Citation Nr: 18154092 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 09-26 482 DATE: November 29, 2018 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is granted. FINDING OF FACT The preponderance of the evidence supports a finding that the Veteran’s service-connected fibromyalgia, bilateral plantar fasciitis, left knee, and left testalgia disabilities have rendered him unable to secure and maintain substantially gainful physical or sedentary employment throughout the appeal period. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.341, 4.1, 4.16 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1987 to October 1996. This matter is on appeal from an August 2008 rating decision which, in pertinent part, continued disability ratings assigned to some of the Veteran’s service-connected disabilities. The Veteran perfected an appeal as to the ratings assigned to his disability and, in a June 2012 decision, the Board determined that the TDIU claim had been raised by the record in conjunction with the increased rating claims and accepted jurisdiction over the appeal. See June 2012 Board decision. In February 2018, the Veteran filed a VA Form 9 in response to a December 2017 statement of the case addressing the issue of entitlement to service connection for erectile dysfunction. The Agency of Original Jurisdiction has not addressed this. It is referred for all appropriate action. 1. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities The Veteran’s service-connected disabilities include fibromyalgia, rated 40 percent disabling from February 2008; allergic rhinitis, rated 30 percent from February 2009; irritable bowel syndrome, rated 30 percent from March 2014; right and left foot plantar fasciitis, rated noncompensable together (as a bilateral disability) from October 1996 and separately rated 10 percent disabling from February 2005; residuals of left knee injury, rated 10 percent disabling from April 2006; left testalgia, rated 10 percent disabling from February 2009; painful surgical scar, status post left inguinal hernia, rated 10 percent disabling from April 2009; and left inguinal hernia, rated noncompensable from October 1996. Accordingly, the Veteran has met the schedular criteria for entitlement to TDIU under 38 C.F.R. § 4.16 (a) since February 17, 2009, when he had one service-connected disability rated 40 percent or more, with additional disabilities bringing his combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). Next, the Board must determine whether the Veteran’s service-connected disabilities have prevented him from securing and following a substantial gainful occupation, to include prior to February 17, 2009 (to warrant entitlement to TDIU on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b)) and after February 17, 2009. The evidence shows the Veteran graduated from high school and obtained a Bachelor of Science in educational development and human resources. The Veteran has also taken graduate classes toward a Master’s of Science degree (through the VA Vocational Rehabilitation program) but he was unable to complete the degree because he could not write a thesis. The Veteran has held various jobs including landscaping, truck driving, general maintenance, and custodial and janitorial services, which have been described a light to medium and unskilled to semi-skilled jobs. See December 2008 Psychosocial Assessment; October 2014 Vocational Assessment. The Veteran has consistently reported that the symptoms caused by his service-connected disabilities prevent him from maintaining steady employment. For example, in May 2008, he stated that the pain and spasms in his feet frequently prevents him from walking, working, standing, and running. See May 2008 Veteran statement. He has also stated that the constant pain caused by his left inguinal hernia prevents walking, running, sleeping and limits mobility. See May 2008 Veteran statement. The Veteran’s wife has also asserted that his fibromyalgia results in fatigue and intense pain that impairs his ability to maintain his balance and results in problems comprehending small things. She has also stated that the medication he takes to treat his service-connected disabilities result in an upset stomach, dizziness, sleepiness, and weakness. See November 2012 lay statement from B.W. Despite the competent lay assertions provided by the Veteran and his wife, the evidentiary record contains conflicting evidence regarding whether the Veteran’s service-connected disabilities render him unemployable. The Veteran has been afforded several VA examinations during the appeal period and, notably, the examinations contain varying information about the impact his disabilities have on his ability to obtain and maintain employment. For example, several VA examiners have opined that the Veteran’s fibromyalgia, bilateral plantar fasciitis, allergic rhinitis, and left testalgia disabilities do not have any impact on his ability to work. See e.g., August 2012 VA examinations; October 2013 VA examinations; September 2013 VA Male Reproductive System examination. However, other VA examiners have stated that the symptoms caused by his various service-connected disabilities would affect his ability to perform heavy physical activities, such as lifting or carrying items or any duties that require prolonged walking or standing. In this regard, the Veteran has reported that he has not worked due to the constant pain and stiffness caused by his fibromyalgia, that his left knee disability is manifested by pain while he is walking and standing, that his bilateral plantar fasciitis results in disturbance of locomotion as well as interference with standing, and that his left testalgia is manifested by daily pain that occurs while he is sitting and standing. See e.g., August 2011 VA Genitourinary examination; October 2017 VA Knee and Foot examinations; October 2017 VA Male Reproductive System and Hernias examinations. The examiner who conducted the December 2011 Fibromyalgia examination noted the Veteran’s report that his medication caused dizziness and daytime hypersomnolence, which the examiner opined precluded sedentary occupations and prevented the operation of motor vehicles and mechanical equipment. See December 2011 VA Fibromyalgia examination. Additionally, the Veteran’s private physician has consistently opined that the Veteran’s fibromyalgia and left testalgia prevents him from performing any strenuous muscular activities, including heavy use of machinery or mechanical equipment and that any clerical sedentary occupation is also strictly prohibited because of the drowsiness, light-headedness and dizziness caused by his medication. See e.g., March 2016 Fibromyalgia Disability Benefits Questionnaire (DBQ); October 2017 Fibromyalgia DBQ; October 2017 Male Reproductive System DBQ. Based on the foregoing, inclusive of the Veteran’s statements, the medical evidence of record, and the statements provided by VA examiners and the Veteran’s private physician, the Board finds that, both prior to and after February 17, 2009, the symptoms the Veteran has experienced in conjunction with his fibromyalgia, bilateral plantar fasciitis, left knee, and left testalgia disabilities render him unable to secure or maintain substantially gainful employment, including physical employment that would require heavy lifting, the use of machinery, or any prolonged standing or walking and sedentary employment which would require concentration or sitting for extended periods of time. Therefore, the Board finds the preponderance of the evidence supports a finding that the Veteran’s service-connected fibromyalgia, bilateral plantar fasciitis, left knee, and left testalgia disabilities combine to render him unemployable. Therefore, the claim of entitlement to a TDIU is granted. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel