Citation Nr: 18159240 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 16-46 992 DATE: December 18, 2018 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. REMANDED Entitlement to service connection for fibromyalgia is remanded. Entitlement to service connection for chronic fatigue syndrome is remanded. Entitlement to service connection for irritable bowel syndrome is remanded. Entitlement to service connection for a headache disorder is remanded. Entitlement to service connection for a skin disorder is remanded. FINDING OF FACT Throughout the period on appeal, the Veteran has met the threshold percentage requirements and has been unable to maintain any form of substantially gainful employment consistent with his education and occupational background as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a total disability rating based on individual unemployability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1988 to May 1993. 1. TDIU In March 2016, the Veteran filed a formal claim for a TDIU based on the service-connected psychiatric disability, which is rated at 70 percent. 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. 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. “Substantially gainful employment” is that employment, “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. TDIU may be assigned when the schedular rating for service-connected disabilities is less than 100 percent when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, it is ratable at 60 percent or more, or, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16. The Veteran has met the minimum schedular criteria for a TDIU for the entire period of the claim. After consideration of the record and resolving all doubt in favor of the Veteran, the Board finds the service-connected disabilities are sufficient by themselves to render the Veteran unable to maintain substantially gainful employment consistent with his education and occupational background. The Veteran previously worked as a “road repair coordinator.” The record indicates that the Veteran’s psychiatric disability significantly impairs his ability to establish and maintain effective relationships and adapt to stressful circumstances, and a May 2016 VA medical opinion reports that the Veteran’s psychiatric symptoms would decrease work efficacy and reduce reliability and productivity and impair interpersonal dynamics with coworkers, supervisors and/or the public. The record also indicates that the Veteran has tinnitus and a low back disorder. Resolving all doubt in favor of the Veteran, he Board finds the combination of the Veteran’s impairment due to the psychiatric disability and the tinnitus and low back disability are sufficiently significant as to render the Veteran unemployable. Accordingly, a TDIU is warranted. REASONS FOR REMAND 1. Entitlement to service connection for fibromyalgia is remanded. 2. Entitlement to service connection for irritable bowel syndrome is remanded. The Board finds the record would benefit if the Veteran were provided examinations to determine whether the criteria for fibromyalgia and irritable bowel syndrome are met. 3. Entitlement to service connection for chronic fatigue syndrome is remanded. In March 2018, VA treatment records were associated with the record that include information pertinent to this claim. These records have not been adjudicated by the originating agency, and the Veteran has not waived his right to have the foregoing evidence initially considered by the originating agency. Accordingly, the issue must be remanded for consideration of the foregoing evidence by the originating agency. 4. Entitlement to service connection for headache disorder is remanded. The August 2016 VA examiner reported that mental health conditions can instigate headaches. The Board finds the record would benefit if a medical opinion were obtained to determine whether the Veteran has a headache disorder that was caused or aggravated by the service connected psychiatric disability. 5. Entitlement to service connection for a skin disorder is remanded. The Board finds the record would benefit if additional medical information were obtained to clarify whether the Veteran currently has eczema. The matters are REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding, pertinent evidence, including any outstanding VA treatment records. 2. Afford the Veteran a VA examination to determine whether the Veteran has fibromyalgia. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. If fibromyalgia is diagnosed the examiner should state whether fibromyalgia at least as likely as not (i.e., a 50 percent probability or greater) had its onset during the Veteran’s military service or is otherwise related to service. 3. Afford the Veteran a VA examination to determine whether the Veteran has irritable bowel syndrome (IBS). All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. If IBS is diagnosed the examiner should state whether IBS at least as likely as not (i.e., a 50 percent probability or greater) had its onset during the Veteran’s military service or is otherwise related to service, or was caused or aggravated by the service-connected psychiatric disability. The rationale for all opinions expressed must be provided with consideration of the August 2015 VA medical opinion. 4. Afford the Veteran an appropriate VA examination to determine the etiology of the reported headache disorder. All pertinent evidence of record must be made available to and reviewed by the examiner. For any diagnosed disorder, the examiner should state an opinion as to whether there is a 50 percent or greater probability that the headache disorder was present in service, is etiologically related to service, or was caused or aggravated by the service-connected psychiatric disability. The rationale for all opinions expressed must be provided with consideration of the August 2015 VA medical opinion. If the examiner is unable to provide any required opinion, the examiner should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, a complete explanation as to why this is so should be provided. If the inability to provide a more definitive opinion is the result of a need for additional information, the additional information that is needed should be identified. 5. Afford the Veteran an appropriate VA examination to determine the etiology of the reported skin disorder. All pertinent evidence of record must be made available to and reviewed by the examiner. The examiner should clarify whether the Veteran has eczema. If eczema is diagnosed, the examiner should state whether eczema at least as likely as not (i.e., a 50 percent probability or greater) had its onset during the Veteran’s military service or is otherwise related to service. A rationale for the opinion must be provided, with consideration of the histories that the symptoms associated with the current skin disorder began in approximately the late 1990s. If it is determined that there is current eczema that was present during service, the examiner should state whether the eczema preexisted service. If the examiner so finds, the examiner should state whether the eczema underwent aggravation during service. If the examiner is unable to provide any required opinion, the examiner should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, a complete explanation as to why this is so should be provided. If the inability to provide a more definitive opinion is the result of a need for additional information, the additional information that is needed should be identified. 6. Then, readjudicate the issues remaining on appeal, with consideration of all evidence associated with the record since the claims were most recently addressed by the AOJ. If any benefit sought on appeal is not granted to the Veteran’s satisfaction, the Veteran and his representative should be furnished a supplemental statement of the case and be provided the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action, if otherwise in order. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Snyder, counsel