Citation Nr: 18147533 Decision Date: 11/06/18 Archive Date: 11/05/18 DOCKET NO. 16-36 014 DATE: November 6, 2018 ORDER Entitlement to a total disability rating due to an individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran has been unable to secure and follow substantially gainful employment as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met since December 6, 2013. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19, 4.25, 4.26 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1982 to July 1987; and from March 1988 to March 1992. This appeal comes before the Board of Veterans’ Appeals (Board) from a January 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. TDIU 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 (2017). A finding of total disability is appropriate 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(a)(1), 4.15 (2017). 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 disabilities, provided at least one disability 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. §§ 3.340, 3.34l, 4.16(a). In exceptional circumstances, where the Veteran does not meet the percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment due to service-connected disability. 38 C.F.R. § 4.16(b). The Board may not assign an extra-schedular TDIU under 38 C.F.R. § 4.16(b) in the first instance. The Veteran asserts that his service-connected disabilities of irritable bowel syndrome, an acquired psychiatric disability, including and not limited to, anxiety, post-traumatic stress disorder (PTSD) and depressive disorder, bilateral hearing loss, and tinnitus, have prevented him from securing and/or maintaining substantially gainful occupation. The Veteran is service-connected for an acquired psychiatric disability, including and not limited to post-traumatic stress disorder (PTSD) with major depressive disorder, at 30 percent disabling, effective from August 17, 2009 to December 5, 2013, and at a 70 percent disabling, effective December 6, 2013; irritable bowel syndrome, at 30 percent disabling, effective December 16, 2010; hemorrhoids, associated with irritable bowel syndrome, at 20 percent disabling, effective February 6, 2014; tinnitus, at 10 percent disabling, effective February 6, 2014; right elbow disability, at 10 percent disabling, effective February 9, 2017; bilateral hearing loss, at a non-compensable rating, effective December 16, 2010 to February 25, 2017, and at 10 percent disabling, effective February 26, 2017; right little finger fracture, at a non-compensable rating, effective August 17, 2009; and scar, status post colonoscopy, associated with irritable bowl syndrome, at a non-compensable rating, effective December 16, 2010. For the period of December 16, 2010 to December 5, 2013, the Veteran’s combined disability rating is 50 percent; from December 6, 2013 to February 5, 2014, his combined disability rating is 80 percent; from February 6, 2014 to February 25, 2017, his combined disability rating is 90 percent; and beginning February 26, 2017, his combined disability rating remained at 90 percent, with the bilateral factor applied. 38 C.F.R. §§ 4.25, 4.26 (2017). Beginning December 6, 2013, the Veteran meets the minimum percentage requirement of 38 C.F.R. § 4.16(a). After a review of all pertinent evidence of record, the Board finds that the evidence strongly suggests that the Veteran’s service-connected disabilities are significant enough to preclude him from maintaining or following a substantially gainful occupation. In numerous VA 21-8940 Application for Unemployability (TDIU application) forms submitted by the Veteran, he disclosed that he worked as a painter at his last employment; the highest level of education he completed was two years of college; and that he has not undertaken any education or training since becoming too disabled to work. However, a comparison between all of his TDIU applications reflects that he provided different dates for the time he became too disabled to work, including June 2010, January 2011, January 2012, August 2012, December 2012, and January 2013. However, based on a review of all pertinent evidence of record, including numerous, additional statements from the Veteran, social security administration records, and correspondence from his former employer, the Board finds that the last time the Veteran worked was in September 2012, although termination from his employment was not effective until November 4, 2013, in which the Veteran had been on medical leave since September 2012, and in receipt of short-term disability benefits from March 9, 2013 to November 4, 2013. The evidence of record makes it apparent that the functional impairment of multiple disabilities have affected the Veteran’s employability. A November 2012 correspondence, for example, reflects that his employer, Public Schools of Robeson County, approved him for medical leave from September 2012 to December 2012, as noted above. Additionally, in a March 2014 statement, C.L.S., a family member of the Veteran, stated that she has known the Veteran for 10 years, and that from personal observation, the Veteran’s mental and physical state renders him unable to work full-time, as she does not know of any employment that he is capable of undertaking in the future, unless he drastically improves physically and mentally. She also indicated that the Veteran has a combination of physical and mental issues that have progressively gotten worse, which has altered his lifestyle completely and noticeably changed him from who she knew years ago, as a friendly, helpful, single parent, working full-time and attending classes at a local university, to who he is now. She explained that in approximately 2012, the Veteran’s stomach problems started to worsen to the point where he missed many days at work and was seeing several doctors to understand what was happening to him. She also indicated that she discovered that the Veteran missed approximately one month from work due to mental issues he was experiencing and undergoing treatment at a clinic in Pinehurst, North Carolina. According to the Veteran’s spouse, H.B., in a March 2014 statement, the Veteran’s conditions prevented him from completing his education at a local university, where he was on the Dean’s List, at one point; and during the same year, he was missing time from work, in addition to missing time from the classes he had been attending. She explained that the Veteran reported to work late or left early because he was unable to keep up with the demands of the job order for the day, and that he felt overwhelmed or found himself to be making mistakes, such as, using the wrong paint color, or mixing up job orders with schools, in his capacity as a painter. She additionally explained that the Veteran was physically distracted from his obligation to pack and secure materials for using the bathroom several times, and that on some days, he soiled his clothing, which caused him to leave work early. Additionally, she noted that the Veteran, on occasion, was unable to get along with his co-workers because he was anxious or angry; he was having trouble establishing connections between events, time, places, etc.; he was unable to recall a lot of things, such as washing, changing his contact lens, or where he was supposed to be; and that he was becoming increasingly unreliable at work. Subsequently, in follow-up statements in June 2016 and May 2017 correspondences, H.B. further indicated that the Veteran had not worked in more than three years; his mental state appeared to be worse; and that he has mental conditions that do not always allow him the interest needed to complete tasks, and that the energy needed to do anything seemed to be less present most times. She additionally indicated that the Veteran struggles to stay awake or walk very far. In a March 2014 statement, the Veteran’s co-worker, B.H., indicated that it became quickly apparent that the Veteran was suffering from several medical issues, and that his mental disability was in question. He further explained that it took some time before he witnessed the severity of the Veteran’s medical problems, as well as the impact on the Veteran’s daily life. B.H. explained that he personally witnessed the Veteran using the rest room daily, and/or experience cramps to the point where he was unable to perform his duties or really work at all. He also explained that things had progressed to the point where he noticed that the Veteran was forgetting the simplest of things and that he was no longer able to organize anything. B.H. additionally noted that the Veteran got frustrated and at times, angry, because he was no longer able to do his job. Moreover, the Veteran submitted additional statements from various witnesses, including a payroll/secretary from his former employment, L.L.P., who, as she explained, has known the Veteran throughout his life; a family friend, M.P.T, whom, as she explained, has known the Veteran since childhood; and J.M.S., a friend of the Veteran. See March and May 2014 Buddy Statements. Summarily, all of these statements described, in detail, how the debilitating effects of the Veteran’s physical and mental disabilities severely impacted his ability to work. For example, L.L.P. explained that she knew that it was going to be a matter of time before his mental and physical conditions, combined, would really become a serious issue for him; as a result of his irritable bowel syndrome, he missed a lot of time from work; if he did not miss time from work, he had to leave early because he soiled his clothes, experienced cramping, or just did not feel right; and that he had become so unreliable that work orders and projects fell months behind. M.P.T. explained that after his depression first started, he attended therapy and attempted to return to work after few weeks, but the Veteran found the job to be too stressful, and that during that time, his stomach problems had begun. She additionally explained that there was no way the Veteran could maintain a job due to extreme diarrhea. J.M.S. explained that he met the Veteran at his place of employment; the Veteran’s health had become very bad; and that he is unable to work at his job, as well as doing simple tasks at home. A review of the Veteran’s claims file suggests that these above-mentioned lay statements are supported by findings on the severity of the Veteran’s service-connected disabilities in the medical evidence of record. Specifically, in a September 2012 letter, the Veteran’s private physician, Dr. C.B., noted that the Veteran reported having a chronic history of irritable bowel syndrome; these chronic symptoms apparently interfere with the Veteran’s ability to maintain employment that demands 40 hours a week; and that he missed a lot of work as a result of his medical symptoms. In a July 2013 correspondence from Pembroke Family Practice Center, a physician assistant, D.R., explained that the Veteran’s physical restrictions, included no bending, no stooping, no lifting of items exceeding 8 pounds, no climbing, and a requirement that the Veteran remain in relative close proximity to a rest room since he has to stop activities for rest frequently. D.R. also noted that one of the Veteran’s disabling diagnoses is severe, irritable bowel syndrome, with chronic frequent diarrhea, with episodes of encopresis and chronic abdominal pain and weakness. He further explained that the Veteran experiences pain that affects his ability to concentrate and remain on task. In August 2016, the Veteran’s physician, Dr. L.B., completed a Medical Report for Disability Re-Examination form, in which she noted irritable bowel syndrome as a primary diagnosis, and PTSD as a contributing diagnosis. She opined that the Veteran’s disabilities cause him to be permanently incapacitated from the performance of his usual occupation. As the rationale for her conclusion, she explained that the Veteran is unable to sustain normal work activity and that the Veteran had been given restrictions, including no lifting exceeding 8 pounds, no repetitive bending, no climbing, no running, and no prolonged standing. She also explained that when the Veteran sits down, he has to shift positions frequently, and that he has to lie down frequently during the day for pain, relief and rest. She concluded that based on her observations, the Veteran cannot perform any work. Additionally, the Veteran underwent several VA examinations for various disabilities, in which a number of VA examination reports have indicated that the Veteran’s disabilities impact his ability to work. For instance, for the Veteran’s service-connected right little finger fracture, a VA examiner from his June 2012 VA examination explained that the Veteran’s grip is impaired to the point where he frequently lost his grip on tools at work; and for his service-connected irritable bowel syndrome, he missed work due to cramping abdominal pain and diarrhea. In a December 2013 Disability Benefits Questionnaire (DBQ) for the Veteran’s service-connected PTSD, a VA examiner noted that the Veteran had been on temporary disability as a result of stomach issues since 2012, and that he had been unemployed since that time. With respect to symptoms that are strongly suggestive of the effect of the functional impairment of the Veteran’s mental disabilities on his ability to work, the VA examiner determined that the symptoms of the Veteran’s mental disability, included and were not limited to, disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work-like setting; and inability to establish and maintain effective relationships. A subsequent January 2015 DBQ for PTSD reflects that the Veteran reported that he had to stop working in 2012, due to a combination of emotional issues and gastrointestinal issues. The VA examiner determined that the Veteran’s symptoms of his mental disability, included and were not limited to, chronic sleep impairment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work-like setting; inability to establish and maintain effective relationships; and suicidal ideation. In a February 2015 DBQ for ear conditions, a VA examiner noted that the Veteran’s ear and vestibular conditions impacted his ability to work because his service-connected tinnitus is distracting, and his service-connected hearing loss impacts his ability to hear. A February 2015 DBQ for hearing loss and tinnitus additionally explains how the Veteran’s hearing loss and tinnitus affect his ability work, by noting that the Veteran reported that the overall functional impairment of his hearing loss requires him to wear hearing aids provided by VA; and that the tinnitus results in confusion and the Veteran is unable to think clearly. A January 2015 DBQ for the service-connected intestinal condition, irritable bowel syndrome, reflects that the Veteran’s intestinal condition impacts his ability to work because he is required to remain in close proximity to a bathroom that will enable him to take frequent breaks. Furthermore, this DBQ reflects that the Veteran manifests symptoms including diarrhea approximately five times a day, as well as nausea twice a week. The VA examiner also noted that the Veteran has frequent episodes of bowel disturbance with abdominal distress; and episodes of exacerbations and/or attacks of the intestinal condition, which are characterized by diarrhea five times a day, with cramping, nausea and weight loss occurring more than seven times within the prior 12 months. Although a December 2015 DBQ for irritable bowel syndrome indicated that the Veteran’s intestinal condition did not impact his ability to work, other additional DBQs made a contrary determination, as noted above, despite findings similar to prior DBQs about the severity of the Veteran’s symptoms of irritable bowel syndrome. As a matter of fact, a subsequent May 2017 DBQ for irritable bowel syndrome reflects that the Veteran’s intestinal condition affects his ability to work; and that the functional impact of his intestinal conditions resulted in the need for frequent defecation, with embarrassment related to episodes of incontinent interfering with continuous work. Additionally, the VA examiner noted that the Veteran manifested frequent episodes of bowel disturbance, with abdominal distress; and more than 7 episodes of exacerbations and/or attacks of the intestinal condition, within a twelve-month period. The VA examiner also remarked that the Veteran’s had continued problems with irritable bowel syndrome, diarrhea predominant, which were often severe, necessitating the use of under pads, and occasionally, lasting a few days and leading to malaise and exhaustion. A December 2015 DBQ for hand and finger conditions reflects that the Veteran’s right little finger fracture does not impact his ability to perform any type of occupational tasks. However, the VA examiner also noted that the Veteran explained the functional impact of his service-connected right little finger fracture resulted in his difficulty with gripping for extended periods. Thus, the VA examiner might not have accounted for the impact of the Veteran’s physical limitations on certain job functions, including the ability to utilize tools with his right hand, as indicated above. In a March 2016 DBQ for PTSD, symptoms that are suggestive of a functional impairment of mental disabilities that have affected his ability to work, which the VA examiner determined as applicable to his mental disability, included and were not limited to, chronic sleep impairment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances, including work or a worklike setting. A May 2017 DBQ for PTSD, however, reflected more severe work-related psychiatric manifestations and symptoms. Specifically, the VA examiner identified additional symptoms that were applicable to his mental disability, including suicidal ideation; and impaired impulse control, such as unprovoked irritability with periods of violence. These additional symptoms are also suggestive of a functional impairment of a psychiatric disability that has an even more severe, negative impact on the Veteran’s ability to work. For behavioral observations, the VA examiner remarked that the Veteran appeared disheveled in his appearance and uneasy overall behavior; his mood and affect appeared very depressed with flat affect; speech was difficult to understand, due to low volume and unclear enunciations; his concentration appeared impaired and was unable to perform serial 7s, requesting the examiner to stop after 4 responses; his memory was impaired, with accurate recall of 2/5 items presented; and that the Veteran’s responses to a “Beck Anxiety Inventory”/Patient Health Questionnaire suggested severe depression, anxiety and trauma-related symptoms. She additionally remarked that the Veteran was experiencing difficulty with memory, tracking information, concentration and motivation. In an April 2017 DBQ for hearing loss and tinnitus, the Veteran described the functional impact of his hearing loss and tinnitus as having trouble with hearing speech in the presence of background noise, as well as difficulty in quiet situations; and having a need to mask noise in order to keep his anxiety under control. A May 2017 DBQ for the Veteran’s service-connected right elbow disability also reflects that the Veteran’s right elbow disability impacts his ability to perform any type of occupational tasks. The Veteran described the functional impact of his right elbow as having poor tolerance with lifting, pushing or twisting motions with his right elbow, especially over a period of time or with heavy weight. Summarily, the Veteran’s claims file provides a plethora of evidence that are suggestive of unemployability, which are primarily a result of his service-connected irritable bowel syndrome and an acquired psychiatric disability. Furthermore, with consideration for the totality and severity of a total of eight service-connected disabilities, the functional impairment of the Veteran’s disabilities have collectively resulted in a significant hindrance to securing and/or maintaining substantially gainful employment, due to numerous physical and mental limitations. The Veteran’s work experience entails manual labor, including thirteen years of work experience as a painter. However, he manifests physical limitations that prevent him from stooping, standing for prolonged periods of time, lifting anything heavier than 8 pounds, using full grip with his right hand to utilize tools, with restrictions of working in close proximity to a bathroom for more than average, frequent use, among various other limitations. Employment in a sedentary environment, such as, for example, in an office setting, is also impractical. The Veteran does not have any work experience in an office setting. Additionally, his physical and mental limitations also encumber his ability to work in an office setting. He cannot sit in the same position for prolonged periods of time, his incapacitating, severe symptoms of irritable bowel syndrome make it difficult for him to complete a work day, due to symptoms of cramping, diarrhea, and accidents that require him to leave work early and/or change his clothes. In addition to these debilitating effects, he also has trouble with memory, which makes it difficult for him to remember tasks; problems with concentration, which makes it difficult for him to complete his tasks; and an inability to get along with others, due to frustrations and anger resulting from his physical limitations. Thus, in this regard, the Board finds that the Veteran is entitled to a TDIU. M. TENNER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD V-N. Pratt, Associate Counsel