Citation Nr: 18144479 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 16-25 271 DATE: October 24, 2018 ORDER A total disability rating based on individual unemployability (TDIU) is granted subject to the laws and regulations governing the award of monetary benefits. FINDING OF FACT The Veteran is unable to obtain or maintain substantially gainful employment as a result of his service connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38C.F.R.§§ 3.102, 3.340, 3.341, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1987 to August 1991. The Veteran filed a formal claim for a TDIU in January 2014. The Veteran asserts that his service connected disabilities prevent him from working. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation 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 are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. “While the term ‘substantially gainful occupation’ may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent.” Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). Assignment of a TDIU evaluation requires that the record reflect some factor that “takes the claimant’s case outside the norm” of any other veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). The Veteran is currently service connected for post-traumatic stress disorder (PTSD), evaluated as 30 percent disabling effective January 2008 and 50 percent disabling effective December 2012; Fibromyalgia with irritable bowel symptoms (IBS), evaluated as 40 percent disabling effective October 2009; tinnitus, evaluated as 10 percent disabling effective March 2009; chronic sinusitis and rhinitis, evaluated as 30 percent disabling effective November 2005 and 10 percent disabling effective March 2016; and bilateral hearing loss evaluated as noncompensable. The Veteran’s combined disability rating is 70 percent effective January 2008, and 80 percent effective December 2012. As such, the schedular requirements of 38C.F.R.§4.16(a) are met. Once that threshold requirement has been satisfied, the pertinent question becomes whether the Veteran’s disabilities preclude him from obtaining or maintaining substantially gainful employment. The Veteran reported that he last worked on a long-term basis in October 2013 as a Certified Nurse Assistant (CNA). He was employed for over 20 years serving as a CNA and live-in companion for a patient who needed 24-hour care. During an April 2014 VA examination, the Veteran reported that he was only able to maintain this employment because the patient and his family cared for the Veteran and were willing to overlook his difficulties. The Veteran reported that on some occasions, prior to the patient’s death, he would be late for work, or would leave early due to fatigue and physical health concerns related to his fibromyalgia and IBS. At other times, he would be exhausted from prescribed medication, which lead to oversleeping. Since his 2013 employment, the Veteran has had several jobs, but has had challenges maintaining employment. He has been let go by clients because he did not get along with their spouses or, on occasion, has fallen asleep while at work. Additionally, he has experienced some challenges reentering the workforce related to his education and advancements in the profession. The Veteran reported that “everything has changed since what he did 25 years ago.” He also reported that although he is pursuing his bachelor’s degree he is impacted by his declining memory and concentration abilities. Of note, in 2016, the Veteran reported that he had to retake a semester’s worth of coursework. He explained that he usually has a B average and then “something happens that leads to him being overwhelmed, and his grades drop.” A 2014 VA examination indicates that his fibromyalgia and IBS would likely limit the Veteran to light physical or sedentary employment. The examiner also noted that the Veteran has non-service-connected musculoskeletal disabilities that would limit his physical employment, but that it was impossible to separate the physical effects of his service-connected and non-service-connected disabilities without speculation. A 2014 VA examination for PTSD indicates the Veteran experiences occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran was noted to have moderate ongoing mental health symptoms, resulting in significant functional impairment. The examiner noted that the Veteran maintains few meaningful interpersonal relationships and engages in very few enjoyable leisure activities. His concentration difficulties were noted to impact his ability to take on too many responsibilities at once and, as reported by the Veteran, his concentration impacted the reliability of his work with his now-deceased patient. VA examinations in 2016 also indicate significant impact on the Veteran’s ability to work. The Veteran’s IBS pattern requires bathroom access at all times for any work situation. The Veteran’s fibromyalgia impairs his ability to do physically demanding work that requires prolonged weight bearing or repetitive movements. His PTSD causes occupational and social impairment with deficiencies in most areas including work. While, the Veteran was approved for vocational training, he was noted to experience a vocational impairment, in substantial part due to his service-connected disabilities, and a serious employment handicap. During the March 2015 vocational assessment, the Veteran reported an inability to perform job duties requiring high lift carry or high mobility due to fibromyalgia. He also reported difficulty driving long distances due to his fibromyalgia. He reported restrictions carrying/lifting more than 50 pounds, standing more than two or three hours, sitting more than two hours, and walking more than three flights of stairs. He reported limited ability for squatting, bending and doing overhead work. He reported difficulty with hearing, memory, and concentration. The Board concludes that the Veteran is unable to obtain or maintain substantially gainful employment as a result of his service-connected disabilities. The Board finds that the Veteran’s mental and physical impairments cause a significant impact on his ability to work. The Veteran’s reported employment accommodations and difficulties pursuing advanced education, indicate significant hurdles to obtaining and maintaining substantial gainful employment. The Veteran’s difficulty in maintaining employment was demonstrated by his report of being laid off from work. Ultimately, the Board is unable to reasonably conclude that the Veteran could perform light physical or sedentary work in light of the Veteran’s reported restrictions for squatting, bending, sitting, standing, and reaching, coupled with his difficulty with memory, concentration, and stress, and the requirement for bathroom access at all times. As such, a TDIU is granted. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. I. Sims, Associate Counsel