Citation Nr: 21069821 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 10-06 823 DATE: November 19, 2021 ORDER Entitlement to an initial rating of 10 percent prior to December 21, 2018, for gastroesophageal reflux disease (GERD) with hiatal hernia is granted. Entitlement to an initial rating in excess of 10 percent for GERD with hiatal hernia is denied. Entitlement to an initial rating of 20 percent prior to December 21, 2018, for fibromyalgia is granted. Entitlement to initial ratings in excess of 20 percent prior to December 21, 2018, and 40 percent from that date for fibromyalgia is denied. Entitlement to a total disability rating due to individual unemployability (TDIU) is granted from October 1, 2007. FINDINGS OF FACT 1. Throughout the relevant rating period, the Veteran's GERD with hiatal hernia has been manifested by pyrosis and regurgitation but has not been productive of considerable or severe impairment of health. 2. During the relevant period prior to December 21, 2018, the Veteran's fibromyalgia was manifested by widespread musculoskeletal pain and tender points with associated fatigue, sleep disturbance, and other symptoms that were episodic and present more than one-third of the time but were not refractory to therapy. 3. Since December 21, 2018, the Veteran has been in receipt of the highest schedular rating for fibromyalgia, and the symptoms attributable to the fibromyalgia are contemplated by his schedular ratings. 4. The Veteran was unable to secure or follow a substantially gainful occupation due to his service-connected disabilities during the entire relevant period prior to October 1, 2009. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating of 10 percent prior to December 21, 2018, for GERD with hiatal hernia have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.14, 4.21, 4.114, Diagnostic Code 7346. 2. The criteria for entitlement to an initial rating in excess of 10 percent for GERD with hiatal hernia have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.14, 4.21, 4.114, Diagnostic Code 7346. 3. The criteria for entitlement to an initial rating of 20 percent prior to December 21, 2018, for fibromyalgia have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.14, 4.21, 4.71a, Diagnostic Code 5025. 4. The criteria for entitlement to initial ratings in excess of 20 percent prior to December 21, 2018, and 40 percent from that date for fibromyalgia have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.14, 4.21, 4.71a, Diagnostic Code 5025. 5. The criteria for entitlement to a TDIU have been met from October 1, 2007. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1985 to September 2007. In March 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The Board remanded this case in January 2013, September 2015, September 2016, and August 2021. The January 2013 remand directed the Agency of Original Jurisdiction (AOJ) to request that the Veteran identify any outstanding treatment records, obtained the Veteran's updated VA treatment records, and afford the Veteran examinations to determine the current nature and severity of his fibromyalgia and GERD with hiatal hernia. The September 2015 and September 2016 remands directed the AOJ to reschedule the examinations as to the Veteran's fibromyalgia and GERD. The August 2021 remand directed the AOJ to readjudicate the appeal in view of additional evidence. The Board finds that VA has at least substantially complied with the Board remand directives. Specifically, the AOJ sent the Veteran a letter in February 2013 requesting that he identify and authorize release of any additional relevant medical treatment records; obtained the Veteran's updated VA treatment records through early August 2021; and afforded the Veteran VA examinations in December 2018 that provide the information necessary to render a full decision as to the issues on appeal. See 38 U.S.C. § 5103A(b); Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues denied in this decision. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in the decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Increased Rating Issues Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). 1. Entitlement to a compensable initial rating prior to December 21, 2018, and an initial rating in excess of 10 percent from that date for GERD with hiatal hernia The Veteran seeks higher initial ratings for GERD with hiatal hernia. The applicable rating period is from October 1, 2007, the effective date for the award of service connection for that disability, through the present. See 38 C.F.R. § 3.400. The Veteran has contended that the noncompensable rating assigned prior to December 21, 2018, is not correct because he continues to have symptoms despite taking medications for the disability. The Veteran's GERD is currently rated as noncompensable prior to December 21, 2018, and at 10 percent from that date under 38 C.F.R. § 4.114, Diagnostic Code 7346, which pertains to hiatal hernia and is most closely analogous to the Veteran's unlisted disability of GERD with hiatal hernia. See 38 C.F.R. § 4.20. Under Diagnostic Code 7346, a 10 percent rating is assigned for two or more of the symptoms for the 30 percent rating of less severity. A 30 percent rating is assigned for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A maximum 60 percent rating is assigned for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. The Veteran underwent a VA examination in March 2008 that included findings for GERD. At that examination, the Veteran endorsed being on proton pump therapy but denied symptoms of excessive thirst, nausea, vomiting, and hematemesis. In December 2007, the Veteran told his medical treatment provider that he has heartburn sometimes. At the March 2012 Board hearing, he testified that he takes Prevacid for his GERD, but that the disability still causes reflux and "a lot of burning." The Veteran's medical treatment records indicate that his GERD with hiatal hernia has been "under control" and "stable" with medications. At the December 2018 VA esophageal conditions examination, the Veteran reported that he takes Omeprazole daily and that his GERD with hiatal hernia nevertheless causes infrequent episodes of epigastric distress, pyrosis, reflux, regurgitation, substernal pain, sleep disturbance due to reflux, and two episodes per year of vomiting. In view of the above, the Board finds that an initial rating of 10 percent, and no higher was warranted throughout the relevant period. In so finding, the Board affords probative weight to the Veteran's testimony at the March 2012 hearing that his GERD with hiatal hernia manifests in pyrosis and regurgitation despite him being on medications. However, the medical treatment records show that the disability has been controlled and stable on medications, and do not show that he has had persistently recurrent epigastric distress or other symptoms productive of considerable or severe impairment of health. Rather, the medical treatment records show that the Veteran has made few complaints in regard to the disability and has received little treatment for the disability beyond being prescribed medications. Neither the Veteran nor his representative has raised any other issues with regard to the rating for the service-connected GERD with hiatal hernia, nor have any other such issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017). The Board therefore finds that the criteria for an initial rating of 10 percent, and no higher, for GERD with hiatal hernia have been met throughout the relevant period. Accordingly, there is no basis for staged rating of the disability pursuant to Fenderson, 12 Vet. App. at 126-27. To the extent that the Veteran seeks an initial rating in excess of 10 percent for GERD with hiatal hernia, the preponderance of the evidence is against the appeal, the doctrine of reasonable doubt is not for application, and the appeal must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to initial ratings in excess of 10 percent prior to December 21, 2018, and 40 percent from that date for fibromyalgia The Veteran seeks a higher initial rating for fibromyalgia. The applicable rating period is from October 1, 2007, the effective date for the award of service connection for that disability, through the present. See 38 C.F.R. § 3.400. The Veteran contends that his treatment records and the medical statements of record "show only some relief with pain management and that the condition is more in line with someone who is service connected at 40%." The Veteran's fibromyalgia is currently rated at 10 percent prior to December 21, 2018, and at 40 percent from that date under 38 C.F.R. § 4.71a, Diagnostic Code 5025, which pertains to fibromyalgia. Diagnostic Code 5025 defines fibromyalgia as widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbance, stiffness, paresthesias, headache, irritable bowel symptoms, depression, anxiety, or Raynaud's-like symptoms. A Note to Diagnostic Code 5025 provides that widespread pain means pain in both the left and right sides of the body, that is both above and below the waist, and that affects both the axial skeleton (i.e., cervical spine, anterior chest, thoracic spine, or low back) and the extremities. Under Diagnostic Code 5025, a 10 percent rating is warranted for symptoms that require continuous medication for control. A 20 percent rating is warranted for symptoms that are episodic, with exacerbations often precipitated by environmental or emotional stress or by overexertion, but that are present more than one-third of the time. A 40 percent rating is warranted for symptoms that are constant, or nearly so, and refractory to therapy. According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY (11th Ed. 2007), "refractory" means resistant to treatment or cure, or unresponsive to stimulus. Turning to the evidence of record relevant to the period prior to December 21, 2018, the Veteran complained of joint pain and muscle aches and reported a history of taking Lyrica in January 2008. At the March 2008 VA examination, the Veteran reported multiple joint arthralgias with stabbing and shooting pain, numbness, and weakness. In early October 2008, the Veteran was seen for a neurology consultation, where he reported an approximately 5-year history of constant achy pain or sharp pain in different places at different times, numbness in the hands and arms, and a feeling of weakness in the legs after running 10 kilometers. The assessment at that time was of rule-out diagnosis of multiple sclerosis but with the possibility of radicular pain or fibromyalgia with referral pain. The Veteran was told to decrease or stop his use of Vicodin for pain and to take precautions with his other medications. In late October 2008, he was seen for a rheumatology consultation, where he reported that he had discontinued all medications at the request of the neurologist. He stated that although his pain had not been completely controlled with the medications, it became even worse after he discontinued his medications. He reported continued generalized soft tissue pain, frequent dull headaches, and sleep disturbances at that time, and was assessed with fibromyalgia. At a March 2009 VA examination, the Veteran reported periods of neck, shoulder, elbow, hand, knee, hip, and back pain that come and go for about 2 minutes at a time, but that sometimes last longer. The pain moves around the body with tingling and numbness into the arm. He takes Cymbalta for his fibromyalgia. At a July 2009 VA examination, the Veteran reported migrating arthralgias and variable numbness in the extremities, chronic dull headaches, intermittent weakness, and nocturnal myalgias and numbness despite taking Cymbalta, Ambien, and Lyrica. In April 2010, he reported an increase in his generalized pain. In May 2010, he reported that was the same after recently starting on Savella. However, in December 2010, he reported that Savella helped to some extent and that when he discontinued the medication for a few days his symptoms got worse. In April 2011, he had a flareup in his fibromyalgia symptoms. However, the following month in May 2011, he reported that his fibromyalgia was under control with Lyrica. At the March 2012 Board hearing, the Veteran testified that he is constantly tired due to sleep disturbance from pain and his service-connected sleep apnea; that he has muscle and joints pain with trigger points on the back, neck, and hips; and that he takes pain medications and antidepressants to treat his fibromyalgia. He stated that he still has fibromyalgia symptoms despite the medications, but "I think it would be a lot worse if I wasn't taking the meds." He further stated that the fibromyalgia episodes are almost constant with spikes that require him to sit down. Subsequent medical treatment records describe the Veteran's fibromyalgia as " stable " on medications. In October 2016, the Veteran described his fibromyalgia as "cyclical". In view of the foregoing, the Board concludes that during the relevant period prior to December 21, 2018, the Veteran's fibromyalgia manifested by widespread pain and tender points, fatigue, sleep disturbance, paresthesias, and headache that were episodic in nature but were present more than one-third of the time. As such the criteria for a rating of 20 percent under Diagnostic Code 5025 were met during that period. The Board further concludes that the criteria for a higher rating of 40 percent under Diagnostic Code 5025 were not met during that period. Specifically, although the Veteran's fibromyalgia symptoms may have been constant or nearly constant at times, they were not refractory to therapy at any time during the relevant period prior to December 21, 2018. The medical treatment records in October 2008 and December 2010 show that the Veteran's medications were effective in lessening the severity of his fibromyalgia symptoms, as his symptoms increased when he discontinued his medications. The Veteran's testimony at the March 2012 also indicates that his fibromyalgia has responded favorably to medications and has not been resistant to treatment or unresponsive to stimulus. As such, the Board finds that a rating of 20 percent, and no higher, was warranted for the Veteran's fibromyalgia prior to December 21, 2018. The evidence relevant to the period beginning December 21, 2018, does not show that a rating in excess of 40 percent was warranted for the Veteran's fibromyalgia during that period. As noted above, 40 percent is the highest schedular rating for fibromyalgia. At the December 2018 VA examination, the Veteran reported taking Mirtazapine for his fibromyalgia and having symptoms of widespread musculoskeletal pain, stiffness, fatigue, sleep disturbance, paresthesias, headache, depression, and irritable bowel symptoms related to his fibromyalgia. Such symptoms are expressly contemplated by his schedular rating under Diagnostic Code 5025. The Board notes that the 40 percent rating for fibromyalgia was assigned as of the date of the December 2018 VA examination. The Board acknowledges that the effective date for an increased rating depends on when the change in disability level can be ascertained and is not assigned mechanically as of the date of an examination showing an increase. Swain v. McDonald, 27 Vet. App. 219, 224 (2015); see also 38 C.F.R. § 3.400(o)(2). However, in this case the evidence of record does not show that an increase in disability may be ascertained prior to the date of the December 2018 VA examination such that a 40 percent rating may be assigned from an earlier date. As discussed above, the evidence of record relevant to the period prior to December 21, 2018, does not show that the Veteran's fibromyalgia was refractory to therapy, which is required for a 40 percent rating under Diagnostic Code 5025. Neither the Veteran nor his representative has raised any other issues with regard to the rating for the service-connected fibromyalgia, nor have any other such issues been reasonably raised by the record. See Yancy, 27 Vet. App. at 495; Doucette, 38 Vet. App. at 369-70. The Veteran's fibromyalgia has been manifested by widespread musculoskeletal pain and tender points, fatigue, sleep disturbance, stiffness, paresthesias, headache, irritable bowel symptoms, and depression, which are expressly considered under the schedular rating criteria. In addition, he is separately service connected for disabilities of the cervical spine, shoulders, elbows, wrists, hands, hips, thighs, knees, and feet, as well as for major depressive disorder and obstructive sleep apnea with cough, and is therefore already separately compensated for those disabilities. In summary, the Board finds that, for the Veteran's fibromyalgia, an initial rating of 20 percent, and no higher, was warranted during the relevant period prior to December 21, 2018, but that an initial rating in excess of 40 percent was not warranted during the period beginning December 21, 2018. To the extent the Veteran seeks initial ratings higher than those previously assigned and those assigned herein, the preponderance of the evidence is against the appeal, the doctrine of reasonable doubt is not for application, and the appeal must be denied. 38 U.S.C. § 5107(b); see also Gilbert, 1 Vet. App. 49. TDIU 3. Entitlement to a TDIU prior to March 1, 2009 The Veteran seeks entitlement to a TDIU prior to March 1, 2009. The Veteran raised the issue of entitlement to a TDIU as part of his appeals for increased initial ratings for GERD and fibromyalgia. Therefore, the relevant period for consideration is the same as in those appeals. Namely, the applicable period is from October 1, 2007, the effective date for the award of service connection for those disability, through February 28, 2009, the day prior to the effective date of the previous award of a TDIU. See 38 C.F.R. § 3.400. A TDIU may be assigned where the schedular rating is less than total and a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id. For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3)disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran had the following compensably rated service-connected disabilities during the relevant period: obstructive sleep apnea with chronic cough of unknown etiology, rated at 50 percent; major depressive disorder, rated at 30 percent; fibromyalgia, rated at 20 percent; left knee traumatic arthritis, rated at 10 percent; patellofemoral syndrome of the right knee with arthritis changes, rated at 10 percent; degenerative disc disease with hypertrophic osteophytes of the cervical spine, rated at 10 percent; arthritis of the left hand, rated at 10 percent; arthritis of the right CNC joint, thumb, rated at 10 percent; trochanteric bursitis of the left hip, rated at 10 percent; trochanteric bursitis of the right hip, rated at 10 percent; status-post right rotator cuff repair with decompression, rated at 10 percent; left shoulder impingement, rated at 10 percent; hallux rigidus with plantar fasciitis of the right foot, rated at 10 percent; hallux rigidus with plantar fasciitis of the left foot and degenerative disc disease of the first metatarsophalangeal joint, rated at 10 percent; and GERD with hiatal hernia, rated at 10 percent. He also had the following noncompensably rated disabilities during the relevant rating period: limitation of extension of the right and left thighs; limitation of flexion of the right and left thighs; lateral epicondylitis of the right and left elbows; flexor carpi radialis tendinitis of the right wrist; extensor carpi ulnaris tendinitis of the left wrist; benign prostatic hypertrophy; and left knee scar. He had a combined disability rating of 90 percent throughout the relevant period. The Veteran met the schedular percentage requirement for a TDIU prior to March 1, 2009, because he had at least one disability rated at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Accordingly, the Board may consider the claim for a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). Upon review of the record, the Board concludes that the Veteran had a narrow vocational profile due to his service-connected disabilities prior to March 1, 2009, such that he was unable to secure or follow a substantially gainful occupation. Regarding the Veteran's physical limitations, the record shows that he had difficulty standing, walking, and sitting for extended periods, performing heavy lifting, and bending due to his service-connected disabilities of the cervical spine, shoulders, elbows, wrists, hands, hips and thighs, knees, and feet. He was additionally limited in terms of concentration, persistence, and pace due daytime sleepiness from his service-connected obstructive sleep apnea and mental health symptoms from his major depressive disorder. He also reported that the chronic cough associated with his obstructive sleep apnea and service connected as part of that disability would cause prolonged episodes severe enough to induce vomiting, changes in bowel patterns, and inability to speak, and to bring him to near faintness. Given the severity of his service-connected disabilities, as shown in the medical treatment records and VA examinations of record, the Board finds him credible in those reports. Thus, from a physical standpoint, the Veteran's service-connected disabilities limited him to sedentary work, which for purposes of this decision the Board defines as work that requires no more than a total of 1 hour of standing and/or walking in an 8-hour workday and involves light lifting of no more than 10 pounds. From a psychiatric standpoint, the Veteran would not be able to maintain attention and concentration for prolonged periods and could not perform detailed tasks. In March 2009, VA received two VA Forms 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, from the Veteran's former employers. The first employer indicated that the Veteran worked in sales and installation from May 2007 to March 2008 for 30 hours per week and was given time off for sickness, surgery, and doctor appointments. He lost a total of 3 months of work due to disability. He was terminated from that position due to "Too much work missed due to health concerns." The second employer indicated that the Veteran worked as a veterans service officer from May 2008 to February 2009 for 37.5 hours per week and was given time off to go to the doctor as needed. He lost more than 50 days of work due to disability and left the job after resigning. The medical treatment records dating during those two periods of employment indicate that the Veteran mainly sought treatment for his service-connected disabilities, particularly his chronic cough of unknown etiology, fibromyalgia, and service-connected musculoskeletal disabilities. In view of the foregoing, the Board concludes that, due to his service-connected physical and psychiatric functional limitations, the Veteran would have been unable to complete more than sheltered work during the period from October 1, 2007, to February 28, 2009. Specifically, the record indicates that the Veteran's physical service-connected disabilities prevented him from performing more than a reduced range of sedentary work with the ability to take breaks for coughing episodes and to attend medical treatment visits. His service-connected psychiatric disability further limited him to simple and repetitive work not requiring prolonged attention and concentration. The March 2009 VA Forms 21-4192 show that his two employers during that period afforded him special accommodations for his service-connected disabilities that would not generally be tolerated in the competitive workforce. Indeed, the Veteran was terminated from a less than fulltime position in March 2008 because he missed 3 months of work in less than a year due to his health concerns. As such, the Board concludes that the Veteran required a sheltered environment within a narrow occupational range to accommodate his substantial service-connected limitations. Such work constitutes marginal employment, which cannot be considered substantially gainful employment. See 38 C.F.R. § 4.16. In view of the foregoing, the Board concludes that the evidence is at least in equipoise as to whether the Veteran is entitled to a TDIU during the period from October 1, 2007, to February 28, 2009. Therefore, entitlement to a TDIU is granted from October 1, 2007. 38 U.S.C. § 5107(b); see also Gilbert, 1 Vet. App. 49 (1990). MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. J. Anthony, 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.