Citation Nr: 25003097 Decision Date: 03/04/25 Archive Date: 03/04/25 DOCKET NO. 10-32 276 DATE: March 4, 2025 ORDER Entitlement to an effective date earlier than January 13, 2016, for the award of a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran's service-connected disabilities did not render him unable to secure and follow a substantially gainful occupation prior to January 13, 2016. CONCLUSION OF LAW The criteria for entitlement to an effective date earlier than January 13, 2016, for the award of a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training (ACDUTRA) from July 1999 to March 2000, with additional periods of ACDUTRA and inactive duty for training (INACDUTRA). The matter is before the Board on appeal from several rating decisions issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran provided sworn testimony before the undersigned Veterans Law Judge at a January 2018 Board Hearing held via videoconference. The Veteran's spouse was also present and gave testimony at that hearing. A copy of the hearing transcript has been associated with the Veteran's electronic claims file. The Board denied the above-listed claim in a February 2023 Board Decision. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (CAVC), and the CAVC granted the parties' November 2023 Joint Motion for Remand (JMR). After receiving additional evidence from the Veteran, a May 2024 Board decision remanded the matter for further development and readjudication. The matter has now returned to the Board. The Veteran has not raised any specific issues with the duty to notify or duty to assist, or with the conduct of his Board hearing. No additional evidence or argument has been received since the January 2025 Supplemental Statement of the Case (SSOC) or, in fact, since the May 2024 Board decision. The Veteran has been awarded a total disability rating based on individual unemployability (TDIU) effective January 13, 2016. He seeks entitlement to a TDIU prior to that date. As discussed in the October 2019 Board Decision and Remand, the issue of TDIU was raised in connection with the increased rating knee claims previously on appeal, so the period at issue extends from September 2008 (the date of his claims for increased ratings for his right knee) to January 13, 2016. While the issue is stated as entitlement to an effective date earlier than January 13, 2016, the factual and legal issues necessary to the determination are whether he met the criteria for a TDIU. The fact that he had a pending claim during this period is not disputed. See Harper v. Wilkie, 30 Vet. App. 356 (2018) (holding that a grant of TDIU for a portion of the appeal period does not bifurcate the appeal and, therefore, is considered a partial grant of the benefit sought). A Veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating may be assigned where the schedular rating is less than total when the disabled person 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, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system (orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric), (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16 (a). In this case, during the period at issue, the Veteran had a combined 60 percent rating based on the service-connected conditions of dysthymic disorder (30 percent), left ankle (20 percent), right knee DJD (10 percent), and right patellar subluxation (10 percent). These disabilities do not meet the criteria to be considered a single disability rated at 60 percent and, so, do not meet the criteria for a schedular TDIU. If a claimant does not meet the threshold criteria, a total disability evaluation may still be assigned, but on a different basis. 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 shall be rated totally disabled. 38 C.F.R. § 4.16(b). The rating boards are required to submit to the Director, Compensation and Pension 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). Id. The United States Court of Appeals for Veterans Claims (Court) has held that, pursuant to Ray v. Wilkie, 31 Vet. App. 58,66 (2019), the proper standard for whether referral of an extraschedular TDIU claim to the Director, Compensation and Pension Service, is warranted is "whether there's sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable because of service-connected disabilities." Snider v. McDonough, 35 Vet. App. 1, 10 (2021). The Board, in its May 2024 decision, determined that the evidence was sufficient to raise a reasonable possibility that he was unemployable because of service-connected disabilities prior to January 13, 2016, and, therefore, directed the RO to refer the claim of entitlement to a TDIU to the Direct, Compensation and Pension Service, for extraschedular consideration. The Director of Compensation Service determined the overall evidence fails to support the contention that any of the service-connected disabilities or a combination of the effects of those disabilities support and exceptional situation that prevents gainful employment. See January 2025 Advisory Opinion : Extra-Schedular Consideration Under 38 C.F.R. § 4.16(b). The matter has now returned to the Board. The Board notes that the Advisory opinion is not evidence and is not binding on the Board. Moreover, the fact that the Board previously determined such referral was warranted does not mean the claim will succeed on the merits, because the standard for referral is necessarily "based on a[n] evidentiary threshold that is lower than that for the decision to award an extraschedular rating." See Ray v. Wilkie, 31 Vet. App. 58, 62 (2019) (holding that the Board is not bound to grant an extraschedular benefit even if the Board itself previously determined that referral to the Director was appropriate); see also Anderson v. Shinseki, 22 Vet. App. 423, 427-429 (2009) (discussing why initial determinations in extraschedular analysis by the regional office and determinations by the Director are not binding on the Board even if favorable to the Veteran). The determination that the evidence was sufficient to trigger the Veteran's procedural right to referral to the Director for extraschedular consideration did not involve a weighing of the favorable and unfavorable evidence to make a final determination on entitlement to extraschedular TDIU. Therefore, the Board has made its own determination regarding whether the elements of a claim of entitlement to extraschedular TDIU were met prior to January 13, 2016. In determining unemployability for VA purposes, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. The sole fact that a 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 he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). The evidence is inconsistent as to when the Veteran last worked. On the October 2016 VA Form 21-8940 (Application for Increased Compensation Based on Unemployability), he reported he last worked in April 2010. However, it was also noted he had worked as an automotive technician between 2005 and 2008, and at an October 2008 VA mental health examination, he stated he had lost his job as an auto mechanic due to physical disabilities. However, when applying for benefits with the Social Security Administration (SSA), he stated he worked 5 days per week for the military between 1998 and March or April 2010, in transportation/logistics for VIPs. See also February 2011 VA examination (indicating unemployment for roughly one year). It appears from his VA vocational rehabilitation documents that he was working at a military base in 2008, but in a civilian capacity, as an automotive mechanic. A psychiatric evaluation done for SSA in 2014 by Dr. S.C. indicated he was a "stable" worker until 2010. However, his earnings statement from SSA shows earnings in 2009 were marginal in nature, with barely any earnings in 2010. Therefore, the Board will consider TDIU from 2009 to 2016. As for the period on appeal prior to 2009 (again, the increased rating knee claims on appeal were received in September 2008), the SSA earnings report shows gainful wages in 2008 and there is no allegation or suggestion in the evidence his 2008 employment was in a protected environment, The Veteran relies primarily on the finding of the Social Security Administration (SSA) that he was disabled for SSA benefits purposes as of November 4, 2012. See January 2018 Board Hearing Tr. at 3-4; July 2020 Brief on TDIU. Importantly, SSA determinations are not binding on the Board, and it is the duty of the Board to assess the credibility and weight to be given such evidence. See Washington v. Derwinski, 1 Vet. App. 459, 465-66 (1991); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see also Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992) (finding that SSA determinations should be given appropriate consideration and weight in determining to award or deny an appellant TDIU). The initial SSA determination was that the Veteran's primary diagnosis was a back disorder and his secondary diagnosis was an affective disorder. See September 2011 Disability Determination and Transmittal (finding that the claimant was not disabled). The Veteran appealed the initial denial. A January 2017 SSA Decision by an administrative law judge (ALJ) found that the Veteran was disabled for SSA purposes since November 4, 2012. In discussing the reasons for the determination, the ALJ concluded that he need not "delve in detail into physical condition as mental condition suffices for a favorable [decision.]" The ALJ placed emphasis, in particular, on the opinion of Dr. R.F., who diagnosed the Veteran with major depressive disorder and concluded that the Veteran's occupational functioning was markedly limited as of November 4, 2012. The October 2019 Board Decision and Remand exhaustively discussed the evidence regarding the symptoms and functional limitations caused by the Veteran's service-connected psychiatric disability and made a determination that, prior to January 13, 2016, "the Veteran's psychiatric symptoms were mild in severity" and warranted a 30 percent rating under VA's rating schedule. The 30 percent rating assigned for the period prior to January 13, 2016, indicates the psychiatric disability caused 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 normal conversation). 38 C.F.R. § 4.130. Thus, the Board has previously concluded that, prior to January 13, 2016, the Veteran's psychiatric disability caused only occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Veteran did not appeal this determination, so it became final. The Board incorporates and adopts the analysis contained in the October 2019 Board Decision and Remand regarding the overall impairments caused by the Veteran's psychiatric disability as if set forth herein. With that level of impairment, the Veteran's psychiatric disability alone would not render him unable to obtain or maintain gainful employment. The parties agreed in the November 2023 JMR that the Board should provide additional discussion of the mental impairments caused by the Veteran's service-connected dysthymic disorder and depressive disorder consistent with the framework described by the Court in Ray v. Wilkie, 31 Vet. App. 58, 72 (2019). In particular, the JMR noted that the Board "must give 'attention' to factors that may affect the veteran's 'mental ability to perform the activities required by the occupation at issue,' such as 'the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity.'" See November 2023 JMR (quoting Delrio v. Wilkie, 32 Vet. App. 232, 239-40 (2019) (applying the factors discussed in Ray)). The October 2008 VA examination (conducted prior to the relevant time period as the record supports finding the Veteran was gainfully employed until 2009) documented the Veteran's report of poor concentration and sleep impairment, but opined that the Veteran had no problem with activities of daily living and stated the Veteran had no mental impairment for performance of daily activities. The examiner noted average intelligence and normal remote, recent, and immediate memory. The examiner documented the Veteran's denial that his mental disorder caused his most recent unemployment and further noted that the Veteran's physical disabilities (including back and knees) caused his most recent unemployment. The examiner opined that the Veteran had mental disorder signs and symptoms that are transient or mild and decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. The opinion reflects that the Veteran's limitations due to his psychiatric disorder did not impair his ability to perform the activities required by the occupations for which he was suited by education, training, and experience, particularly including being an auto mechanic and/or a driver. The May 2010 VA examination documented unremarkable thought processes, unremarkable thought content, and average intelligence. The VA examiner noted the Veteran did not have a sleep impairment, inappropriate behavior, or obsessive/ritualistic behaviors. The Veteran had good impulse control, could maintain his personal hygiene, and had no problem with activities of daily living. His memory was normal in all respects. The examiner opined that the Veteran had no impairments in occupational or social functioning due to his psychiatric condition because his "mental disorder symptoms are controlled by continuous medication." The May 2010 VA examiner's opinion is wholly against finding that the Veteran's psychiatric disorder impaired his ability to perform the activities required by the occupations for which he was suited by education, training, and experience, particularly including being an auto mechanic and/or a driver. The examiner found that the Veteran did not have the sorts of limitations due to psychiatric symptoms identified in Ray and Delrio (e.g., problems concentrating, ability to adapt to change). The Board acknowledges an August 2013 private mental health note indicating, without further elaboration or explanation, "afflictive and confused behavior, suicide risk." This note conflicts with other evidence of record, particularly including VA examinations. Furthermore, without elaboration, it is impossible to determine what the physician meant, including the nature, severity, and frequency of "afflictive and confused behavior." While it is one point of data, it is largely inconsistent with the overall mental health picture to the extent it is interpreted as implying inability to manage daily affairs or perform the sorts of activities required in gainful employment. VA treatment notes from the same period indicate significantly fewer impairments and symptoms of much less severity. A July 2013 VA mental health note documents marital counseling with "mild deterioration" of symptoms, but also adequate hygiene, cooperative attitude, normal speech, coherent/logical/goal-directed thought processes, normal thought content, normal perception, poor recent memory, good judgment, and good insight. An August 2013 VA mental health note documents that the Veteran had clear and productive speech, tangential thought processes, normal thought content, fair insight, fair judgment, and good memory. The treating psychiatrist notes the Veteran "is more stable than previously and not reporting any particular symptoms." The June 2015 VA examination is the most recent VA examination during the period under consideration. The examiner opined that the Veteran had 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 medication. The examiner noted adequate hygiene and appropriate dress, fluent speech, no perceptual disturbances, normal thought content, and described his thought processes as coherent, relevant, and logical. The Veteran had preserved immediate, recent, and past memory as well as good judgment and insight. The Veteran presented as sad with affect congruent with mood. The examiner indicated that the Veteran did not have any other symptoms and that he was competent to handle his financial affairs. The examiner opined that the Veteran had been in stable condition since May 2010, was able to manage his own medication, took care of his family, was "adapting to his 'physical situation', and otherwise was able to handle his normal daily activities. This examination is consistent with the May 2010 VA examination and the intervening and subsequent VA treatment records which indicate that the Veteran's psychiatric condition did not impair his ability to perform the activities required by the occupations for which he was suited by education, training, and experience, particularly including being an auto mechanic and/or a driver or engaging in sedentary employment that utilizes his knowledge and work experience in those fields as discussed more fully below. The VA examinations and the VA treatment records generally document and indicate that the Veteran did not have the sorts of limitations due to psychiatric symptoms identified in Ray and Delrio (e.g., problems concentrating, ability to adapt to change). This is supported by the 2010 and 2015 VA examiners' summation of his social and occupational functioning as, at most, mildly impaired as well as their specific findings with respect to things like memory. The Board acknowledges that treatment records would occasionally note, for example, "poor recent memory", but at prior and succeeding mental health appointments, his memory would be described as good. This is consistent with the VA examiners' conclusions that the Veteran had occupational impairment due to "mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress." The record reflects that, although the symptoms would occasionally impact memory or concentration, during this period the symptoms were mild and/or transient and that, ordinarily, the Veteran's psychiatric condition did not preclude him from performing the types of activities required by gainful employment. Subsequent VA treatment records further support this finding. An October 2015 VA psychology note documents sadness and irritability due to his physical disabilities. The examiner documented adequate hygiene and appropriate dress, a cooperative and reasonable attitude, normal speech, anxious mood, affect congruent with mood, thought processes that were normal, coherent, and logical, normal thought content, good insight and judgment, average fund of knowledge, and intact memory. An October 2015 VA nursing note documents intact immediate, recent, and remote memory. Another October 2015 VA psychology note documents that the Veteran had coherent and logical thought content and process, "good" memory, and had mood and affect congruent with content of speech. A December 2015 VA progress note written by a psychologist documented that the Veteran exhibited adequate hygiene and was dressed appropriately, he was cooperative, alert and attentive, he was severely irritable with tangential thoughts, but with normal thought content, no abnormality of perception, good judgment, and fair insight. The Veteran reported poor memory, but the psychiatrist did not test the Veteran's memory or provide her own assessment. On January 13, 2016, the date he has been awarded a TDIU, the Veteran was admitted to inpatient psychiatric care. In summary, the VA examinations and VA treatment records assessing the Veteran's psychiatric symptoms and mental impairments do not document problems with memory, concentration, ability to adapt to change, handle work place stress, or get along with coworkers, and tend to indicate reliability and productivity. See Delrio, 32 Vet. App. at 239-40 (applying and identifying the sorts of factors Ray instructed the Board to consider). In making the above finding on memory, the Board notes the records document the Veteran's occasional report of a "poor" memory, but assessments by clinicians tended to document intact or good memory. While there is variation, this is consistent with VA examiners' assessment of "mild or transient symptoms" which only occasionally decrease work efficiency and the ability to complete occupational tasks. These impairments are the basis for the disability rating of 30 percent for the Veteran's service-connected psychiatric disorder, but do not support finding that the disorder prevented him from performing the activities required of gainful employment, such that he was unemployable. This assessment is further supported by noting that the records do not indicate a deterioration in his psychiatric condition or his occupational functioning during the period under consideration. Compare October 2008 VA Examination (opining that the Veteran had mental disorder signs and symptoms that are transient or mild and decrease work efficiency and ability to perform occupational tasks only during periods of significant stress) with May 2010 VA Examination (no occupational impairments) with June 2015 VA Examination (opining that the Veteran had mental disorder signs and symptoms that are transient or mild and decrease work efficiency and ability to perform occupational tasks only during periods of significant stress). The Veteran's occupational history is auto mechanic, as well as transportation/logistics in the military for several years. As to his physical disabilities, the Veteran's right knee disabilities have been rated 10 percent disabling since 2001, subsequent to the right knee surgery, and the Veteran was, in fact, able to obtain and maintain gainful employment for years afterwards with the functional limitations of his knee. Moreover, the severity of the Veteran's service-connected right knee was discussed in detail in the January 2021 Board Decision and involves limitation of motion that would be noncompensable if evaluated under DC 5260 or 5261 and only slight recurrent subluxation of the patella. The Board acknowledges the pain associated with the right knee disability and the functional limitations due to these manifestations, but finds that the right knee disability had an impact on the Veteran's occupational functioning during the time under consideration that is commensurate with the combined 20 percent rating, but is not of such severity as to prevent him from obtaining or maintaining employment. The Board acknowledges the Veteran's contention, recorded by the October 2008 VA examiner (mental health) that he "lost his job in September of this year due to the problems with his knees and physical impairments he mentions." However, there is little other evidence that supports that the Veteran's knees and other service-connected disabilities caused his unemployment. The Veteran on multiple occasions indicated he was still able to work until 2010 when he hurt his back. Moreover, the physical examination of his knees at an October 2008 VA examination did not indicate limitations that would have precluded gainful employment. Those findings were discussed in the January 2021 Board Decision in assigning the ratings for the right knee and will not be repeated in detail here. In addition, the Veteran's statement mentions the knees (plural) but only the right is service-connected and also mentions other "physical impairments" some of which are due to the non-service-connected back disability. Thus, standing alone, the Veteran's report to the October 2008 VA examiner that his knees and other physical impairments caused his unemployment is too vague and ambiguous regarding the effects of service-connected disabilities alone to have any probative value on the issue before the Board. As to the right knee disability itself (alone and in combination with other service-connected disabilities), the Board has explained why the evidence is against finding it prevented the Veteran from obtaining or maintaining employment. Similarly, the Board has considered the October 2008 VA examination (joints) at which he reported that he was "actually unemployed." However, the mere fact of actual unemployment, as discussed above, has no independent probative value given the presence of significant non-service-connected disabilities. The examiner declined to comment on occupational functioning, but it is significant, though of only limited probative value, that the examiner found the Veteran independent in self-care and activities of daily living, which suggests, as does other evidence, that the functional limitations due to the right knee disability were minor. The left ankle disability has been rated 20 percent disabling since September 2008. While this disability, particularly when combined with the right knee disability, would arguably limit the Veteran's ability to ambulate or stand for long periods, it does not preclude even physical labor that primarily involves upper body strength, such as working as a mechanic, and does not preclude sedentary employment (e.g., employment performed primarily at a desk or sitting down and not requiring significant walking, bending, squatting, or lifting). The Board acknowledges the Veteran's report that his left ankle caused the loss of 16 weeks from work and the May 2010 VA examiner's conclusion that the left ankle caused increased absenteeism. As to the Veteran's report, there is no other evidence and no records supporting the rather extraordinary claim of 16 weeks of missed work. This silence is notable given the Veteran's numerous statements discussing the impact of other disabilities on his work. In addition, the Veteran does not describe how or why the ankle would cause such significant lost days of work (over 1/3 of a year) and the results of the VA examination are entirely inconsistent with symptoms that would require missing that much work. The Veteran does not, in this statement to the examiner or otherwise in his testimony, explain why his ankle disability would have resulted in missing one out of every three weeks of work. The Board finds the Veteran's estimation of the amount of absenteeism caused by the left ankle is not supported by the entire record. The Board does credit the VA examiner's opinion that there would be some increased absenteeism, though the amount is not indicated. Furthermore, to the extent the left ankle disability would impact physical labor, and potentially cause significant absenteeism in a physically demanding occupation, the Board has noted that the Veteran has the skills and education to engage in employment performed primarily at a desk or sitting down and the evidence does not support finding that the left ankle disability, alone or in combination with other disabilities, would cause absenteeism to the extent claimed by the Veteran in that sort of setting. The Veteran's physical limitations due to his service-connected disabilities were relatively mild during the period under consideration and there is no persuasive evidence that he could not continue working, from a physical limitations perspective, due to the right knee and left ankle conditions throughout the period prior to January 13, 2016. These conditions would not preclude the sort of employment for which the Veteran was suited by education, training, and experience. In fact, although the Veteran did mention these conditions, at times, when discussing why he stopped working, he more often told clinicians it was because of his non-service-connected back disability. The Veteran has pointed to the May 2010 VA examination (mental health) where the Veteran reported that he was unemployed because of his physical conditions as favorable evidence. That statement by the Veteran warrants no probative value in favor of the claim, because it is ambiguous as to whether it includes non-service-connected disabilities and other evidence, including other statements by the Veteran, explicitly link his unemployment to non-service-connected disabilities (see discussion below). Also, to the extent the Veteran would argue that the statement indicates some sort of endorsement by the recording medical professional, the context does not indicate anything more than transcription of the Veteran's own opinion. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (lay statements "simply...recorded by a medical examiner" do not constitute "competent medical evidence"). And, again, the statement is too ambiguous regarding which physical disabilities contribute to his unemployment to have any probative value in favor of his TDIU claim. As to education, the record establishes that the Veteran had a four year college degree in electronics. See September 2014 Private Psychiatric Evaluation (noting for education: "BS - Electronics"); see also February 2011 Private Psychiatric Evaluation (noting for education: "BA"); SSA Disability Report (noting the Veteran reported four or more years of college with completion in 2007); but see October 2016 VA Form 21-8940 (indicating two years of college). Given at least two years of college and significant training in a logistics capacity during service, the record establishes that the Veteran has the education and training to perform physical labor that primarily involves manipulation of objects with the upper body or, alternatively, occupations that are primarily sedentary but utilize the Veteran's college education or his knowledge and experience as an automotive technician (e.g., working in an automotive parts store) or in logistics. The fact that the Veteran's physical disabilities affect only his lower extremities and that his psychiatric disability only occasionally resulted in occupational impairment (as discussed above), weighs heavily in favor of finding that his education and work experience were sufficient to allow him to obtain and maintain gainful employment despite his service-connected disabilities. The Veteran became unemployed in 2010 after a physical injury. The Veteran has, at various times, alleged that his back disability caused him to leave his employment in 2010. At the February 2011 VA examination (joints), the Veteran reported that the reason for his unemployment was "aggravation of lower back condition" and that he had been unemployed for less than one year. He stated that his usual occupation was "security and transportation." At his August 2011 VA examination (joints), he reported that he was unemployed because he was not able to get a job in his line of work due to his physical conditions. He listed his usual occupation as bodyguard. The timing of his unemployment coincides with reports of increased back pain in 2010 and his stated reason at the time he became unemployed was trouble with his back. Therefore, the greater weight of the evidence establishes that the Veteran's actual unemployment beginning in 2010 was due to a non-service-connected condition. The Board therefore assigns no probative weight (either in favor of or against the claim) to the fact of his unemployment from April 2010 to January 2016. In making this determination, the Board is not, as the Veteran suggested in his argument to the CAVC, ignoring the principle that "VA may not consider non-service-connected disabilities." See November 2021 Appellant's Brief at 20-21 (quoting Pederson v. McDonald, 27 Vet. App. 276, 286 (2015)). The Board expressly acknowledges that, notwithstanding the back disability and any other impediments to employment, the Veteran could still be unemployable due to service-connected disabilities. The Board's discussion is an acknowledgement of the Veteran's argument that the fact of his unemployment supports his claim. But the Board finds that this fact has no probative value in this case, because, although he could still argues he was unemployable due to service-connected disabilities, the fact of unemployment is also explained by his non-service-connected back disability, which the Veteran himself on numerous occasions indicated was the actual reason for his unemployment. Again, notwithstanding that the back disability precipitated his actual unemployment, the Board has considered whether, ignoring the effects of the non-service-connected back disability, the combined effect of the Veteran's service-connected disabilities rendered him unemployable. In short, the Board is merely acknowledging potentially favorable evidence (the fact of unemployment) and explaining why that fact is not assigned probative value in favor of or against the claim in these circumstances. Finally, the Board has considered the combined impact of the Veteran's service-connected disabilities. As noted above, the left ankle and right knee disabilities would, in combination, affect his ability to obtain and maintain gainful employment in a physically demanding occupation that required long periods of standing or walking or otherwise utilizing his lower body. However, those physical disabilities would have only minimal impact on an occupation that primarily involves upper body strength, such as working as a mechanic, and does not preclude sedentary employment (e.g., employment performed primarily at a desk or sitting down and not requiring significant walking, bending, squatting, or lifting). His psychiatric disability had a mild impact on occupational functioning during this period. Therefore, the additional impact of his psychiatric disability, in combination with his physical disability, would be mild in a job not requiring prolonged standing, prolonged ambulation, or other job duties that required significant utilization of the lower extremities. This is not a situation where some of his disabilities significantly impact some sorts of occupational functions and others significantly impact or preclude other functions such that the combined effect is to effectively preclude employment. Here, the Veteran's physical disabilities do impact certain types of employment, but have minimal impact on more sedentary forms of employment for which he is suited by education, training, and experience, and his psychiatric disability has only mild impact on all types of employment. Therefore, the combined impact of the Veteran's service-connected disabilities was only mild during the period on appeal in occupations not requiring the performance of physically demanding tasks involving the lower extremities. The Veteran relies on the April 2024 Vocational Assessment to support finding that the combined effect of his service-connected disabilities did render him unemployable prior to January 13, 2016. The examiner opines that the Veteran was unable to work due to his service-connected disabilities "since at least January 2009." As noted above, there is significant discrepancy in the records regarding when the Veteran last worked full-time. See 2014 SSA Psychiatric Evaluation by Dr. S.C. (indicating the Veteran was a "stable" worker until 2010); October 2016 VA Form 21-8940 (Application for Increased Compensation Based on Unemployability), (indicating the Veteran last worked in April 2010); SSA Disability Application (stating he worked 5 days per week for the military between 1998 and March or April 2010, in transportation/logistics for VIPs); February 2011 VA Examination (indicating he worked until early 2010). Whether this was full-time employment is not entirely clear, but the vocational consultant does not engage with the fact of at least some employment during 2009. More problematically, in discussing the Veteran's vocational limitations, she relies, in significant part, on non-service-connected disabilities. See April 2024 Vocational Assessment at 7 ("Per the 02/18/2020, Disability Benefits Questionnaire (Back Condition) note, the Veteran suffers from flare-ups occur weekly with weather changes..."). In addition, the citations for explaining her reasoning are almost exclusively to evidence from after January 13, 2016. The vocational consultant's list of "the very basic requirements to sustain competitive employment" (beginning page 5), with explanations for how she believes the Veteran fails to meet each, refers either to the Veteran's current report to her of what he was capable of doing or, alternatively, to medical assessments from 2017, 2018, and 2020. Given the reliance on non-service-connected conditions, the failure to engage with his actual employment (whether full or part-time) during at least portions of 2009, and a rationale that refers exclusively to evidence relating to symptoms/impairments outside the period under consideration or which are mere regurgitations of the Veteran's current allegations in support of his claim, the Board finds this report has no probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that a medical opinion obtains probative weight from "factually accurate, fully articulated, sound reasoning for the conclusion"); see also Reonal v. Brown, 5 Vet. App. 458, 461 (1993) ("An opinion based upon an inaccurate factual premise has no probative value."); see also LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (lay statements "simply...recorded by a medical examiner" do not constitute "competent medical evidence"). Overall, the greater weight of the evidence is against finding that the Veteran's service-connected disabilities rendered him unable to obtain or maintain gainful employment prior to January 13, 2016. While the Board acknowledges the impairment experienced by the Veteran as a result of his service-connected disabilities, it does not see a basis on which to find that his service-connected disabilities are the cause of his lack of work. The Veteran's existing disability ratings already acknowledge the functional impairment caused by his service-connected disabilities. The evidence is not in approximate balance, but is persuasively against the claim, therefore there is not reasonable doubt to be resolved in favor of the Veteran. 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021). Accordingly, entitlement to a TDIU prior to January 13, 2016, is denied. Duties to Notify and Assist The Veteran has not raised any specific issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Therefore, the Board does not need to discuss VA's compliance with the duties to notify and assist. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Hubers, Kerry 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.