Citation Nr: 20028875 Decision Date: 04/24/20 Archive Date: 04/24/20 DOCKET NO. 12-22 617 DATE: April 24, 2020 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The evidence fails to establish that the Veteran was precluded from engaging in substantially gainful employment due to her service-connected disabilities. CONCLUSION OF LAW The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from October 2000 to March 2001 and from February 2003 to September 2005. This matter is on appeal to the Board of Veterans’ Appeals (Board) from a February 2011 rating decision of a regional office of the Department of Veterans Affairs (VA). In June 2013, the Veteran testified at a hearing before a Veterans Law Judge who is no longer employed by the Board; a transcript of this hearing is associated with the record and no additional hearing has been requested. In November 2017, the Board remanded the matter for additional evidentiary development. TDIU The Veteran contends that her service-connected disabilities, in particular, fibromyalgia, prevent her from securing or following substantially gainful employment since 2006. See Form VA 21-8940 Veteran’s Application for Increased Compensation Based on Unemployability received September 2010. 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 is only one such disability, the disability shall be ratable at 60 percent or more, and 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. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). As explained below, the Board finds that the competent evidence of record does not show that the Veteran is unable to secure or follow a substantially gainful occupation by reason of her service-connected disabilities. Initially, the Board notes that the Veteran met the schedular criteria for TDIU. The Veteran’s service-connected disabilities are fibromyalgia at 40 percent; posttraumatic stress disorder (PTSD) with mood and anxiety disorder at 30 percent; migraine headaches at 30 percent; left shoulder disability at 20 percent; right shoulder disability at 30 percent; bilateral tinnitus at 10 percent; noncompensable ratings for back condition, muscle strain, and ovarian cysts; with a combined evaluation for compensation at 80 percent from June 2013, and 90 percent effective January 2015. Thus, the schedular criteria for TDIU are met. 38 C.F.R. § 4.16(a). With that said, however, the Board finds that the preponderance of the evidence is against the finding that the Veteran is precluded from engaging in substantially gainful employment solely as a result of the service-connected disabilities. Meaning, even considering the combined effects of all service-connected conditions, they do not render her unemployable. VA will grant entitlement to a TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from securing and following “substantially gainful employment” consistent with his education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The central inquiry is, “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Board observes that the record contains sufficient information of the Veteran’s employment and medical history. The Veteran’s listed her previous employment was a truck driver in the military, sales associate in retail, and a clerk, and indicated she has not worked since 2006. A review of the Social Security Administration records reflects a decision granting benefits due to the Veteran’s depression and anxiety disorder beginning 2007. In compliance with the November 2017 Board remand, the Veteran was afforded multiple VA contract examinations, which the Board finds significantly probative. An October 2019 VA contract examination for PTSD shows the Veteran’s level of impairment as “occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation.” The psychologist remarked that “the veteran was not able to come up with ways in which she feels her PTSD would affect her ability to work.” But added that panic attacks would most likely have an impact on the Veteran’s productivity if she had them at work. An October 2019 VA contract examination for headaches showed no evidence of worsening or improvement of migraine diagnosis. The examiner noted the Veteran’s report that her migraines are incapacitating and that she “can’t function or do anything when she gets migraines.” As October 2019 VA audiological examination shows the Veteran’s report that she does not feel tinnitus impacts her ability to have a job. An October 2019 VA contract examination for shoulder disability shows the examiner indicating the functional impact as “unable to reach overhead or work with arms away from body > 10 minutes at a time.” The examiner also remarked that the throughout the interview, the Veteran “provided vague answers and kept saying she can’t remember things and she has a hard time identifying what conditions causes what symptoms.” An October 2019 VA contract examination for back disability showed the condition as stable with no evidence of worsening. As for functional impact, the examiner noted unable to sit or stand for greater than 30-45 minutes at a time. An October 2019 VA contract examination for muscle strain of the upper back shows no impact on her ability to work. The Veteran also reported that she was unable to differentiate her muscle strain symptoms from fibromyalgia. Lastly, an October 2019 VA contract examination for fibromyalgia shows functional impact as, “unable to do physically demanding tasks due to fatigue and weakness.” The examiner added that “Veteran would be able to perform sedentary work with her condition but her fatigue would limit the number of hours she could work, would not be able to work a sedentary job greater than 4-6 hours.” The objective evidence of record, taken in total, does not suggest that the Veteran is unable to obtain or maintain substantially gainful employment solely as a result of her service-connected disabilities. The Board emphasizes that the persuasive VA medical opinions weigh against the Veteran’s claim and are found to have great probative value. The medical professionals consistently opined that the Veteran’s service-connected disabilities did not appear to be of such severity to render her unable to obtain or maintain substantially gainful employment. In particular, the October 2019 examiner specifically indicated that although the Veteran is “unable to perform manual labor due to fatigue and pain associated with fibromyalgia,” she would be able to able to perform sedentary job tasks with shorter hours. Meaning, she is not precluded from engaging in substantially gainful employment due to her service-connected disabilities and is clearly capable of sedentary work consistent with her education and skill set. Indeed, the Board has considered that the Veteran’s lay reports of worsening symptoms, which may result in some mild functional limitations, but as reiterated, the condition does not preclude work entirely. The evidence simply does not establish that the Veteran’s service-connected disabilities alone results in unemployability. As such, TDIU is not warranted in this case. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). The Board further acknowledges that the Veteran is competent to report symptoms of her service-connected disabilities and how such conditions affect her employability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). Additionally, she is credible in her reports during clinical evaluations of symptoms and their effect on his activities. But, as a lay person she is not competent to identify a specific level of disability according to the appropriate diagnostic code or to assess whether the symptoms preclude employment. Such competent evidence concerning the nature and extent of the Veteran’s service-connected disabilities, and in particular her ability to work, have been provided by the VA medical professional who examined her. As such, the Board finds the Veteran’s subjective complaints not competent medical evidence for this purpose. Thus, her assertions standing alone have little probative value and the Board assigns more weight to the October 2019 medical opinions provided by VA examiners. Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). Based on the foregoing, the Board finds that the preponderance of the evidence is against a finding that the Veteran is rendered unemployable due to her service-connected disabilities. Even though the Veteran met the applicable percentage standards, the Board nevertheless finds that the criteria under 38 C.F.R. § 4.16(a) have not been met and TDIU is not warranted. Accordingly, the claim must be denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. A., 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.