Citation Nr: 21000740 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 16-25 826 DATE: January 6, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran’s service-connected disabilities preclude him from securing and following a substantially gainful occupation. CONCLUSION OF LAW The criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1987 to December 1987, and from January 1991 to May 1991. This matter comes before the Board of Veterans Appeals (Board) on appeal from a March 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a November 2019 hearing before the undersigned Veterans Law Judge. VA will grant entitlement to 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. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). 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. Because it is established VA policy that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled, the Board will submit to the Director of Compensation and Pension Services (Director) for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the above percentage standards. 38 C.F.R. § 4.16(b). Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion. However, individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran’s advancing age. 38 C.F.R. §§ 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. The Veteran contends that he is unable to obtain and maintain substantially gainful employment due to his service-connected disabilities. The Veteran’s fibromyalgia is rated at 40 percent from April 22, 2013; chronic diarrhea with gastroesophageal reflux disease (GERD) is rated at 30 percent from April 22, 2013; and, asthma is rated at 0 percent from April 22, 2013, and 30 percent from May 29, 2015. The Veteran’s combined disability rating is currently 70 percent. Thus, the Veteran meets the schedular criteria for consideration of TDIU. 38 C.F.R. § 4.16(a). The remaining question, therefore, is whether the Veteran’s service-connected disabilities render him unable to secure or follow a substantially gainful occupation. The Veteran’s submitted employment information shows he last worked in July 2013 as a nursing assistant. Prior to that, the Veteran worked as a computer tech and truck driver. Throughout the record, the Veteran has consistently stated that his muscle pain due to fibromyalgia and asthma have made it difficult for him to continue employment. The Veteran testified that he gets cramps and feels soreness and pain in his lower extremities, arms, and chest. He reported muscle spasms in his neck and constant aching all over his body. He also reported these symptoms occurring even when he is doing no physical activity. An April 2020 VA fibromyalgia examination indicates that the Veteran has widespread musculoskeletal pain, stiffness, fatigue and irritable bowel symptoms on a constant or nearly constant basis. The examiner also stated that the Veteran’s fibromyalgia does impact his ability to work as the Veteran gets easily fatigued and the widespread muscle pain with tender points would require him to take frequent rest breaks. In regard to the Veteran’s service-connected asthma, the Veteran testified that he feels constant pressure and tightness in his upper chest and throat, as well as difficulty breathing, even without doing any sort of physical activity. An April 2020 VA respiratory examination indicated the Veteran’s condition impacts his ability to work as he gets easily short of breath with mild to moderate exertion and requires frequent rest breaks. While these disabilities may not fully preclude all work, it is at least as likely as not that they would preclude the Veteran from securing and following a substantially gainful occupation, e.g. one where he would be working hours and making a salary as would meet or exceed the current poverty threshold. The Veteran’s work history shows he worked in positions that require a significant amount of physical labor (nursing assistant, truck driver). The Veteran’s service-connected fibromyalgia, which is shown to have serious constant or near constant symptoms, and his asthma and related breathing issues, would require the Veteran to take frequent breaks due to the widespread muscle pain, fatigue, and shortness of breath. The Board finds that this would make it extremely challenging for the Veteran to perform any sort of occupational physical exertion or function effectively in any work environment. The Board also notes that there is no medical evidence or opinion that contradicts the Veteran’s contentions regarding his conditions and their impact on his ability to secure and maintain employment. Thus, in light of the above, and resolving reasonable doubt in favor of the Veteran, the Board finds the evidence is at least in equipoise with respect to the issue of whether the Veteran is capable of obtaining and maintaining substantially gainful employment; thus, the claim for TDIU is granted. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Ariasaif, 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.