Citation Nr: 1754635 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 08-03 072 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to a total disability based on individual unemployability (TDIU), prior to January 31, 2011. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Tang, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1988 to May 1988 and from April 1990 to April 1994. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina which granted a TDIU effective January 31, 2011. This matter was remanded for development in June 2014, August 2015, September 2016, and February 2017. FINDING OF FACT From January 1, 2007 to December 31, 2007, and from January 4, 2011 to January 30, 2011, the Veteran was only capable of marginal employment due to his service-connected disabilities. For all other periods prior to January 31, 2011, the Veteran's service-connected disabilities did not preclude him from securing or maintaining substantially gainful employment as his income exceeded the poverty threshold limits. CONCLUSION OF LAW From January 1, 2007 to December 31, 2007, and from January 4, 2011 to January 30, 2011, the criteria for a TDIU have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION A TDIU may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2017). The Veteran meets the schedular requirements for a TDIU from November 10, 2004. 38 C.F.R. § 4.16(a). He is service-connected for anxiety disorder (rated 30 percent from November 10, 2004 and 70 percent from October 20, 2011); fibromyalgia (rated 40 percent from November 10, 2004); and irritable bowel syndrome (rated at 30 percent from November 10, 2004). The Veteran's combined schedular rating was 70 percent from November 10, 2004; and 90 percent from October 20, 2011. A September 2012 rating decision granted a TDIU, effective January 31, 2011. The Veteran contends that his service-connected disabilities rendered him unemployable prior to January 31, 2011. He argues that due to the medications used to treat his service-connected disabilities (various narcotics and anti-inflammatory medications) he could not obtain and/or maintain employment except through family friends. The Veteran also contends his service-connected disabilities prevented him from performing physical labor, including climbing, squatting, bending, and lifting, due to pain, weakness, and fatigue. See November 2011 Statement in Support of Claim; Social Security Administration records. As previously noted by the Board, although the Veteran was terminated from driving trucks in 2006, he reported a work history of subsequent employment with a rope manufacturer from 2007-2008 and as an electrician from 2008-2011. See October 2011 VA examination report. The Veteran reported that he quit his last job in January 2011. See November 2014 VA examination report. Per his self-reported history, the Veteran was employed for the most part prior to the January 31, 2011 effective date of his TDIU. He reported hourly wages from 2007 forward ranging from $6.15 per hour to $8.00 per hour. Thus, the appeal was remanded in August 2015 and September 2016, to obtain information about the Veteran's work history and income to determine whether any employment prior to January 31, 2011 constituted "marginal employment" under 38 C.F.R. § 4.16(a). "Substantially gainful employment" is that employment "which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). As further provided by 38 C.F.R. § 4.16 (a), "marginal employment shall not be considered substantially gainful employment." For purposes of TDIU, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census. Marginal employment may also be held to exist, on a facts found basis-including but not limited to employment in a protected environment such as a family business or sheltered workshop-when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16 (a). The amounts established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person, were: $9,646 (2004); $9,973 (2005); $10,294 (2006); $10,590 (2007); $11,201 (2008); $10,956 (2009); $11,139 (2010); and $11,484 (2011). See https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html. Pursuant to prior remands, the RO obtained the Veteran's earning statements and medical records from Social Security Administration (SSA). The SSA records, and evidence gleaned from the claims folder, shows the Veteran was employed as a salesman for an air conditioning company from April 1994 to June 2006; drove trucks in 2006; was a rope maker from July 2007 to March 2008; a dishwasher from November 2007 to May 2008, and an electrician from March 2008 to January 2011. Income information from the SSA reveals that from 2004 to 2006 and from 2008 to 2010, the Veteran had gainful employment, based on his earnings record. During these periods, his reported earnings were: $29,483 (in 2004); $29,560 (in 2005); $15,161 (in 2006); $5,484 (2007); $14,493 (in 2008); $15,588 (in 2009); $14,628 (in 2010) and $778 (in 2011). See May 2017 SSA Earnings Record. Based on this information, the Veteran is found to have been gainfully employed -despite any difficulties caused by his service-connected disabilities- from January 2004 to December 2006 as his annual income exceeded the poverty threshold for one person. Thus, he is not entitled to a TDIU for these years. The only periods that qualify for further TDIU analysis, based on the reported annual earnings, January 2007 to December 2007 and January 4th through January 30, 2011 as his earned annual income was below the poverty level for one person. Resolving all reasonable doubt in the Veteran's favor, the evidence shows that symptoms from his service-connected fibromyalgia and IBS reduced his ability to work during these periods. Treatment records dated show the Veteran experienced fibromyalgia symptoms that were constant, or nearly so, and refractory to therapy throughout the entire appeal. See January 2007 VA medical record and May 2006 Concentra Medical Centers records. This symptomatology encompasses widespread musculoskeletal pain and tender points with associated symptoms like fatigue. During a December 2005 VA examination for IBS, the Veteran reported increased flatus, loose bowel movements daily, estimated at five times a day, occasionally at night. He also reported some cramps, bowel urgency after eating, and going to the bathroom within a few minutes. At an August 2006 VA mental examination, an examiner noted that the Veteran reported last working in June 2006, in a warehouse, and did not miss any work because of any psychiatric symptoms; he stopped working due to his physical condition impeding him from driving work vehicles. During an August 2006 VA examination for fibromyalgia, the Veteran reported chronic fatigue and symptoms of polyarthralgia and myalgia that were more or less continuous, and influenced by weather. His musculoskeletal symptoms occurred daily and were aggravated by activity. Despite receiving numerous medications for treatment, his symptoms remained constant. In August 2006, the Veteran underwent a VA examination for IBS. He reported having chronic loose bowel movements and at times diarrhea, 3-5 per day. During a June 2007 VA examination, the Veteran reported symptoms of diarrhea and crampy abdominal pain. He also reported nausea. In April 2007 a clinician opined that the Veteran had severe and progressive joint pains and was unemployable due to his arthritis condition. At a VA psychiatric examination in October 2011, the Veteran reported increasing problems with joint pain and anxiety at his work place - to the point where he could not concentrate or tolerate being near co-workers. He was noted to have resigned in January 2011, due to his joint pain and anxiety, which included functional impairments of problems concentrating, irritability, inability to effectively cope with stress, and difficulty relating to others. Given the evidence of record, the Board resolves doubt in his favor to find that he was unable to secure and maintain a substantially gainful employment during the year of 2007. In addition, SSA records show that the Veteran was considered disabled in early January 2011. It appears that his last date of employment was January 4, 2011. A May 2012 SSA disability determination indicated the Veteran was found to be precluded from performing all types of work in competitive employment as of January 4, 2011 due to his chronic pain which prevented him from working full-time at even a sedentary job. The Board notes, however, that the chronic pain was found to be related to multiple disabilities including two non service-connected disabilities of degenerative disc disease and obstructive sleep apnea. Nonetheless, the evidence from SSA shows that the symptoms from the Veteran's service-connected fibromyalgia alone would have precluded gainful employment. Given the above, a TDIU is warranted for the period of January 1, 2007 to December 31, 2007, and from January 4, 2011 to January 30, 2011. A TDIU is not for any other period prior to January 31, 2011. ORDER From January 1, 2007 to December 31, 2007, and from January 4, 2011 to January 30, 2011, a TDIU is granted. ____________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs