Citation Nr: 21065217 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 19-26 290A DATE: October 25, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected conditions is granted. FINDINGS OF FACT 1. For the entire period on appeal, from January 18, 2015, the Veteran's service-connected disabilities had a combined rating of 90 percent between the date of the filing of the TDIU claim and February 1, 2016, and 80 percent since February 1, 2016. 2. The Veteran's service-connected conditions, in combination, precluded gainful employment consistent with his education and occupational experience. CONCLUSION OF LAW The criteria for entitlement to a TDIU due to service-connected conditions have been met since January 18, 2015. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from January 2008 through August 2014. The Veteran testified at a hearing before the undersigned Veterans Law Judge in March 2021. A transcript of the hearing has been associated with the record. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected conditions. The Veteran contends he is entitled to a total disability rating based on individual unemployability. The Veteran's claim for TDIU was received on January 18, 2015 and denied by rating decision dated August 21, 2015. The Veteran timely appealed. Legal Criteria Total disability is considered to exist where there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). A TDIU may be granted where the schedular rating is less than 100 percent if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the Veteran is rated at 60 percent or more for a single service-connected disability, or rated at 70 percent for two or more service-connected disabilities and at least one disability is rated at least 40 percent. 38 C.F.R. §§ 3.340, 3.341, 4.16(a), 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. at 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). A veteran need not show complete unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). In determining employability for VA purposes, consideration is given to the level of education, special training, and work experience, but not to age or non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16(a), 4.19; see also Faust v. West, 13 Vet. App. 342 (2000). The question is whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Evidence In this case, the Veteran met the criteria for TDIU on a schedular basis under 38 C.F.R. § 4.16(a) for the entire appeal period under consideration, from January 18, 2015. During the appeal period, his service-connected obstructive sleep apnea was rated at 50 percent disabling; his Tarui's disease at 40 percent disabling prior to February 1, 2016, and at 10 percent disabling since February 1, 2016; his depression at 30 percent disabling prior to February 9, 2016, and at 50 percent disabling since February 9, 2016; his tinnitus at 10 percent disabling; his lumbar spine disability at 20 percent disabling prior to May 11, 2016 and at 10 percent disabling since May 11, 2016; his cervical strain at 10 percent disabling prior to May 11, 2016 and as 0 percent disabling since May 11, 2016; his GERD at 0 percent disabling prior to February 9, 2016, and at 10 percent disabling since February 9, 2016; and his right foot condition, lupus, rhinitis, heart murmur, and anemia were service-connected noncompensable conditions. His combined disability evaluation was 90 percent prior to February 1, 2016 and 80 percent since February 1, 2016. The question remains, then, whether the Veteran's service-connected conditions preclude him from obtaining and maintaining substantially gainful employment (work that is more than marginal, which permits the individual to earn a "living wage"). See 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356 (1991). The fact that a veteran may be unemployed or has difficulty obtaining employment is not determinative. Rather, the ultimate question is whether the Veteran, because of service-connected disabilities, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). This is so because a disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. Id. As noted, neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose, 4 Vet. App. at 363 (1993). However, VA does consider such factors as the extent of the service-connected disability, and employment and educational background. See 38 C.F.R. §§ 3.340, 3.341, 4.16(b), 4.19. The Board has considered the Veteran's educational and employment background. The evidence reflects that the Veteran has a high school education and completed one year of college (See January 2015 Veteran's Application for Increased Compensation Based on Unemployability (VA Form 21-8940). He previously had a certification as a heavy equipment operator, which is no longer active. He has no other licenses, degrees, or certifications. As to the Veteran's employment history, the evidence indicates that he worked as an embarkation clerk (supply/logistics) during his military service and was medically separated, having been found medically unfit for service due to his Tarui's disease. Since his separation from the military in August 2014, he has only worked a few "odd jobs." He has never worked in a full-time capacity. The Veteran testified at the March 2021 hearing that he worked for a couple of weeks in 2014 at the Comfort Inn, making $7.50-9.00 an hour, but he couldn't handle the additional duties beyond manning the front desk and it bothered him being subject to filming by security cameras. He stated he needed other people to help him get up from a seated position. He has stated that he was terminated due to being unable to keep up with the physical demands of the job, and also due to his demeanor and difficulty interacting with customers. The Veteran obtained remote employment through Williams Sonoma in 2018, but was terminated after several months due to absenteeism when he missed work due to hospitalization. The Veteran testified that sitting at a desk resulted in hand cramps and swelling as well as significant back pain and spasms, requiring frequent changing of positions, getting up and down and walking around, and difficulty concentrating. The Veteran also attempted to work for Uber and deliver packages for Amazon, but the driving exacerbated his fatigue and pain and he relied on his young son to assist and actually deliver the packages to doors. He testified that driving any more than four hours was impossible due to worsening pain and spasms in his back. Neither of those jobs lasted more than a few months. The Veteran testified he was and is in constant pain, which intensifies with any activity, and he experiences frequent muscle spasms in his back. He takes a muscle relaxer for his muscle spasms but testified he is unable to take other pain medication due to kidney problems associated with his Tarui's disease. He is frequently extremely fatigued, even within a couple hours of getting up in the morning. The Veteran's wife testified that any repetitious movement or sitting for long periods will "wipe him out," and noted it takes very little energy expenditure to result in extreme fatigue. She testified that when he plays with his young children for 20 minutes, he gets so fatigued that he is "done for the day." The Veteran submitted some tax records along with a signed statement from himself and his wife regarding their income history between 2014 and 2020, which indicated the Veteran's wife has earned nearly all taxable income for the family since his military separation, and the most he has earned in any year since separation was just over $5,000 during his short tenure working for Williams-Sonoma in 2018. The Veteran has not maintained any long term, full time, or consistent employment since his separation from the military in October 2014. The Veteran's medical records reflect consistent reports of constant pain, fatigue, and difficulty standing, sitting, and bending due to Tarui's disease and its secondary effects. The Veteran's Tarui's (glycogen storage) disease has led to cascading health issues including pain, fatigue, and exacerbations of acute rhabdomyolysis. The Veteran's condition has routinely required urgent care or emergency department visits due to worsening symptoms. For example, he presented to the emergency department in October 2014 complaining of shoulder and back pain lasting several days. The triage note indicated history of "many episodes" of rhabdomyolysis. He again presented to the emergency department in March 2015 complaining of arm and leg pain, described as sharp, worse with movement, and lasting greater than one day. He presented to the emergency department again in April 2017 with dark urine and muscle pain weakness for the past three days. He again presented to the emergency room in July 2017 due to a severe flare of back pain rated at 8 out of 10 on the pain scale, dark urine, and muscle stiffness and spasms for several days. He again presented to the emergency room in November 2018 with an exacerbation of muscle spasms and pain in his back, legs, and hands, and requesting pain medication. He was noted to be ambulating with the assistance of a cane. He again presented to the emergency room in July 2019 with dark urine and complaining of myalgias for three days. These episodes of acute rhabdomyolysis are noted to be secondary to his Tarui's disease. The Veteran's medical records also reflect significant impairments due to his mental health condition for example, in August 2019, he inquired about possible inpatient mental health treatment due to his "aggression" issues. The VA's mental disorders examination from May 2016 indicated the Veteran was prescribed 100 milligrams of sertraline daily for treatment of his depression. The Veteran was found to have occupational and social impairment with deficiencies in most areas due to his mental health symptoms. The Veteran reported depression, hopelessness, irritability, tearfulness lasting an entire day, feeling like the world was crashing down, fatigue, and withdrawal from others. He reported that in a month, he had approximately 20 days of depression, and five to ten days of remission. The VA examiner recommended at the time that the claimant seek follow-up treatment. The Veteran has faced financial issues, bankruptcy, and potential homelessness due to threatened eviction, which have likely exacerbated his mental health symptoms. In further support of his claim, the Veteran also submitted a vocational opinion dated February 2021 from a vocational expert who interviewed him and reviewed his VA claims file to include relevant VA examination reports and medical records. The vocational expert opined that the Veteran would be unable to secure and follow substantially gainful employment due to his service-connected physical and mental disabilities. She based this opinion on the Veteran's severe pain and fatigue symptoms, notably that his service-connected conditions prevented him from performing prolonged sitting, standing, and walking for periods longer than 5-10 minutes. During the interview, the Veteran reported to her that his hand spasms limited his ability to use a computer, and that the spasms in his back and hands were so severe as to "take his breath away." His severe pain and fatigue exacerbated his symptoms of depression. The vocational expert cited the Veteran's extreme fatigue associated with his Tarui's disease and sleep apnea. She concluded that he was unsuitable for sedentary employment and that he could not sustain adequate pace or productivity as required in competitive employment, to include unskilled labor. In her opinion, the Veteran's rates of absenteeism due to medical issues, his need to take frequent breaks, his depressive symptoms exacerbating his problems of attention and concentration, and his overall levels of widespread pain and fatigue, rendered him unable to secure or maintain gainful employment. As a vocational expert who has personally evaluated and interviewed the Veteran, her opinion is both competent and probative. Moreover, given that the Veteran's medical evidence is supportive of the private vocational opinion, it is of great probative value. Analysis Considering these restrictions on his employability as reflected by the medical records, VA examinations, and vocational expert's report, and resolving any doubt in favor of the Veteran, the Board finds that the effects and manifestations of his service-connected disabilities of Tarui's disease, sleep apnea, lumbar spine disability, and depression are sufficiently incapacitating as to result in unemployability in light of the severity of his symptoms, occupational and educational history, and experience. Although no VA examiners have indicated any of these individual conditions precludes the Veteran's employment, the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one, but rather a determination for the adjudicator considering the totality of the circumstances. See 38 C.F.R. § 4.16(a); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The Board finds that the Veteran's Tarui's disease and its manifestations of pain, fatigue, and muscle spasms in the hands and back, in combination with his lumbar spine disability and sleep apnea render him physically unable to maintain gainful employment. Given the Veteran's limitations on sitting, standing, and walking, it is unlikely the Veteran could perform even sedentary work. His sleep apnea further contributes to his fatigue from Tarui's disease, limits his ability to drive, and exacerbates his limitations in combination with the other conditions. The type of employment for which he is qualified given his history would tend to be unskilled labor, driving, or customer service positions. This occupational and educational history does not indicate that he would be able to secure employment that would enable sufficient accommodation for his disabilities, which is further evidenced by the fact that one of his previous employers terminated him as a result of missing work due to exacerbations of his disabilities. The Veteran's depression is exacerbated by his physical pain and limitations and further complicates his employability although his depression would not itself preclude physical aspects of employment, the symptoms prevent him from being able to maintain gainful employment in light of his occupational experience, when considered in combination with the physical pain and manifestations previously described. As noted by the vocational expert, his irritability, poor frustration tolerance, and decreased motivation, concentration, and depressed mood would impact his ability to recall information, maintain focus and concentration, or finish tasks in a timely manner. As noted previously, the Veteran has had intermittent employment during the appeal period. However, none of these jobs lasted more than a few months, and his highest annual salary was $5000. The Board finds that the Veteran's income for any periods of employment during the appeal period was under the poverty threshold and as such cannot be considered gainful. See Poverty Thresholds, U.S. Census Bureau, https://www.census.gov/ data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html. The Board also reiterates that the ultimate consideration is whether the Veteran, because of his service-connected disabilities, is incapable of performing physical or mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Board finds that the service-connected disabilities of Tarui's disease, sleep apnea, lumbar spine disability, and depression, in combination, preclude substantially gainful employment. These disabilities and the pain, muscle spasms, and fatigue associated therewith render the Veteran unable to sit, stand, walk or drive for any prolonged period, and his depressive symptoms interfere with his ability to focus, complete tasks, or effectively interact with coworkers or customers. The Veteran's employment history since separating from the military and his hearing testimony demonstrate that he has been unable to secure or maintain gainful employment due to the impacts of these service-connected disabilities. In sum, having carefully considered the Veteran's contentions, his education and employment background, and all the limitations imposed on him as a consequence of his service-connected disabilities, and resolving all doubt in the Veteran's favor, the Board finds that the criteria for entitlement to a TDIU have been met as of the date of his claim. See 38 C.F.R. § 4.16(a). See also 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Therefore, entitlement to TDIU from January 18, 2015 is granted. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Medley, 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.