Citation Nr: 1804584 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 17-48 313 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Casadei, Counsel INTRODUCTION The Veteran served on active duty from November 2001 to May 2003. This matter comes before the Board of Veterans' Appeals (BVA) on appeal from a November 2015 decision by the Department of Veterans Affairs (VA) regional office (RO) in Indianapolis, Indiana. The TDIU claim was inferred in connection with a claim for increase received in September 2014. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT The Veteran's service-connected disabilities met the criteria for schedular consideration of a TDIU on September 2, 2014, and were of such severity so as to preclude substantially gainful employment. CONCLUSION OF LAW The criteria to establish entitlement to a TDIU have been met beginning September 2, 2014. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2017). The claim for entitlement to a TDIU has been considered with respect to VA's duties to notify and assist. Given the favorable outcome of this decision, no conceivable prejudice to the Veteran could result from this decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Laws and Analysis for TDIU 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). Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the Veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In determining whether the Veteran is entitled to a TDIU, neither his nonservice-connected disabilities nor his age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The test of individual unemployability is whether the Veteran, as a result of his service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation which is consistent with his education and occupational experience. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. The Board notes that the ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to "the effect of combinations of disability," VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner's opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16 (a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). As indicated, the TDIU claim was inferred based on the Veteran's claim for increase received in September 2014. In his August 2015 TDIU application (VA Form 21-8940), the Veteran reported that his irritable bowel syndrome (IBS) and anxiety disorder prevented him from securing or following any substantial gainful employment. He noted that he last worked full-time in October 2013. He reported completing college. Upon review of all the evidence of record, the Board finds that the evidence is at least in equipoise as to whether the Veteran's service-connected disabilities preclude substantially gainful employment. As of September 2, 2014, the Veteran was service-connected for the following disabilities: anxiety and depression, rated as 50 percent disabling effective September 2, 2014; IBS, rated as 30 percent disabling effective August 31, 2007; sinusitis, rated as 30 percent disabling effective October 23, 2009; and tinnitus, rated as 10 percent disabling effective July 21, 2004. As such, the Veteran's combined disability rating is 80 percent as of September 2, 2014. Therefore, the Veteran first met the criteria for schedular consideration of a TDIU as of September 2, 2014. 38 C.F.R. § 4.16 (a). The evidence includes a February 2015 VA intestinal examination report. During the evaluation, the Veteran indicated that his IBS caused him to leave his job. The examiner indicated that the Veteran had more or less constant abdominal distress and had multiple, daily episodes of diarrhea. The examiner then indicated that the Veteran's intestinal condition impacted his ability to work in that the Veteran had to take very frequent restroom breaks, which were not available to him while working as a postman. In a February 2015 VA audiological examination, the examiner indicated that the Veteran's service-connected tinnitus disability impacted the Veteran's ordinary conditions of daily life, to include the ability to work. In this regard he examiner noted that the Veteran reported that his tinnitus drove him "crazy" and had difficulty sleeping due to the tinnitus. The Veteran also reported that his tinnitus made it difficult for him to hear well. The Veteran underwent a VA psychiatric examination in July 2015 where the examiner confirmed a diagnosis of anxiety and depressive disorder. During the evaluation, the Veteran reported a long history of IBS with diarrhea from 3-5 times a day. The Veteran also reported that he last worked at USPS in 2013 and stated that he had a "hard time with stomach problems." Although the Veteran reported having a college degree in criminal justice, the Veteran had not worked in that field since he earned the degree. Symptoms noted by the examiner included difficulty in establishing and maintaining effective work relationships and difficulty in adapting to stressful circumstances, including work or a worklike setting. The examiner indicated that the Veteran's anxiety and depression caused occupational and social impairment with reduced reliability and productivity. The evidence also includes a November 2015 VA application for vocational rehabilitation. The report found that the Veteran's service-connected disabilities caused an "employment handicap," but not a "serious" employment handicap. As such, it was determined that the achievement of a vocational goal was feasible. The Veteran also submitted private intestinal conditions disability benefits questionnaires (DBQ) dated in August 2016 and June 2017. The DBQs indicated current diagnoses of IBS, chronic diarrhea, and internal hemorrhoids. The doctors also indicated that the Veteran had up to 20 liquid stools a day. The Veteran also experienced pain and cramping in the abdominal area. The doctors further stated that the Veteran's intestinal disorders impacted his ability to work in that the Veteran had frequent diarrhea secondary to colitis with up to 20 stools per day. In a June 2017 rectum and anus condition DBQ, it was noted that the Veteran had internal hemorrhoids and diarrhea. The doctor stated that the Veteran's disorders impacted his ability to work in that the Veteran had frequent diarrhea which was uncontrolled and prohibited work. The evidence also includes a statement from the Veteran dated in December 2017. The Veteran indicated that he had been unemployed for approximately 4 years. He noted that he tried to go back to work as an arcade attendant, but was terminated. The Veteran reported that he applied for several more jobs, but due to his request for unscheduled breaks and unscheduled days off, he was unable to obtain employment. The Veteran submitted a private psychological evaluation from Dr. J. P. dated in April 2017. The Veteran was diagnosed with anxiety and depressive disorder. During the evaluation, the Veteran reported that he last worked at the Post Office in 2013. He more recently attempted to begin working at Chuck E Cheese. However, the Veteran stated that he was fired after working there for only one week. He reported that he experienced anxiety attacks because he became overwhelmed in that environment. Based on this body of evidence, the Board finds that the Veteran's service-connected disabilities preclude physical and sedentary employment. The medical and lay evidence discussed above indicated that the Veteran requires frequent breaks and unscheduled days off due to his IBS. Further, despite seeking employment, the Veteran has been unable to maintain employment due to his anxiety symptoms and limitations due to his IBS. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that, given the impact of the Veteran's service-connected disabilities, the Veteran was unable to secure and maintain substantially gainful employment due to his service-connected disabilities beginning September 2, 2014, the date the Veteran met the criteria for schedular consideration of a TDIU. ORDER A TDIU is granted beginning September 2, 2014, subject to the laws and regulations governing monetary benefits. ____________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs