Citation Nr: A21017635 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 200604-91905 DATE: November 1, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT Resolving all doubt in the Veteran's favor, her service-connected disabilities of posttraumatic stress disorder (PTSD), fibromyalgia, and hypothyroidism in combination render her unable to secure or follow a substantially gainful occupation consistent with her education and work history. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.7, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1994 to March 2000, April 2008 to March 2009, June 2009 to July 2010, and October 2011 to December 2012. This matter comes before the Board of Veterans' Appeals (Board) from a rating decision issued in May 2020 issued by a Department of Veterans Affairs (VA) Regional Office under the modernized appeals system known as the Appeals Modernization Act (AMA). In June 2020, the Veteran filed a timely Decision Review Request: Board Appeal (Notice of Disagreement) (VA Form 10182) and requested a hearing before a Veterans Law Judge, which was held before the undersigned in July 2021. A transcript of the hearing is associated with the record. Based on the Veteran's election, the Board may only consider the evidence of record at the time of the issuance of the rating decision on May 13, 2020, and any evidence submitted by the Veteran at the hearing or within 90 days thereafter; however, she waived the 90 day evidence submission period. 38 C.F.R. § 20.302(a) Entitlement to a TDIU. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 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. 38 C.F.R. § 4.16(a). 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. 447, 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) (level of education is a factor in deciding employability); Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the United States Court of Appeals for Veterans Claims (Court) defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) to include two components: one economic and one noneconomic. The economic component means 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. The non-economic component includes consideration of the veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. The appeal period before the Board begins on July 11, 2019, the date VA received the Veteran's VA Form 21-0819, DoD Referral to Integrated Disability Evaluation System (as identified in the May 2020 rating decision on appeal), plus the one-year look-back period, and ends on May 13, 2020, the date of the issuance of the rating decision on appeal. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). For the entire appeal period, the Veteran is service-connected for PTSD, evaluated as 70 percent disabling; fibromyalgia, evaluated as 40 percent disabling; hypothyroidism, evaluated as 30 percent disabling; left shoulder impingement syndrome with rotator cuff tendonitis, evaluated as 20 percent disabling; tinnitus, evaluated as 10 percent disabling; right ankle lateral collateral ligament sprain, evaluated as 10 percent disabling; right thumb nail deformity, evaluated as noncompensably disabling; and allergic dermatitis, evaluated as noncompensably disabling, which combine to a 90 percent schedular rating. Consequently, as favorably found by the Agency of Original Jurisdiction (AOJ) in the May 2020 rating decision, the Veteran meets the schedular threshold for consideration of a TDIU for the entire appeal. As such, the remaining inquiry is whether her service-connected disabilities render her unable to secure or follow a substantially gainful occupation consistent with her education and work history. In this regard, in the Veteran's February 2020 Application for Increased Compensation Based on Unemployability (VA Form 21-8940), she reported that she last worked full-time on December 4, 2018, as a quality technician. She further indicated that she held prior positions in production and nuclear security. Additionally, at an August 2019 VA PTSD examination, the Veteran reported that, prior to the military, she worked in retail and, after joining the military, she worked as a procurement specialist, an IBM services coordinator, a purchasing specialist, a quality technician, and a security specialist. At her July 2021 Board hearing, she testified that she has performed physical and sedentary duties throughout her employment history. In her VA Form 21-8940, she also reported that she completed high school and two years of college. With respect to the functional limitations associated with her service-connected disabilities, the Veteran has primarily alleged that her PTSD, fibromyalgia, and hypothyroidism render her unemployable. In this regard, in the May 2020 rating decision, the AOJ favorably found that the Veteran was not working due to her disabilities of PTSD and fibromyalgia. Under the AMA, the Board is bound by such favorable findings. 38 C.F.R. § 3.104(c). Furthermore, at her July 2021 Board hearing, the Veteran testified that she left her most recent position in December 2018 due to her PTSD symptoms, to include her short temper, which included impulse control issues and angry outbursts, and difficulty with working with supervisors and co-workers. She also indicated that she experienced a desire to punch a co-worker, had difficulty with hypervigilance, and had reduced productivity due to her depression. The Veteran reported that her performance reviews reflected her supervisors' observations of her negative attitude, outbursts, and self-isolation. The Veteran also testified that her fibromyalgia made it difficult to work different shifts and perform physical duties, to include sitting or standing for prolonged periods of time, climbing stairs, walking too much, and riding or driving in a car. She further reported that such disability also adversely impacted her memory to the extent that she would forget things, had to ask questions about things she already knew, had to write things down, and missed details, which was especially problematic while working as a quality technician. The Veteran also indicated that her hypothyroidism resulted in difficulty speaking and an inability to handle stress. Turning to the medical evidence of record, VA treatment records dated in October 2018 reflect the Veteran's report of experiencing chronic pain all over her body due to fibromyalgia, which resulted in limitation of activities, and depression/anxiety with a history of suicidal or homicidal ideation. At a January 2019 VA examination, the Veteran reported that her hypothyroidism resulted in hoarseness, fatigue, and lack of focus and physical examination revealed mental disturbance described as slowing of thought; however, the examiner found that such disability did not impact her ability to work. At an August 2019 VA examination, it was noted that the Veteran's PTSD resulted in occupational and social impairment with reduced reliability and productivity. However, the Board observes that the currently assigned 70 percent rating for such disability contemplates occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. At such time, the Veteran reported that, while she had no history of physical altercations at work, she had previously been fired for verbal altercations. Her PTSD symptoms were noted to include depressed mood; anxiety; suspiciousness; panic attacks more than once a week; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; flattened affect; difficulty in understanding complex commands; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work like setting; obsessional rituals which interfere with routine activities; and impaired impulse control, such as unprovoked irritability with periods of violence. A September 2019 VA treatment record reflects the Veteran's report of an increase in anxiety and depression, crying spells, an inability to sleep, and irritability/poor frustration tolerance with verbal and physical outbursts, as well as chronic pain from fibromyalgia. At an October 2019 VA examination, the Veteran reported that her hypothyroidism currently resulted in pressure, hoarseness, and swelling, and the examiner indicated that such disability impacted her ability to work in that, due to fatigue and lack of sleep, she would be unable to focus and risk possible injury. At a separate examination conducted the same month, the Veteran reported that her fibromyalgia was manifested by chronic pain, tingling, stiffness, and numbness. Upon examination, it was noted that she had widespread musculoskeletal pain, stiffness, fatigue, sleep disturbances, paresthesias, headache, depression, and anxiety that were constant or nearly constant. The Veteran's trigger points were noted to be in the bilateral low cervical region, trapezius muscle, supraspinatus muscle, lateral epicondyle, gluteal, and greater trochanter. The examiner ultimately found that the Veteran's fatigue and lack of sleep with occasional bouts of weakness associated with her fibromyalgia limited her functioning in regard to her ability to work. An October 2019 VA treatment record reflects the Veteran's report that she was felt sick with a feeling that she would pass out, a racing heart, sweating, feeling hot and flushed, extreme fatigue, fogginess, and anger to the point where she would become violent. In this regard, she reported a verbal altercation with a stranger at a dog park and punching her boyfriend. In November 2019 and January 2020, the Veteran reported that she was having difficulty managing her anger as she was feeling irritable, experienced verbal outbursts, and felt like she might throw things. While she was not currently experiencing suicidal or homicidal ideation, she had a history of suicidal ideation with a prior attempt three years previously. In April 2020, a VA examiner reviewed the record and found that the Veteran's PTSD symptomatology, e.g., panic attacks, irritability, suspiciousness, etc., interferes significantly with her ability to work. In support of such determination, she noted that the August 2019 VA examination reflected that the Veteran had been fired for verbal altercations and her VA treatment records reflect job changes. However, she also found that there was no other evidence showing that the Veteran's PTSD symptomatology caused clinically significant impairment in occupational functioning such that she is precluded from work. A separate VA examiner also reviewed the record and found that the Veteran was able to perform sedentary work, described as exerting up to 10 pounds of force occasionally and/or a negligible amount of force frequently to lift, carry, push, and pull. It was further noted that sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. In this regard, it was observed that jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met. While the April 2020 VA examiners' opined that the Veteran's PTSD did not preclude employment and she was able to perform sedentary work, the Board resolves all doubt in her favor and finds that the remainder of the evidence of record shows that her PTSD, fibromyalgia, and hypothyroidism in combination render her unable to secure or follow a substantially gainful occupation consistent with her education and work history. In this regard, the record reflects that the Veteran has completed high school and two years of college, and her work history includes positions in retail, procurement, services coordination, purchasing, quality control, production, and nuclear security and has involved the performance of both physical and sedentary duties, as defined by the April 2020 VA examiner. However, as a result of her PTSD, fibromyalgia, and hypothyroidism, which result in the previously detailed symptoms, to specifically include impaired impulse control resulting in verbal and physical altercations; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; difficulty in understanding complex commands, establishing and maintaining effective work and social relationships, and adapting to stressful circumstances, including work or a work like setting; impairment of memory; slowing of thought; fatigue; occasional bouts of weakness; lack of focus; and an inability to stand or sit for a prolonged period of time, the Board finds that she is unable to perform the physical and mental acts required to perform the job duties commensurate with her education and work history. Therefore, the Board resolves all doubt in the Veteran's favor and finds that her service-connected disabilities of PTSD, fibromyalgia, and hypothyroidism in combination render her unable to secure or follow a substantially gainful occupation consistent with her education and work history. Consequently, a TDIU is warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Spielmann, Jill F. 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.