Citation Nr: 20031111 Decision Date: 05/04/20 Archive Date: 05/04/20 DOCKET NO. 09-15 179A DATE: May 4, 2020 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT The evidence is at least in equipoise regarding whether the Veteran’s service-connected disabilities prevent her from securing and following gainful occupation. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from January 1989 to May 1989 and from July 1991 to December 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) regarding the issue of TDIU at a hearing in April 2016. This case was previously before the Board in July 2017, when TDIU was denied. The Veteran appealed the case to the United States Court of Appeals for Veterans Claims (Court). In April 2019, the Court vacated the portion of the Board decision denying TDIU and remanded the case for further proceedings. The case has been returned to the Board at this time for further appellate review. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) VA will grant entitlement to TDIU when the evidence shows that the veteran is precluded, by reason of his or her service-connected disabilities, from securing and following “substantially gainful employment” consistent with the veteran’s education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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 sole fact that the veteran was or is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the Board must evaluate whether there are circumstances in the veteran’s case, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). In evaluating a veteran’s ability to secure and follow a substantially gainful occupation, consideration may be given to his or her level of education, skills and training, and previous work experience. Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). The question is whether the veteran has the physical and mental ability, in the light of his or her history, education, skill, and training, to perform the types of activities required by the occupation at issue. Id. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Marginal employment includes occupation incapable of producing income that is more than marginal, Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016), and occupation where earned annual income exceeds the poverty limit but is done so in a protected environment such as a family business or sheltered workshop, 38 C.F.R. § 4.16(a). The regulations provide that if there is only one service-connected disability impeding employability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 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. 38 C.F.R. § 4.16(a). The Veteran is service-connected for depressive disorder, fibromyalgia, and irritable bowel syndrome (IBS). Her combined disability rating has been at least 70 percent, with at least one disability evaluated as 40 percent disabling, throughout the period on appeal. The Veteran is therefore schedularly eligible for TDIU throughout the appeal period, and the relevant question before the Board is whether the service-connected depressive disorder, fibromyalgia, and irritable bowel syndrome preclude the Veteran from securing and following substantially gainful employment. The Veteran has submitted two complete TDIU application forms. The first, in November 2008, indicates that she completed four years of high school and that she began but did not complete a vocational rehabilitation program with the State of Florida in 2007. The Veteran reported having last worked full-time as a telemarketer from March 2007 to June 2007, and as a therapist from June 2007 to August 2007. The telemarketing employer verified the Veteran’s employment as being from October 2006 to January 2007, and noted that she left the position to accept other employment. The employer for whom she worked as a therapist did not respond to requests for verification. On the second TDIU application, submitted in December 2013, the Veteran reported that she was enrolled in a school to obtain an associate’s degree in applied science, and that her physician had prescribed limitations on work. She also reported that she had attempted to obtain volunteer clerical work in March 2013. The Veteran described this position as consisting of five-hour days, five times a week, at an outreach facility for the homeless. This organization submitted a letter in December 2013 indicating that, due to the Veteran’s physical and mental disabilities, she was unable to perform her volunteer responsibilities and the organization terminated her volunteer role in October 2013. At a Board hearing in April 2016, the Veteran reported that she had completed an associate’s degree in medical office management, but that the symptoms of her IBS, fibromyalgia, and depression prevented her from being able to use it in a setting outside of her home. She also reported that she participated in a VA vocational rehabilitation program, and was deemed untrainable. A September 2015 letter from the vocational rehabilitation program indicates that her program was being discontinued because she was found unable to benefit from return-to-work services and she did not have any independent living needs at the time. In April 2020, the Veteran submitted an affidavit stating that she attempted to work recently, obtaining a job as a quality assurance auditor for 20 hours a week. She stated that she had to reduce her hours by half due to the chronic pain, depression, and IBS symptoms associated with her service-connected disabilities. The Veteran stated that she struggled to maintain focus due to chronic pain and IBS flares and to maintain motivation due to her depression. The Veteran submitted an earnings record from the Social Security Administration, showing no income from 2008 through 2017, and tax documents from the quality assurance position showing that she made limited income in 2018 and 2019. Regarding the symptoms of the Veteran’s service-connected disabilities, the record indicates the depressive disorder manifests in depression, anxiety, and difficulty maintaining effective relationships. At a July 2010 VA psychiatric examination, the Veteran reported that she got into arguments with coworkers and customers in her last job, and that she regularly gets into arguments, most recently with her brother over the telephone. In an August 2011 VA neuropsychology consultation, it was noted that the Veteran had difficulty with attention and concentration, problem solving, nonverbal skills, and memory, and that it took the Veteran a significant amount of time and repetition to learn new information. The neuropsychologist also noted cognitive linguistic impairments related to the Veteran’s depression, where her attention difficulties affected her immediate and delayed recall of information. In October 2013, the Veteran reported feeling overwhelmed by her depression and chronic pain approximately once a week. At a March 2015 VA psychiatric examination, the Veteran’s ability to respond appropriately to changes in the work setting and her ability to make simple, work-related decisions were considered moderately impaired. The examiner noted that the Veteran was able to maintain sufficient focus to complete the interview, and concluded that her ability to sustain concentration to task persistence and pace is considered mildly impaired. A February 2016 VA psychiatric examination concluded that the Veteran’s “[m]ental condition does not preclude occupational functioning in a sedentary, structured, solitary work environment that accommodates physical limitations.” Finally, at a February 2017 VA psychiatric examination, the Veteran reported that she ruminates about her problems, has a depressed mood, cannot focus, experiences racing thoughts, does not complete tasks and later is dissatisfied with that, and has a tendency to withdraw or isolate herself. The record reflects that the service-connected IBS manifests in symptoms including diarrhea, constipation, and urgency. In a May 2010 VA examination, the Veteran reported experiencing constipation approximately once per month, alternating with diarrhea approximately eight to twelve times per year, as well as bloating and cramp-like pain in her intestinal region. In an April 2015 VA examination, the Veteran additionally reported abdominal distension and gas. She reported that the symptoms had increased in frequency since the May 2010 examination. The Veteran testified at the April 2016 hearing that the frequency and severity of her IBS symptoms made her reluctant to spend much time in public, to avoid having an accident or worrying about the availability of a public bathroom. As for the service-connected fibromyalgia, in a May 2010 VA examination, the Veteran reported widespread musculoskeletal pain, stiffness, achiness, myalgia, and arthralgia in the neck, arms, legs, back, and chest, as well as unexplained fatigue, sleep disturbance, paresthesias, and headaches. In an April 2015 VA examination, the Veteran reported worsening of her fibromyalgia symptoms, with non-stop aching pain in the shoulders, elbows, knees, hips, hands, and lower back. She also reported tenderness around the rib cage and muscle spasms in her lower extremities. The Veteran’s VA treatment records reflect that the increased fibromyalgia pain exacerbate her depressive disorder symptoms, including low energy. In May 2017, the Veteran applied a second time for VA vocational rehabilitation assistance. In a June 2017 counseling session, she reported that her depression results in difficulties handling stress and that she experiences high levels of anxiety. She reported that her fibromyalgia manifests in chronic pain to most parts of her body, concentrated in her shoulders, upper back, torso, arms, and elbows. She reported that episodes of this chronic pain occasionally causes debilitating fatigue that makes it difficult to attend to her activities of daily living. The Veteran reported that her IBS symptoms include either diarrhea or constipation, and that stress causes an increase in accidents. The counselor noted several other disabilities that are not service-connected, but concluded that the three service-connected disabilities contribute in substantial part to the Veteran’s vocational impairment. In September 2017, the counselor found that it was infeasible for the Veteran to benefit from a program designed to return her to gainful employment. Similarly, the Veteran submitted a private vocational assessment completed in February 2020. The Veteran reported that the fibromyalgia pain prevented her from being able to sit or stand more than 30 minutes at a time, and walk more than a couple of blocks, lift more than five pounds. She also reported that the fibromyalgia pain impaired her ability to perform gross and fine manipulative tasks with her hands. She reported that she required the use of a restroom seven to ten times a day, for five to fifteen minutes each time, due to her IBS symptoms, and that her depressive disorder symptoms impaired her ability to get along with others and handle stress. The Veteran also reported that her fibromyalgia pain distracts her focus, and that her difficulty with instructions makes it difficult for her to complete tasks in a timely manner. After review of the evidence of record, the Board finds a TDIU is warranted in this case. To begin with, the Board finds that the employment reported in 2018 and 2019 is marginal employment, as the Veteran has not earned wages the exceed the poverty limit. The Veteran’s service-connected disabilities manifest in limitations on physical work, specifically the fibromyalgia. She is unable to stand or walk for prolonged periods of time, and is limited in how much weight she can lift. The Board notes that the Veteran has an associate’s degree in medical office management, which is education that lends itself to office-type work, including working on a computer, communicating with clients and colleagues, and clerical or administrative duties. The Board finds that the Veteran is limited in such sedentary types of work by her service-connected disabilities, particularly the fibromyalgia and depressive disorder. Although the service-connected IBS requires that she be near a restroom, this can readily be accommodated in many workplaces. However, the symptoms of the service-connected depressive disorder tend to affect the Veteran’s ability to process and carry out instructions, to concentrate, and to establish and maintain relationships. Particularly of note, the fibromyalgia manifests in chronic pain in the arms, shoulders, back, and hands, and limits the Veteran’s ability to sit for prolonged periods and to manipulate items with her hands, such as papers or a keyboard.   Although the Veteran has completed post-high school education, the evidence of record is at least in equipoise regarding whether she has the physical and mental ability, in the light of her history, education, skill, and training, to perform the types of activities required by the occupation for which she trained. See Ray, 31 Vet. App. at 72-73. Therefore, the Board finds that a TDIU is warranted. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Josey, 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.