 years, causing him to need to live with his daughter for assistance in everyday activities. In another July 2012 statement, the Veteran reported that his gait is making things worse for him with constant pain and mental anguish. He is always guarded, and he has been assigned a walker and a cane. At the June 2014 Board hearing, the Veteran stated that his ankle condition is keeping him from doing the things he normally used to be able to do, and his quality of life has diminished quite a bit. For example, he used to garden, take walks or hikes, and ride a bicycle. He can no longer do much gardening because he cannot kneel. He still does some swimming. He reported that he cannot stand for long periods of time. When he worked as a teacher, he would stand in front of a chalk board and talk to the students, and he would walk around as a school principal; but he cannot do those things anymore. At a June 2010 VA examination for his ankle disability, the Veteran reported that his ankle has increased pain and decreased mobility. The examiner observed that the Veteran had symptoms of giving way, instability, pain, stiffness, weakness, incoordination, decreased speed of joint motion, locking episodes one to three times a month, repeated effusions, and warmth, redness, swelling, and tenderness with inflammation. The condition affected the motion of the ankle joint. The Veteran reported having moderate flare-ups every one to two months that last hours. Precipitating factors for flare-ups included walking. The Veteran stated that, during flare-ups, he cannot walk, and his activities are limited. He was able to stand more than one hour but less than three hours, and he was unable to walk more than a few yards. He had an antalgic gait. He had intermittent but frequent use of a cane. The ankle disability reportedly impacted occupational activities in that it caused decreased mobility, problems with lifting and carrying, decreased strength in the lower extremity, and pain. The resulting work problem was increased absenteeism. The ankle disability had a moderate effect on chores, exercise, sports, and recreation; and it had a mild effect on shopping, traveling, and driving. In a July 2010 VA Primary Care Note, the Veteran reported pain in his right ankle at times with a snapping or popping noise. He noted that he is still very active, and he does water aerobics for exercise. In a December 2010 VA Primary Care Note, the Veteran reported that he is very active, and he exercises daily. In a July 2011 VA Primary Care Note, the Veteran reported that he exercises daily with weights and aerobic activity, and he also swims. In a December 2011 letter, the Veteran’s private physician, Dr. CM, stated that the Veteran complains of daily pain in the right ankle with instability resulting in sudden falls. The pain was predominantly experienced in the lateral aspects of the ankle. His ankle pain has limited the amount of time that weight-bearing, walking, and general physical activity can be tolerated. At an August 2012 VA examination, the Veteran reported that his ankle continued to snap or give out and cause knee pain, and he was unable to walk without a cane for support. The examiner found that the Veteran’s ankle condition impacted his ability to work in that he has difficulty walking or standing for prolonged periods of time; but his ankle condition should not affect sedentary work. In a November 2013 VA examination, the Veteran reported that he suffers pain and instability in the ankle with resultant falls. The VA examiner found that the Veteran’s ankle condition impacted his ability to work in that he has to limit walking to one block; and he cannot squat, run, jump, or jog. In a September 2010 VA examination for the back, the Veteran reported that he can walk half a block. He does not use a treadmill, and he rarely uses a stationary bike. He is only able to do mild hand weights when lying on his back. He does almost no chores at his daughter’s home where he lives due to his back and right ankle. The VA examiner observed symptoms of pain across the lower back, leg or foot weakness, unsteadiness, urinary incontinence, nocturia, and erectile dysfunction. The Veteran also had a history of fatigue, decreased motion, stiffness, and spasm. The onset of pain was associated with forward bending and prolonged standing. The pain was stinging and moderate, and it lasted a few minutes. Pain occurred one to six days a week. The Veteran’s gait was slow and abnormal with a limp favoring the right side. He was reported to take short steps with the use a cane. The VA examiner stated that the back disability’s effects on usual daily activities included that he does not pick objects off the floor, and he does not lift more than light weights. At an August 2012 VA examination, the Veteran described a pressure sensation in his back when he was sitting or lying improperly. He stated that prolonged standing worsened his back pain, such as when standing at a blackboard or walking around the school as a principal. The VA examiner found that the Veteran’s back condition impacted his ability to work, and any work that involved prolonged walking or standing would be affected. However, the VA examiner found that the Veteran’s back condition should not affect sedentary work. In the December 2011 letter, Dr. CM stated that the Veteran has daily lumbar pain. In an August 2013 private treatment note, the Veteran stated that his back symptoms intensify when getting out of bed and when lying quietly at night. He denied numbness or bladder symptoms. In a January 2014 private treatment note, the Veteran reported that he had low back pain. He had trouble walking up the stairs; he could do 10 steps maximum with pulling himself up on the railing. He reported flare-ups twice a month lasting two or three days. In a January 2014 private disability benefits questionnaire (DBQ), the Veteran reported chronic low back pain and flare-ups that impact the function of the thoracolumbar spine. The examiner reported that the Veteran had symptoms of less movement than normal, pain on movement, atrophy of disuse, and mild tenderness of the thoracolumbar spine. At an August 2012 VA examination, the Veteran reported pain in both knees. He stated that he gets pain in the posterior aspect of the left knee if he puts too much pressure on that leg. He described the pain as sharp pain rated as 7 out of 10 on the right and 5 out of 10 on the left. The pain was relieved by medication and over-the-counter pain relievers. He stated that prolonged walking or any activity that puts pressure on the knee will precipitate pain. He also stated that his right knee continues to crack, and he was issued a walker to assist with walking. In a February 2012 private treatment note, the Veteran reported that, a couple weeks before, he slipped and fell on an icy sidewalk when his right ankle gave out. He had immediate pain in both knees with swelling developing in the left knee. Both knees remained painful, and he felt his left knee was weak. He noted that he lives with his three daughters and their children. He had nine grandchildren, and he was very involved with childcare. In a March 2012 VA Orthopedic Surgery Consult, the Veteran reported an onset of left knee pain since slipping on the ice in February. He had acute knee pain, swelling, and stiffness; the knee pain and swelling had decreased but was still uncomfortable. He reported pain with prolonged walking, and he had intermittent buckling. In a July 2012 VA Orthopedic Surgery Consult, the Veteran reported pain with prolonged sitting, standing, and walking. In an August 2012 VA Primary Care Note, the Veteran reported that his knee pain had been limiting the things he can do with his grandchildren. In an August 2012 Physical Medicine Rehabilitation Consult, the Veteran reported that he does not get out and do as much as he used to. He picks up his grandchildren from school and participates in water aerobics. In a March 2013 VA Primary Care Note, the Veteran reported bilateral knee pain. He reported using a cane for long distance walking, and he denied nighttime knee pain. In a September 2013 VA Primary Care Note, the Veteran reported that he is still very active, and he does water aerobics three times a week. In a June 2013 private treatment note, the Veteran reported daily knee pain with pain on the right side that was greater than pain on the left side. In a July 2013 private treatment note, the Veteran complained of bilateral knee pain, with the pain that is greater on the right, for several years. He had pain, swelling, giving way, and popping that had gone on for years. The examiner noted that the Veteran moved under his own power with no assistive devices, but he walked with a slight limp. He had pain in the medial joint lines and lateral joint lines. In a November 2013 private treatment note, the Veteran reported knee pain and occasional swelling. In an August 2013 letter, the Veteran’s private physician, Dr. CM, reported that the Veteran has frequent falls, striking his knees, and he suffered from lumbar spine strains and arthritis. He had residual pain and disability in his right ankle, and his right ankle caused unexpected falls when he was ambulatory. At a November 2013 VA examination, the Veteran reported that he has pain and instability in the right ankle with resultant frequent falls and injuries to his knees. He stated that he has an uneven gait due to ongoing right ankle pain that has caused chronic strain on his knees. He stated that walking precipitates knee pain. He noted that the knee pain has somewhat decreased with pain medication, but he is still uncomfortable. He uses crutches for support. The Veteran reported that flare-ups impact the function of his knee with impairment in standing and walking. The VA examiner found that the Veteran’s knee condition impacts his ability to work in that he has to limit walking to a block and standing to 10 minutes. He cannot squat, run, jump, or jog. He also has problems using the stairs. In an August 2012 VA examination for the Veteran’s acne vulgaris, the VA examiner found that the Veteran’s skin condition does not affect his ability to work. The Board has reviewed the balance of the Veteran’s other medical treatment records from the relevant period on appeal prior to January 28, 2014. The findings in the other medical treatment records are substantially similar to those noted in the VA examination and other treatment records described above. In December 2020, the Director of Compensation Service issued an Advisory Opinion concerning extraschedular consideration of a TDIU for the period on appeal prior to January 28, 2014. The Director observed that the Veteran stopped working as a mathematics teacher in 1992, and he left work due to his right ankle and knees. He has also been in receipt of SSA disability benefits, effective June 10, 1991 with a primary disability of disorders of the back. The Director also reviewed the relevant VA and private medical records. The Director found that, while the Veteran has limitations caused by service-connected conditions, the cumulative evidence does not support a finding of extra-schedular TDIU based on service-connected conditions. The cumulative evidence does not support that the Veteran’s service-connected conditions precluded all forms of substantially gainful work activity prior to January 28, 2014. Based on the evidence as described above, the Board finds that, although the Veteran’s service-connected disabilities may have negatively impacted his employability during the period on appeal prior to January 28, 2014, they did not preclude him from securing and maintaining a substantially gainful occupation. The Board acknowledges that the functional impairment associated with the Veteran’s service-connected disabilities include difficulty with prolonged standing and walking, as well as difficulty kneeling, squatting, climbing stairs, running, jumping, or jogging. However, the evidence of record indicates that the Veteran has a college education; and he has experience teaching mathematics, computer science, and government in junior high school, high school, and community college. He is not precluded from performing work that primarily involved desk work and only required minimal physical exertion. He is not prevented from participating in occupations that allowed for frequent breaks and other accommodations for his physical limitations. The Veteran’s educational and work background is not so limited as to have precluded occupations of the nature described above during the period on appeal. The preponderance of the evidence from the period on appeal prior to January 28, 2014 does not demonstrate that the Veteran’s symptoms from his service-connected disorders would have prevented him from securing or maintaining gainful employment. The Board finds that the Veteran’s service-connected disabilities did not preclude him from performing the physical and mental acts necessary to secure and maintain a substantially gainful occupation consistent with his educational and occupational background. Therefore, based on the foregoing, the Board finds that an award of a TDIU for the period on appeal prior to January 28, 2014 is not warranted in this case. In reaching such a determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Z. SAHRAIE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dawn A. Leung, 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.