Citation Nr: 20006572 Decision Date: 01/27/20 Archive Date: 01/27/20 DOCKET NO. 11-10 277 DATE: January 27, 2020 ORDER From July 24, 2008, a rating of 60 percent, but no higher, for unspecified autoimmune connective tissue disease (autoimmune disease) is granted. From July 24, 2008, a maximum schedular 30 percent rating for irritable bowel syndrome (IBS) is granted. The appeal as to the issue of entitlement to service connection for a disability manifested by chest pain is dismissed. Service connection for fibromyalgia with headaches and sleep disturbances is granted. Service connection for chronic fatigue syndrome is denied. A total disability rating due to individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. From July 24, 2008, the Veteran’s autoimmune disease has been manifested by a combination of signs and symptoms which are nearly constant and restrict routine daily activities to less than 50 percent of the pre-illness level, or symptoms that wax and wane, resulting in periods of incapacitation of at least six weeks total duration per year; but not a combination of signs and symptoms which are nearly constant and so severe as to restrict routine daily activities almost completely and which may occasionally preclude self-care. 2. From July 24, 2008, the Veteran’s IBS has been manifested by symptoms that more closely approximate severe symptoms, with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. 3. During the October 2018 Board hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences of such action withdrew her appeal as to the issue of entitlement to service connection for a disability manifested by chest pain. 4. The Veteran’s fibromyalgia with headaches and sleep disturbances is proximately due to a disease in service. 5. The Veteran does not have a current diagnosis of chronic fatigue syndrome for VA compensation purposes. 6. The Veteran’s autoimmune disease has precluded her from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. From July 24, 2008, the criteria for a rating of 60 percent, but no higher, for autoimmune disease are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.13, 4.20, 4.88b, Diagnostic Code (DC) 6399-6354. 2. From July 24, 2008, the criteria for a maximum schedular 30 percent rating for IBS are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.114, DC 7399-7319. 3. From July 24, 2008, the criteria for a separate 10 percent rating for abdominal distension and nausea secondary to IBS are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.114, DC 7399-7301. 4. The criteria for withdrawal of an appeal regarding entitlement to service connection for a disability manifested by chest pain are met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 5. The criteria for service connection for fibromyalgia with headaches and sleep disturbances are met. 38 U.S.C. §§ 1110, 1131, 5017; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for chronic fatigue syndrome are not met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 4.88a. 7. The criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from October 1989 to November 1996. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2014, the Board remanded this appeal for additional development. In October 2018, the Veteran testified before the undersigned. The Board acknowledges the December 2018 Notice of Disagreement (NOD) with the RO’s decision that the October 2018 NOD with the October 2015 rating decision was untimely. See October 2018 NOD; October 2018 Correspondence; December 2018 NOD. A Statement of the Case (SOC) was issued in December 2019, and the Veteran has not yet submitted a VA Form 9 to perfect an appeal of that issue. Thus, the question of whether the October 2018 was timely will not be addressed in this decision, as it is not within the Board’s jurisdiction. The Board acknowledges that additional relevant evidence was received in November 2018, after the issuance of the June 2018 Supplemental SOC. However, the Board finds that she is not prejudiced, as from October 24, 2018, she is prospectively in receipt of a total rating with statutory special monthly compensation (SMC) at the housebound rate. 1. From July 24, 2008, a rating of 60 percent, but no higher, for autoimmune disease is granted. Initially, the Board observes that the medical evidence of record does not agree on any one conclusion as to the nature of the Veteran’s service-connected autoimmune disability, and indeed is often contradictory. See, e.g., August 2014 Board Remand. The Veteran was initially diagnosed with idiopathic thrombocytopenia during active service and was granted service connection for this disability. Subsequently, her diagnosis was changed to systemic lupus erythematosus (SLE). In 2008 she was diagnosed with fibromyalgia, and in 2015 she was diagnosed with chronic fatigue syndrome. In November 2018, her diagnosis was corrected from SLE to unspecified autoimmune connective tissue disease, and she was granted service connection for this corrected diagnosis, as well as associated anemia. See November 2018 Autoimmune Disease Examination Report; January 2019 Rating Decision. Notably, the RO’s correction of her service-connected diagnosis has resolved a key question that the Board faced in August 2014 – namely, whether the Veteran’s current symptoms were related to her service-connected disability. In light of the corrected service-connected diagnosis, the remaining question for the Board is rating the frequency, severity and duration of these service-connected symptoms. The Veteran’s claim for an increased rating for autoimmune disease was received on July 24, 2008. She is currently service-connected for an autoimmune disease described as “unspecified connective tissue disease.” See January 2019 Rating Decision. This disability is unlisted in the rating schedule. As discussed in greater detail below, the most analogous rating criteria are found under DC 6354 (chronic fatigue syndrome). The October 2008 examiner noted that the Veteran’s autoimmune disease, then diagnosed as SLE, was productive of fatigue, arthralgias, photosensitivity, and headaches, but had been in remission “on medication” since June 2008. The examiner noted attacks occurring three times per year and lasting two weeks per attack, with chronic fatigue and arthralgias between attacks and “poor” health, and with “fair” response to treatment. See October 2008 Examination Report. A June 2009 treatment note showed that the Veteran had generalized pain with fatigue and limited her daily activities of chores and caring for her children, and that on some days she was in so much pain that she could hardly function. See June 9, 2009 VA Treatment Note. The December 2009 examiner noted no SLE symptoms, but noted the Veteran’s report of a diagnosis of fibromyalgia since June 2008. He noted easy fatigability, headaches, sleep disturbance, anxiety, gastrointestinal disturbances, paresthesia, and Raynaud’s-like symptoms. The examiner noted that the Veteran’s symptoms occurred “constantly,” more than two thirds of the time per year, and that the ability to perform daily functions during flare-ups was diminished and required frequent breaks. He noted a favorable response to recent injections for treatment, and that the Veteran had lost time from work due to this disability. The examiner reviewed the Veteran’s medical records and noted that a 2001 flare-up of this disability was re-attributed to stress or fibromyalgia rather than SLE. See December 2009 Examination Report; July 16, 2008 VA Treatment Note. A May 2012 examiner noted that the Veteran had arthralgias that limited her ability to walk in the mall or participate in family outings, and on days with heightened activities she was excessively fatigued the next day. The examiner noted that the Veteran had both non-incapacitating and incapacitation exacerbations, although he did not opine as to a number. The examiner also stated that the Veteran had joint pain flare ups three times a year lasting less than one week, not productive of severe impairment in health. VA treatment records show that the Veteran experienced an exacerbation in fatigue in January 2015 and that was now occurring with daily activities, and that resulted in her being tired and unable to go to the park with her children or even going out to the movies, and that she experienced memory problems that affected her daily activities. The clinician noted that the Veteran met the criteria for chronic fatigue syndrome. See, e.g., September 8, 2015 VA Treatment Note (extreme fatigue over past few months); November 4, 2015 VA Treatment Note. The November 2015 examiner did not describe the Veteran’s symptoms, as he opined that she did not have a diagnosis of chronic fatigue syndrome, fibromyalgia, or SLE. However, he noted that the Veteran reported fatigue with activities and stated that the Veteran’s fibromyalgia symptoms were “episodic with exacerbations.” See November 2015 Examination Report. An April 2018 examiner noted no diagnosis of chronic fatigue syndrome, but noted symptoms that waxed and waned and were productive of incapacitating episodes for one to two weeks per year. A May 2018 examiner noted current symptoms of arthralgias, fatigue, migraine headaches, and intermittent sun sensitive rash, with associated symptoms of IBS and migraine headaches, and that she believed her symptoms were primarily due to fibromyalgia. She reported that her fatigue and joint pains were constant without exacerbation or flares, and the examiner noted that her historical diagnosis of SLE was in remission. See May 2018 Autoimmune Examination Report. The November 2018 examiner stated that the Veteran’s autoimmune disease was productive of severe impairment of health due to chronic fatigue, and he stated that should would be unable to stay for a full shift of work due to chronic tiredness and feeling anemic, and she would need to be a stationary job with frequent breaks. See November 2018 Autoimmune Disease Examination Report. Here, the Veteran’s autoimmune disease is manifested by fatigue, memory and concentration problems, joint pain, and other symptoms. It was previously diagnosed as lupus, which is listed in the rating schedule as an immune disorder. Chronic fatigue syndrome (DC 6354) is also listed in the section of the rating schedule as an infectious disease, immune disorder, or nutritional deficiencies, and the rating criteria specifically contemplate certain of the Veteran’s symptoms, as well as “a combination of other signs and symptoms.” 38 C.F.R. § 4.88b, DC 6354. The Board finds that this is the most appropriate DC for rating the Veteran’s unlisted autoimmune disease, as it will ensure that the entirety of her service-connected symptomatology is captured. In this regard, notwithstanding repeated efforts by VA and the Veteran’s clinicians to conclusively determine the nature and etiology of her service-connected disability and symptomatology, the medical evidence is not in accord and frequently reaches contradictory conclusions to what symptoms are service-connected and which are not, and the Board resolves any reasonable doubt in this regard in favor of the Veteran. Moreover, the Veteran’s disability has been diagnosed at times as chronic fatigue syndrome. See, e.g., September 8, 2015 VA Treatment Note. Under DC 6354 (chronic fatigue syndrome), debilitating fatigue, cognitive impairments (such as inability to concentrate, forgetfulness, or confusion), or a combination of other signs and symptoms which are nearly constant and restrict routine daily activities to less than 50 percent of the pre-illness level; or which wax and wane, resulting in periods of incapacitation of at least six weeks total duration per year warrants a 60 percent rating. A 100 percent rating is warranted for debilitating fatigue, cognitive impairments (such as inability to concentrate, forgetfulness, or confusion), or a combination of other signs and symptoms which are nearly constant and so severe as to restrict routine daily activities almost completely and which may occasionally preclude self-care. See 38 C.F.R. § 4.88b, DC 6354. From July 24, 2008, a 60 percent rating is warranted for autoimmune disease. Notably, the October 2008 examiner noted her report of three attacks in the past year lasting two weeks each. See October 2008 Examination Report. While her attacks subsequently decreased, the Board observes that she was receiving medication for these symptoms. As DC 6354 does not contemplate the effects of medication, it is appropriate to rate the disability based on six weeks on incapacitating episodes, notwithstanding the subsequent periods of lessened episodes. Moreover, notwithstanding the lack of a medical estimate of the reduction of activities in percentage terms, the subsequent evidence shows a severe restriction in daily activities due to her symptoms that is consistent with a 60 percent rating. In this regard, while the June 2009 and December 2009 clinicians disagreed as to the etiology of her symptoms, they noted symptoms that were present for most of the year and that severely limited her ability to function. The Veteran’s clinician in 2015 noted that she was unable to go to the park or movies with her children, demonstrating serious restriction in activities due to symptoms. The November 2018 examiner described her symptoms as productive of a severe impairment in health that would preclude a full shift at work without frequent breaks. Although the May 2012 examiner’s description of the Veteran’s symptoms was less severe, a staged rating over the appeal is inappropriate as the evidence does not show a consistent description of improved symptomatology and as this single report is consistent with a brief improvement or simply a description of the disability in different terms. In light of the conflicted history of this case, the reasonable doubt doctrine is for application with respect to this period of the appeal. The Board acknowledges that there were periods during the appeal in which the Veteran did not take medication, yet did not experience incapacitating episodes. However, she also experienced a constant decrease in activities consistent with a 60 percent rating. For example, in November 2015, the Veteran’s VA clinician noted that she was unable to even go to the park with her children or go to the movies. See November 4, 2015 VA Treatment Note. While the April 2018 examiner noted incapacitating episodes less than one week per year, the May 2018 examiner noted constant severity of symptoms and the November 2018 examiner opined that her fatigue was a severe impairment in health. While the examiners of record disagree as to the severity of her symptoms, the Board finds that this is as likely as not a product of different examiners describing her disability in different terms, especially in light of the confusion over the nature of her diagnosis. Notably, the Board observes that an inability to go to the park with one’s children is consistent with a reduction in activities to less than 50 percent, as well as the November 2018 VA examiner’s notation of a severe impairment in health. The Veteran’s residual functioning capacity is consistent with a less than total schedular rating. While the Veteran frequently was precluded from going outside the home due to her symptoms, she was able to teach on occasion or attempt to assist with a few hours of administrative work for her husband’s business, and she still could supervise her children with assistance or carry in the groceries. Moreover, she credibly testified that by limiting her activities preemptively, she could avoid her fatigue worsening “to the point where I can’t function.” Hearing Transcript at 3. Accordingly, a total schedular rating for autoimmune disease is not warranted. 2. From July 24, 2008, a maximum schedular rating of 30 percent for IBS is granted. The Veteran’s service-connected IBS is rated by analogy to irritable colon syndrome under DC 7319. She is in receipt of a noncompensable rating for IBS prior to March 12, 2012, and a maximum schedular 30 percent rating thereafter. Under DC 7319, a 10 percent rating is warranted for symptoms that are moderate, manifested by frequent episodes of bowel disturbance with abdominal distress. A maximum schedular 30 percent rating is warranted for symptoms that are severe, manifested by diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. 38 C.F.R. § 4.114, DC 7319. The Veteran was examined in October 2008. The examiner noted constant symptoms of chronic diarrhea, abdominal pain, and cramping, but without nausea and vomiting. He noted that these symptoms persisted more than two thirds of the year and had resulted in 12 pounds of weight loss in the past two months. See October 2008 IBS Examination Report. At a December 2009 examination, the examiner noted diarrhea and abdominal pain with distress and cramps that occurred more than two thirds of the year, without nausea or vomiting, and with 18 attacks in the past year. See December 2009 IBS Examination Report. The Veteran presented for an examination in May 2012. The examiner noted episodes of bowel disturbance with abdominal distress manifested by bloating and cramps in the past year. The examiner stated the Veteran had seven or more episodes per year, which he described as “occasional.” See May 2012 Examination Reports. In the August 2014 remand, the Board directed that an opinion be obtained as to the nature and severity of the Veteran’s historical symptoms. Specifically, the Board requested that the examiner opine if the Veteran experienced diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress; frequent episodes of bowel disturbance with abdominal distress, or disturbances of bowel function with occasional episodes of abdominal distress. In response, the examiner provided an affirmative response, but did not delineate which of the three disability pictures was most representative of the Veteran’s IBS. See November 2015 IBS Opinion. The examiner reasoned that the Veteran currently had alternating diarrhea and constipation twice a month, mild to moderate in severity, as well as regular abdominal distension of mild to moderate severity, with two episodes in the past year. See November 2015 IBS Examination Report. In July 2018, an examiner noted frequent episodes of abdominal distress manifested by cramping and painful explosive diarrhea, with nausea, and seven or more episodes of exacerbations involving intestinal spasming and an immediate need to use the bathroom. See July 2018 IBS Examination Report. The examiner also opined that he did not see a major change in the Veteran’s IBS before or after July 2012 and that her disability picture was not exceptional. See July 2018 IBS Opinion. In November 2018, an examiner noted alternating constipation and diarrhea, with frequent episodes of bowel disturbance with abdominal distress, as well as several monthly flare-ups involving intestinal spasming and more diarrhea. See November 2018 IBS Examination Report. The Board finds that from July 24, 2008, the Veteran’s date of claim, a maximum schedular 30 percent rating is warranted under DC 7319. While the Veteran’s abdominal distress was described by different examiners in different terms, the evidence shows that the Veteran would experience multiple monthly flare-ups of increased spasming and pain, and that it is at least as likely as not that reference to “occasional” pain refers to these flare-ups as opposed to her background symptoms. In this regard, the 2008 and 2009 examiner noted that the Veteran’s symptoms were present more than two thirds of the time, which is consistent with a 30 percent rating based on more or less constant abdominal distress. Notably, the Board observes that the July 2018 opinion that there had not been a major change in the Veteran’s disability, combined with the change from freehand examination reports to the use of disability benefit questionnaires during the appeal, leaves the Board convinced that the Veteran has warranted the same rating throughout the appeal. 3. The appeal as to the issue of entitlement to service connection for a disability manifested by chest pain is dismissed. The Board may dismiss any appeal that fails to allege a specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision, and withdrawal may be made by the appellant or by his or her authorized representative in writing or on the record during a hearing before the Board. 38 C.F.R. § 20.204. Here, the Veteran withdrew the issue of entitlement to service connection for disability manifested by chest pain on the record during the October 2018 Board hearing. The undersigned clearly identified the withdrawn issue and explained that by withdrawing her appeal she would not be entitled to compensation for that disability, and the Veteran affirmed that she was requesting a withdrawal as to this appealed issue. See October 2018 Hearing Transcript at 2. Thus, the Board finds that the Veteran has withdrawn this issue explicitly, unambiguously, and with a full understanding of the consequences. As there is no remaining allegation of error of fact or law for appellate consideration regarding this issue, the Board does not have jurisdiction to review it, and it is dismissed. 4. Service connection for fibromyalgia with headaches and sleep disturbances is granted. The Veteran has a current diagnosis of fibromyalgia, as well as headaches and sleep disturbances. In this regard, her VA treatment notes consistently show this diagnosis over the years, and this is the most probative evidence of record in this regard. The Veteran was originally diagnosed with SLE as a progression of her thrombocytopenia with inflammatory arthritis, which began in service. See January 21, 2001 Dr. D.J.W. Treatment Note (diagnosis of probable SLE on the basis of thrombocytopenia and inflammatory arthritis). The March 2016 clinician explained that the Veteran’s 2001 diagnosis of SLE was actually at least as likely as not fibromyalgia. See March 2016 Fibromyalgia Opinion. Moreover, he said that the diagnosis of the Veteran’s fibromyalgia as SLE at that time was not an error, but rather due to differing standards at that time. The March 2016 examiner’s opinion supports a direct award of service connection for fibromyalgia, as the corrected diagnosis for the Veteran’s historically service-connected SLE. Moreover, the evidence supports a relationship between the Veteran’s headaches and sleep disturbances as secondary to or an aspect of her fibromyalgia. See, e.g., June 2018 Medical Opinion. As these diagnoses are encompasses within the rating criteria for fibromyalgia, the Board will grant service connection for fibromyalgia with headaches and sleep disturbances. The Board acknowledges that the RO awarded service connection for autoimmune disease and that there is overlap between the symptoms of fibromyalgia and autoimmune disease listed in the rating schedule. However, the question before the Board on this issue is limited to the question of service connection for fibromyalgia, and the evidence shows a that her current symptoms are related to a disease during her military service. 5. Service connection for chronic fatigue syndrome is denied. For VA purposes, chronic fatigue syndrome requires, among other things, the exclusion of all other clinical conditions that may produce similar symptoms. See 38 C.F.R. § 4.88a. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish entitlement to service connection, a veteran must show (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Here, the Veteran is service-connected for fibromyalgia and autoimmune disease, and these disabilities have similar symptoms. Thus, she does not have chronic fatigue syndrome for VA compensation purposes. See 38 C.F.R. § 4.88a. In the absence of a current disability for VA purposes, service connection for chronic fatigue syndrome cannot be established. See Brammer v. Derwinski, 3 Vet. App. 223 (Fed. Cir. 1992). However, the Board observes that the Veteran is already service-connected for her symptoms of fatigue, and those symptoms are rated under the same diagnostic code as would be chronic fatigue syndrome. Accordingly, as there is no current disability for VA compensation purposes and all symptoms are service-connected, service connection for chronic fatigue syndrome is denied. 6. A TDIU is granted. The Veteran asserts that her autoimmune disease has precluded her from securing or maintaining substantially gainful employment since December 2016. See Hearing Transcript at 16. The Board agrees. A total disability rating 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 the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. 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 nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). Disabilities that are not service-connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history. Here, the Veteran is in receipt of a total schedular rating for an acquired psychiatric disorder from October 24, 2018. Thus, entitlement to a TDIU is moot thereafter. However, the Board will still consider entitlement to a TDIU for retroactive benefits purposes. The Veteran’s service-connected disabilities consist of persistent depressive disorder, sinusitis, IBS, autoimmune disease, fibromyalgia with headaches and sleep disturbances, rhinitis, squamous intraepithelial lesions, and anemia. She is in receipt of a 60 percent rating for autoimmune disease throughout the appeal, and thus has met the threshold schedular requirement for the award of TDIU benefits under 38 C.F.R. § 4.16(a) since July 24, 2008. Moreover, she last held substantially gainful employment from September 2014 to December 2016, when she made $35,000 that year as a charter school teacher. See Hearing Transcript at 16, October 2018 VA Form 21-8940; December 2018 VA Form 21-4192. In this regard, while she has worked a few hours part-time since then, this employment was marginal. See December 2018 VA Form 21-4192 (earned $1,440 in 2017 working part time administration for husband’s business). What remains to be determined is whether the functional impairment associated with these disabilities is of such nature and severity as to preclude substantially gainful employment. The Veteran has a bachelor’s degree, and she has been employed as a homemaker, a cashier, and a teacher. The evidence of record shows that her autoimmune disease would require her to be at a stationary job with frequent breaks. See November 2018 Examination Report. Notably, the Board finds this assessment of her abilities more probative than that in the May 2012 examination report, which noted that she would have additional impairments during the winter season. Moreover, her sinusitis would have precluded her from working in environments with high allergens. See, e.g., November 2015 Sinusitis Examination Report. Her IBS would require frequent access to a restroom at short notice. See, e.g., Hearing Transcript at 6-8. The Board finds that the Veteran’s service-connected disabilities have precluded substantially gainful employment. Here, she was involuntarily terminated from her position as a charter school teacher and unsuccessfully tried to continue working part time after she could not continue full time. See Hearing Transcript at 15-16; December 2018 VA Form 21-4192. She credibly testified as to inability to focus or to perform physically and mentally, and this is corroborated by medical evidence of record. Additionally, her requirements for frequent breaks and flexibility to use the bathroom on short notice are inconsistent with a structured environment such as teaching or working as a cashier. The Board observes that the type of job that is consistent with her skill set and that meets her requirements for flexibility and a stationary job would be something similar to a part-time administrative agent, and she demonstrably was unable to secure or maintain substantially gainful employment in this type of work. See December 2018 VA Form 21-4192. Accordingly, as the Veteran meets the schedular criteria and as her service-connected disabilities precluded her from securing and maintaining substantially gainful employment prior to the award of a total schedular rating, a TDIU is granted. The Board will defer assignment of an effective date of the award of the TDIU to the AOJ in the first instance, so as to avoid any prejudice to the Veteran. Furthermore, the Board will defer to the RO in the first instance with regard to the associated issue of any entitlement to statutory special monthly compensation at the housebound rate pending implementation of the awards in this decision. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.M. Badaczewski, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.