Citation Nr: 21070047 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 17-64 367 DATE: November 22, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected duodenal and gastric ulcer with gastroesophageal reflux disease (GERD) is granted. FINDING OF FACT The Veteran's service-connected duodenal and gastric ulcer with GERD prevents him from obtaining or maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU rating have been met. 38 U.S.C. §§ 1155, 5103, 5107, 5121; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1990 to December 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision. The Veteran requested a video-conference hearing before a Veterans Law Judge. See November 2017 VA Form 9, Appeal to the Board of Veterans' Appeals. Later, the Veteran elected to participate in a virtual hearing. In September 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a virtual hearing. A transcript of that hearing is of record. Entitlement to a TDIU rating due to service-connected duodenal and gastric ulcer with GERD is granted. The Veteran maintains that his service-connected duodenal and gastric ulcer with GERD prevents him from securing or following a substantially gainful occupation. Of note, during the September 2021 hearing, the Veteran advised that he has nausea, stomach pain, throat pain, acid reflux that feels like a heart attack, pain that interrupts sleep, and nighttime bowel movements. The Veteran also stated during the hearing that his symptoms cause sleep deprivation, fatigue, and related irritability. He cannot stand or sit for a period of time required for employment due to his symptoms. For the following reasons, the Board finds that Veteran's service-connected disability produce unemployability. Total disability ratings for compensation may be assigned, where the schedular rating is less than 100 percent, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of one or more service-connected disabilities without regard to advancing age or nonservice-connected disability. See 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a); Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993) (holding that the central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability); see also 38 C.F.R. § 4.19 (unemployability associated with advancing age or intercurrent disability may not be used as a basis for a total disability rating). The claimant's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be considered. 38 C.F.R. § 4.16(b). Certain percentage requirements must be satisfied in order to qualify for schedular consideration of entitlement to a TDIU rating. Specifically, if unemployability is the result of only one service-connected disability, this disability must be ratable at 60 percent or more. See 38 C.F.R. § 4.16(a). If it is the result of two or more service-connected disabilities, at least one must be ratable at 40 percent or more, with the others sufficient to bring the combined rating to 70 percent or more. Id. Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system such as orthopedic disabilities, will be considered as one disability for TDIU purposes. Id. The Veteran is service connected for duodenal and gastric ulcer with GERD, which is rated as 60 percent disabling from December 28, 2011. Accordingly, the criteria for schedular consideration of a TDIU rating are satisfied as of that date. Although the Board must consider "the effect of combinations of disability" in its determination, "neither the statute nor the relevant regulations require the combined effect to be assessed by a medical expert." Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Indeed, regulation places responsibility for the ultimate determination of unemployability on the Board or rating agency, not a medical examiner. Id. (citing 38 C.F.R. § 4.16(a)). Where separate medical opinions address the impact on employability resulting from independent disabilities, the Board is authorized to assess the aggregate effect of all disabilities. Id. 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. § 4.15. While the rating is based primarily upon the average impairment in earning capacity, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability, and to the effect of combinations of disability. Id. Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall generally be deemed to exist when a Veteran's earned income does not exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment may also be established, on a facts-found basis, when earned annual income exceeds the poverty threshold, including but not limited to employment in a protected environment such as a family business or sheltered workshop. Id. Consideration must be given in all claims to the nature of the employment and the reason for termination. Id. Where the evidence establishes that a veteran is gainfully employed on a full-time basis, a TDIU rating cannot be granted during this period as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994); see also Faust v. West, 13 Vet. App. 342, 356 (2000); 38 C.F.R. § 4.16(b) (reflecting that, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled). As the Veteran satisfies the criteria for schedular consideration for a TDIU rating, the only remaining consideration is whether his service-connected disability renders him unable to obtain and maintain substantially gainful employment. Importantly, the ultimate question is not whether the Veteran could actually find employment, but whether, in light of his service-connected disability, he was capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The claims folder demonstrates that the Veteran was employed at the latest, in 1998. See November 2017 Private Vocational Opinion. The Veteran's September 2014 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability includes employment history up to 1996. Here, the Board finds that the Veteran's service-connected disability produces unemployability. In other words, the Veteran is incapable of performing the physical and mental acts required by employment because of his service-connected duodenal and gastric ulcer with GERD. Van Hoose, 4 Vet. App. at 363. In this regard, the Board has considered the Veteran's educational and employment background and the limitations imposed on him as a consequence of his service-connected disability. The Veteran completed high school and obtained an associate degree in Criminal Justice. The Veteran provided that he did not complete any other education and training before or after he became too disabled to work. According to the November 2017 private vocational opinion, the Veteran's post-service work history demonstrates that he was employed as a security guard from approximately 1991 to 1993. He advised that because of his inability to sleep and lie down because of his GERD, he was caught falling asleep while at work many nights. He missed work due to sickness two to three times per week on average. The Veteran's employer was accommodating of his disability, but a primary function of the job was walking, and he could not perform this function due to pain. The most comfortable position for the Veteran was sitting down and this was not a significant part of the job and it prevented him from performing his security work effectively. He was terminated from this position because of his inability to perform the essential functions of the job and his excessive number of absences. The Veteran worked in a pawn shop from approximately 1993 to 1994. The job required a significant amount of standing, which was difficult for the Veteran. He was transferred to a less demanding location because of his limitations. Despite the transfer, the Veteran missed at least two days of work per week because of his unmanageable and unpredictable reflux and ulcer symptoms. He was nauseous and irritable from a lack of sleep. He was terminated due to his inability to perform the essential functions of the job and his excessive number of absences. From 1995 to 1996, the Veteran worked in an automotive parts store. He stated that he was constantly tired, took extra breaks, went home during lunch breaks, and did not return to work, and often vomited blood and had bloody stools. He was terminated from this position due to his inability to attend to his job tasks, stay at work, or attend his required shift on a regular basis. Lastly, the Veteran worked as a maintenance manager at a healthcare provider from 1997 to 1998. He advised that he was always tired, was forced to take more breaks than others, and left work early because of his symptoms. He missed two days of work per week or would leave work early after working for approximately three hours. He reported that his reflux and ulcer symptoms became unbearable after several hours. He had nausea, diarrhea, and stomach pain. As a result of his symptoms, he had excessive visits to the bathroom vomiting blood and had bloody stools. He was terminated from this position and has not worked since this time. The evidence contained in the Veteran's claims folder demonstrates that his service-connected disability has a significant negative impact on his employability. The private vocational opinion states that the Veteran's duodenal and gastric ulcer with GERD precludes him from sleeping well throughout the night and waking up with ease each morning; performing chores around his home in a timely and efficient manner; staying awake during the day due to extreme fatigue; laying down without the urge to vomit, nausea, experiencing an epigastric burning sensation, and significant drainage into his throat; concentrating and staying on task when nauseous and/or experiencing abdominal burning pain.. During a telephone interview with the Veteran that forms the basis of the vocational opinion, P.A.M. noted that he reported having a constant need to use the bathroom from diarrhea, abdominal pain, and/or having the feeling of needing to vomit and vomiting on an almost daily basis per the vocational opinion. His symptoms are "embarrassing" and cause him to isolate from others. The vocational opinion cites to a June 2014 VA treatment record that provides that the Veteran presented to the emergency room for abdominal pain. He also noted experiencing nausea. The Veteran's VA treatment records also describe complaints of generalized abdomen pain, dyspepsia with GERD, nausea, and vomiting. The June 2013 Stomach and Duodenal Conditions Disability Benefits Questionnaire provides that the Veteran has a gastric ulcer and duodenal ulcer. He has symptoms of abdominal pain that are only partially relieved by standard ulcer therapy. He has recurrent episodes of symptoms that are not severe and that occur four or more times per year and last for 10 days or more. He has recurrent episodes of severe symptoms that occur once per year and last for one day. Specifically, he has recurrent nausea that occurs once per year and lasts for 10 days or more. Additionally, he has periodic melena that occurs four or more times per year and lasts for 1 to 9 days and mild nausea that occurs four or more times per year and lasts 1 to 9 days. The vocational opinion provides that the Veteran's disability causes him difficulty sleeping as he is constantly awakened by an epigastric burning sensation, nausea, drainage in his throat, and severe irritation in his sinuses resulting from his reflux. He is unable to sleep laying down, so he must sleep at an incline. He has fallen asleep while driving due to excessive fatigue caused by a lack of sleep. Concerning the Veteran's activities of daily living, he takes two to three baths per day to clean himself after excessive and repetitive use of the bathroom. He has feelings of regurgitation and nausea while eating. The vocational opinion states that the Veteran's disability impacts his ability to perform work in any environment. His GERD, ulcers, and related symptoms, including a near-constant state of nausea, unpredictable episodes of vomiting, burning sensation and abdominal pain, and significant sleep disturbance preclude him from being employed in any work setting. In particular, the Veteran's disability negatively impacts his concentration, and in turn, his cognitive ability per the vocational opinion. His lack of sleep significantly reduces his ability to focus or complete tasks required of him in many daily activities. His spouse must perform many household chores that he cannot accomplish. He is unable to focus on anything other than his nausea or burning stomach symptoms during an episode. In sum, his sleep impairment, nausea, and vomiting prevent him from staying focused and thinking clearly in order to complete tasks in a timely and efficient manner. The Veteran's disability prevents him from performing job tasks at a reasonable or competitive speed. His speed would be significantly reduced due to his unpredictable abdominal pain, nausea, and ever-present gastrointestinal symptoms. He cannot perform daily activities at this time due to his excessive fatigue from a lack of sleep and utilizing the bathroom an excessive number of times. The Veteran would be unable to stand or walk for prolonged periods of time and he would be absent for long periods of time during the day or entirely due to the above symptoms. Related, the Veteran would not be a reliable employee due to his disability as his symptoms have caused and would continue to cause excessive absenteeism that is not tolerated by employers. Overall, the Veteran is limited in his ability to become and remain employed as his disability causes a persistent need to use the bathroom an excessive number of times throughout the day, difficulty falling and staying asleep due to position difficulty, comfort, food regurgitation, nausea with episodes of vomiting, bloody stools and vomiting blood, reduced speed, or inability to complete household chores, epigastric burning sensation, progressively worsening abdominal pain, and melena. His educational background limits his employment opportunities, and his work history is sporadic. The vocational opinion provides that full-time work with most employers is typically 35 hours per week. The Veteran's disability and related symptoms of nausea, melena, vomiting, epigastric burning pain, and unreliability precluded him from being able to perform his previous jobs. Per the Veteran and as documented by his physicians, his symptoms have not improved, and they continue to preclude him from performing any full-time position with reasonable consistency and for a reasonable period of time. In conclusion, the Veteran is incapable of performing substantially gainful employment. The private vocational opinion was provided by P.A.M., a certified rehabilitation counselor. P.A.M. possesses a Master of Science in Rehabilitation Counseling and is certified as a rehabilitation counselor. Thus, the Board finds the above vocational opinion to be especially probative as it represents the informed conclusion of a medical professional and is based on a review of the Veteran's medical and employment history, and the symptomatology reflected in the medical and lay evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from its reasoning); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The Board has carefully considered the Veteran's statements, his education and employment background, and the limitations imposed on him as a consequence of his service-connected disability. Considering the evidence indicating that the Veteran has been unable to obtain or maintain substantially gainful employment, and in the absence of any evidence that directly contradicts this conclusion, the Board finds that a TDIU rating is warranted based on the Veteran's service-connected duodenal and gastric ulcer with GERD. Accordingly, a TDIU rating is granted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 55. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mussey, Sean 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.