Citation Nr: 21071756 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 15-45 244 DATE: December 1, 2021 ORDER Entitlement to service connection for a lumbar spine disability is denied. Entitlement to service connection for a right arm disability is denied. Entitlement to service connection for a left arm disability is denied. Entitlement to service connection for a right shoulder disability is denied. Entitlement to service connection for a left shoulder disability is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's lumbar spine disability is due to service. 2. The preponderance of the evidence is against finding that the Veteran's right arm disability is due to service. 3. The preponderance of the evidence is against finding that the Veteran's left arm disability is due to service. 4. The preponderance of the evidence is against finding that the Veteran's right shoulder disability is due to service. 5. The preponderance of the evidence is against finding that the Veteran's left shoulder disability is due to service. 6. The evidence of record is at least equipoise that the Veteran's service-connected disabilities prevent the Veteran from finding and following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317. 2. The criteria for service connection for a right arm disability have not been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317. 3. The criteria for service connection for a left arm disability have not been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317. 4. The criteria for service connection for a right shoulder disability have not been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317. 5. The criteria for service connection for a left shoulder disability have not been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317. 6. The criteria for a TDIU have been met. 38 U.S.C. §§ 5102, 5103, 5103A 5107(b); 38 C.F.R. §§ 3.340, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the United States Marine Corps from October 1988 to October 1992. He served in Southwest Asia and is in receipt of the Combat Action Ribbon. In February 2019, the Veteran testified before the undersigned Veterans Law Judge at a video conference hearing. A copy of the transcript has been associated with the claims file. In a June 2019 Board decision, the Board issued a decision which denied the claims of service connection for lumbar spine disability, bilateral shoulder disabilities, and bilateral arm disabilities. The Veteran filed a timely appeal to the Court of Appeals for Veterans' Claims (Court). In an April 2020 Joint Motion for Partial Remand, the parties agreed to remand the appeal to the Board for further development. In November 2020, the Board remanded the appeal for further development. SERVICE CONNECTION 1. Service connection for a lumbar spine disability The Veteran contends that his lumbar spine disability is due to his period of service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a diagnosis of degenerative arthritis of the spine, the preponderance of the evidence weighs against finding that the Veteran's diagnosis of a lumbar spine disability began during service or is otherwise related to an in-service injury, event, or disease, to include as due to service on Southwest Asia during the Gulf War. At the outset, the Board notes that in a November 2020 Board decision, the April 2014 VA opinion was found to be inadequate for the purposes of adjudicating the claim. Therefore, while the decision will consider the Veteran's lay statements as reported at the VA examination, further analysis of the opinion itself is unnecessary. The Veteran's service treatment records are silent for complaint of or treatment for a lumbar spine disability. The Veteran has asserted that his combat service establishes service incurrence of a lumbar spine disability, to include marching through difficult terrain with heavy equipment and weaponry, as these activities and injuries are consistent with the circumstances of combat service in Vietnam. The Veteran's military personnel records indicate that the Veteran served in Operation Desert Shield in Saudi Arabia from October 1990 to March 1991 and received a Kuwait Liberation Medal. Therefore, it is established that the Veteran is a combat veteran of the Persian Gulf War. In an April 2014 VA examination, the Veteran reported that he had occasional back stiffness from the normal wear and tear during service. The Veteran stated that sometime after his release from service, he sought treatment from a doctor at home who encouraged him to exercise more, so he just dealt with his back. The Veteran stated that his back began hurting in 2010, with a flare-up that put him in bed for seven months. The Veteran reported that pain did not improve with rest. He also stated that pain disturbed his sleep and radiated into the upper extremities. In a June 2014 VA addendum opinion, the examiner determined that the Veteran's low back disability is less likely than not related to any environmental exposures. The examiner explained that the Veteran's low back disability is clearly and unmistakably an orthopedic issue of anatomic basis. In a February 2019 Board hearing, the Veteran reported that he injured his back while serving overseas due to patrolling the mountains while carrying packs, radios and weapons. The Veteran reported that his equipment was approximately 130 pounds. The Veteran also stated that careful walking on the terrain caused further strain on the neck and back. He stated that in order to carefully walk, he would have to lock his back and neck during these marches. The Veteran further reported his shoulders and arms began tingling in 1990. He stated that his pack affected his range of motion and caused damage. He also stated that a doctor informed him that his shoulders and arms were affected by his lumber spine disability. In a November 2020 VA examination, the examiner opined that it is less likely than not that the Veteran's current lumbar spine disability is due to his period of service. The examiner explained that the Veteran's enlistment examination in December 1987 and separation examination in September 1992 did not make note of any back condition. The examiner noted several VA records with the Veteran presenting with lower back pain beginning in March 2010 and including January 2014, November 2016, and November 2018 reports of treatment for lumbar spine. The examiner also noted that the Veteran reported carrying loads of up to 130 pounds while in training. The examiner noted that at the February 2019 Board hearing, the Veteran stated that he first sought treatment for his back condition in 2010 through the VA system. The examiner reported that the Veteran is currently diagnosed with degenerative arthritis of the lumbar spine, which is confirmed based on his imaging results as well as his complaints and review of his medical records. The examiner noted that the earliest documentation of a lower back condition he could find in the medical records was 2010, the date that he had listed as the first time he sought medical care for his lower back in his testimony. The examiner stated that even though the Veteran reports lower back pain prior to 2010 in addition to being in service, given that there was a more than eighteen year gap between when he reported onset of his back pain to when he initially sought treatment, that makes it difficult to link his reported in service complaints to his current diagnosis of degenerative arthritis. The examiner went on to state that, given the level of his reported back pain prior to 2010, it would have been expected of him to have sought treatment prior to this. The examiner explained that degenerative arthritis is a chronic progressive disorder in which degradation and remodeling of the bone occurs in the bones that make up the lower back. The examiner noted that this process progresses over many years; however, a twenty year time lapse between service and his first documented complaints make it difficult to link this to service. The examiner stated that the Veteran's 2014 x-ray of the lumbar spine reported mild degenerative changes. The examiner stated that he would not have expected to find these changes on an x-ray from twenty years prior if one had been done. The examiner noted that the Veteran reported that he sought treatment in the early 1990; however, the records are not available for review. For these reasons, the examiner concluded that it is less likely than not that the Veteran's lumbar spine disability is due to his period of service. In an October 2021 Appellate Brief, the Veteran, through his representative, asserted that the November 2020 VA opinion is inadequate because it is based on the eighteen year gap between the Veteran's reported onset of symptoms and when he first sought treatment. The Veteran's representative stated that the opinion is internally inconsistent because the examiner noted the Veteran's report that he sought treatment in the early 1990's, but the records were unavailable. In an October 2021 lay statement, the Veteran reiterated that he believed that his back issues began in 1991 during service and worsened during his period in the Gulf. The Veteran reported carrying up to 150 pounds of equipment through mountainous terrain. The Veteran stated that his symptoms have gotten worse through the years. The Veteran stated that he has attempted to treat his symptoms with physical therapy and Motrin, which he began taking in service. The Veteran further stated that he believed his arm symptoms are related to his back pain. He stated that his arm started hurting when he started to experience back pain. He noted symptoms of numbness, tingling, and sharp pain going from his shoulder to his fingertips. After review of the record, the Board finds that the preponderance of evidence weighs against a finding of service connection for a lumbar spine disability. As the Veteran has a diagnosed disability, service connection based on an undiagnosed illness or medically unexplained chronic multi-symptom illness is not warranted. Moreover, even taking the Veteran's lay statements regarding in-service incurrence into account, the evidence does not establish a nexus between the Veteran's service and his current diagnosis. See generally Clyburn v. West, 12 Vet. App. 296, 303 (1999) (noting that the combat presumption does not alleviate the requirement that the evidence show current disabilities attributable to the past in-service incurrence. The November 2020 VA opinion indicated that a nexus between the Veteran's current lumbar spine disability and his period of service could not be established. In coming to this conclusion, the examiner used the Veteran's medical history, lay statements and knowledge of the etiological nature of the Veteran's diagnosis. To the extent that the Veteran's representative asserts that the opinion is inadequate, the Board disagrees. The opinion is not only based on the gap between the Veteran's claimed onset and documented treatment, it is also based on the examiner's observation of the progression of the Veteran's claimed disability. The examiner noted the Veteran's imaging studies, which showed mild degenerative changes in 2014. The examiner noted that these changes would be unlikely on an x-ray from 20 years prior if one had been done. The acknowledgment of the Veteran's lay report of seeking treatment at an earlier date does not contradict the examiner's finding that the progression of the Veteran's current disability does not align with the Veteran's lay statements. The examiner acknowledges that the absence of the medical records from the 1990s makes it difficult to establish a nexus not only due to lapse of time but also due to the medical findings of the Veteran's disability progression or lack thereof. For all these reasons, the Board finds this opinion to be highly probative in nature. As such, service connection for a lumbar spine disability is not warranted. The Board has considered the Veteran's contention that his period of service resulted in his current lumbar spine disability. Although lay persons are competent to provide opinions on some medical issues, as to the specific issue in this case, determining the etiology of a lumbar spine disability falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). In this regard, while the Veteran can competently report his symptoms, any opinion regarding whether the Veteran's lumbar spine disability is due to service requires medical expertise that the Veteran has not demonstrated. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). As such, the Board assigns no probative weight to the Veteran's assertions that his current lumbar spine disability is related to his active duty service. 2. Service connection for a right arm disability 3. Service connection for a left arm disability The Veteran contends that his right and left arm disabilities are due to his period of service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current record of treatment for neurological symptoms of the arms, the preponderance of the evidence weighs against finding that the Veteran's diagnosis of right and left arm disabilities began during service or are otherwise related to an in-service injury, event, or disease, to include as due to service in Southwest Asia during the Gulf War. At the outset, the Board notes that in a November 2020 Board decision, the April 2014 VA opinion was found to be inadequate for the purposes of adjudicating the claim. Therefore, further analysis is unnecessary. As previously mentioned, the evidence establishes that the Veteran is a combat veteran of the Persian Gulf War. The Veteran's service treatment records are silent for complaint of or treatment for an arm disability. In a February 2019 Board hearing, the Veteran stated that his doctor informed him that his arm would go numb at times due to the degenerative disc of his vertebrae compressing on the nerves. The Veteran stated that the tingling in his arms started around 1990. In a June 2014 VA addendum opinion, the examiner determined that the Veteran's bilateral arm disability is less likely than not related to any environmental exposures or military service. The examiner explained that the Veteran's arm disability is clearly and unmistakably an orthopedic issue of anatomic basis. In a November 2020 VA examination, the examiner stated that it is less likely than not that the Veteran's current arm disabilities are due to his period of service. The examiner noted that, while the Veteran's December 1987 enlistment examination makes note of scars, it does not note any arm conditions. Likewise, the examiner noted that the September 1992 separation examination made no note of any arm conditions related to the current claim. The examiner reported an October 2014 physical therapy note that stated that the Veteran presented with left shoulder pain in addition to midline neck pain. The examiner stated that the Veteran had completed a course of six physical therapy sessions for this. The examiner also stated that an October 2014 physical therapy note reported bilateral shoulder pain with intermittent bilateral upper extremity pain, numbness and tingling. The examiner went on to state that the Veteran has been diagnosed with degenerative arthritis of the cervical spine during the current examination, and his reported complaints in his left and right arm are likely radicular symptoms due to his degenerative arthritis of the cervical spine. The examiner stated that this is based on his complaints as well as his 2015 MRI. The examiner explained that degenerative arthritis is a progressive disorder that typically develops over many years. The examiner noted that this is due to deterioration and remodeling of the bones in the cervical spine. These degenerative changes can irritate the nerve roots over time. The examiner reported that this is likely the etiology of the Veteran's left and right arm conditions which, as previously stated, are likely radicular symptoms. The examiner noted that the Veteran did report onset of his neck pain in conjunction with the shoulder pain while he was in service in the late 1980's and early 1990s. The examiner stated, however, there are no other sources which document onset of neck pain while in service other than the Veteran's lay statements. The examiner went on to state that, in addition, there is a more than twenty year gap between his time in service and his documented neck complaints, and this makes it difficult to connect his current complaints of the neck and arm pain with service. The examiner explained that he would have expected documented treatment prior to the twenty year gap in this case. Therefore, the examiner concluded that the Veteran's right and left arm disabilities are less likely than not due to his period of service. In an October 2021 Appellate Brief, the Veteran, through his representative, asserted that the November 2020 VA opinion is inadequate because it is based on the over twenty year gap between the Veteran's reported onset of his cervical spine symptoms, which the Veteran relates to his arm symptoms, and when he first sought treatment. The Veteran's representative stated that the opinion is internally inconsistent because the examiner noted the Veteran's report that he sought treatment in the early 1990's but the records were unavailable. For the reasons stated above, the Board reiterates that the November 2020 VA opinion has been found to be both adequate and highly probative for the purpose of adjudicating the claims. In an October 2021 lay statement, the Veteran reiterated that he believed that his back issues began in 1991 during service and worsened during his period in the Gulf. The Veteran reported carrying up to 150 pounds of equipment through mountainous terrain. The Veteran stated that his symptoms have gotten worse through the years. The Veteran stated that he has attempted to treat his symptoms with physical therapy and Motrin, which he began taking in service. The Veteran further stated that he believed his arm symptoms are related to his back pain. He stated that his arm started hurting when he started to experience back pain. He noted symptoms of numbness, tingling, and sharp pain going from his shoulder to his fingertips. After review of the record, the Board finds that the preponderance of evidence weighs against a finding of service connection for a left or right arm disability. As the Veteran has a diagnosed disability, service connection based on an undiagnosed illness or medically unexplained chronic multi-symptom illness is not warranted. Moreover, even taking the Veteran's lay statements regarding in-service incurrence into account, the evidence does not establish a nexus between the Veteran's service and his current diagnosis. See generally Clyburn v. West, 12 Vet. App. 296, 303 (1999) (noting that the combat presumption does not alleviate the requirement that the evidence show current disabilities attributable to the past in-service incurrence. The November 2020 VA opinion indicated that a nexus between the Veteran's current arm disabilities and his period of service could not be established. In coming to this conclusion, the examiner used the Veteran's medical history, lay statements and knowledge of the etiological nature of the Veteran's diagnoses. Here, the November 2020 medical opinion has indicated that the Veteran's arm disabilities are likely due to a non-service-connected cervical spine disability. Therefore, the Board finds this opinion to be highly probative in nature. The Board has considered the Veteran's contention that the Veteran's arm disabilities are related to his lumbar spine disability; however, with the writing of this decision, the Board has found that the Veteran's lumbar spine disability is not service-connected. As such, service connection for a right or left arm disability is not warranted. The Board has considered the Veteran's contention that his period of service resulted in his current arm disabilities. Although lay persons are competent to provide opinions on some medical issues, as to the specific issue in this case, determining the etiology of an arm disability falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). In this regard, while the Veteran can competently report his symptoms, any opinion regarding whether the Veteran's arm disabilities are due to service requires medical expertise that the Veteran has not demonstrated. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). As such, the Board assigns no probative weight to the Veteran's assertions that his current right and left arm disabilities are related to his active duty service. 4. Service connection for a right shoulder disability 5. Service connection for a left shoulder disability The Veteran contends that his right and left shoulder disabilities are due to his period of service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has current diagnoses of right and left shoulder strain, the preponderance of the evidence weighs against finding that the Veteran's diagnosis of right and left shoulder disabilities began during service or are otherwise related to an in-service injury, event, or disease, to include as due to service on Southwest Asia during the Gulf War. At the outset, the Board notes that in a November 2020 Board decision, the April 2014 VA opinion was found to be inadequate for the purposes of adjudicating the claim. Therefore, further analysis is unnecessary. As previously mentioned, the evidence establishes that the Veteran is a combat veteran of the Persian Gulf War. The Veteran's service treatment records are silent for complaint of or treatment for a shoulder disability. In a February 2019 Board hearing, the Veteran stated that his doctor informed him that his shoulder issues were due to the degenerative disc of his vertebrae compressing on the nerves. The Veteran stated that the tingling in his shoulders started around 1990. The Veteran reported that his pack during service caused damage and affected his range of motion. In a June 2014 VA addendum opinion, the examiner determined that the Veteran's bilateral shoulder disability is less likely than not related to any environmental exposures or military service. The examiner explained that the Veteran's shoulder disability is clearly and unmistakably an orthopedic issue of anatomic basis. In a November 2020 VA examination, the examiner stated that it is less likely than not that the Veteran's current shoulder disabilities are due to his period of service. The examiner noted that, while the Veteran's December 1987 enlistment examination makes note of scars, it does not note any shoulder conditions. Likewise, the examiner noted that the September 1992 separation examination made no note of any arm conditions related to the current claim. The examiner noted a March 2010 rehab medicine note that stated that the Veteran was seen for right shoulder pain and CTS. The examiner reported an October 2014 physical therapy note that stated that the Veteran presented with left shoulder pain. The examiner stated that the Veteran had completed a course of six physical therapy sessions for this. The examiner also noted an October 2014 physical therapy note that reported bilateral shoulder pain with intermittent bilateral upper extremity pain, numbness and tingling. The examiner stated that a January 2014 primary care note reported right shoulder pain as well as back pain for several years, with what was reported to be a flare in 2010. The examiner stated that the Veteran was diagnosed with bilateral shoulder strain during the current examination based on his reported history as well as current complaints. The examiner noted that the Veteran had been seen multiple times in the VA system for shoulder pain, starting in 2010. The examiner noted that the Veteran had reported onset of bilateral shoulder pain back in 1991, and this was consistent with his prior testimony; however, there are no medical records documenting treatment until 2010. The examiner stated that, given that there is a nearly twenty year gap between his service and when he initially sought treatment for his shoulder pain, it makes it difficult to connect this to service. The examiner stated that he would have expected to have found documentation of treatment sooner. The examiner further explained that shoulder strain is a type of overuse injury which is a result of repetitive micro trauma to the shoulders. The examiner noted that this can be from repetitive tasks, repetitively lifting and carrying heavier items, and everyday use due to his occupation. The examiner stated that the twenty year gap without any documentation of bilateral shoulder condition or treatment makes it difficult to connect his current shoulder disabilities to his period of service. Therefore, the examiner concluded that it is less likely than not that the Veteran's bilateral shoulder disability is due to his period of service. In an October 2021 Appellate Brief, the Veteran, through his representative, asserted that the November 2020 VA opinion is inadequate because it is based on the eighteen year gap between the Veteran's reported onset of his lumbar spine symptoms, which the Veteran relates to his shoulder disabilities, and when he first sought treatment. The Veteran's representative stated that the opinion is internally inconsistent because the examiner noted the Veteran's report that he sought treatment in the early 1990's but the records were unavailable. For the reasons stated above, the Board reiterates that the November 2020 VA opinion has been found to be both adequate and highly probative for the purpose of adjudicating the claims. In an October 2021 lay statement, the Veteran reiterated that he believed that his back issues began in 1991 during service and worsened during his period in the Gulf. The Veteran reported carrying up to 150 pounds of equipment through mountainous terrain. The Veteran stated that his symptoms have gotten worse through the years. The Veteran stated that he has attempted to treat his symptoms with physical therapy and Motrin, which he began taking in service. The Veteran further stated that he believed his arm symptoms are related to his back pain. He stated that his armed started hurting when he started to experience back pain. He noted symptoms of numbness, tingling, and sharp pain going from his shoulder to his fingertips. After review of the record, the Board finds that the preponderance of evidence weighs against a finding of service connection for a right or left shoulder disability. As the Veteran has diagnosed disabilities, service connection based on an undiagnosed illness or medically unexplained chronic multi-symptom illness is not warranted. Moreover, even taking the Veteran's lay statements regarding in-service incurrence into account, the evidence does not establish a nexus between the Veteran's service and his current diagnosis. See generally Clyburn v. West, 12 Vet. App. 296, 303 (1999) (noting that the combat presumption does not alleviate the requirement that the evidence show current disabilities attributable to the past in-service incurrence). The November 2020 VA opinion indicated that a nexus between the Veteran's current shoulder disabilities and his period of service could not be established. In coming to this conclusion, the examiner used the Veteran's medical history, lay statements and knowledge of the etiological nature of the Veteran's diagnoses. Therefore, the Board finds this opinion to be highly probative in nature. The Board has considered that Veteran's contention that the Veteran's shoulder disabilities are related to his lumbar spine disability; however, with the writing of this decision, the Board has found that the Veteran's lumbar spine disability is not service-connected. As such, service connection for a right or left shoulder disability is not warranted. The Board has considered the Veteran's contention that his period of service resulted in his current shoulder disabilities. Although lay persons are competent to provide opinions on some medical issues, as to the specific issue in this case, determining the etiology of a shoulder disability falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). In this regard, while the Veteran can competently report his symptoms, any opinion regarding whether the Veteran's shoulder disabilities are due to service requires medical expertise that the Veteran has not demonstrated. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). As such, the Board assigns no probative weight to the Veteran's assertions that his current right and left shoulder disabilities are related to his active duty service. 6. TDIU The Veteran contends that his service-connected disabilities render him unable to obtain and maintain substantially gainful employment. The Board finds that the evidence of record is sufficient to show that the Veteran's service-connected disabilities, individually or in aggregate, prevent the Veteran from finding and following substantially gainful employment. 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 disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate "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. §§ 3.340(a)(1), 4.15. A threshold requirement for eligibility for a TDIU under 38 C.F.R. § 4.16(a) is that if there is only one such disability, it must be rated at 60 percent or more; 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. For the Veteran to prevail on a claim for a TDIU, the sole fact that the Veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). In determining whether the Veteran is entitled to a TDIU, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). Substantially gainful employment means, essentially, that the work provides income above the poverty level established by the United States Department of Commerce, without benefit of protected family employment or a sheltered workshop. 38 C.F.R. § 4.16(a). Throughout the appeal period, the Veteran has had compensable ratings for the following disabilities: posttraumatic stress disorder (PTSD) at 70 percent rating and tinnitus at 10 percent rating. The Veteran's combined rating is 70 percent. The Veteran also has noncompensable ratings for irritable bowel syndrome and atopic dermatitis. Therefore, the Veteran has met the schedular criteria for a TDIU. Turning to the evidence, in an April 2014 VA PTSD examination, the Veteran stated that he has primarily worked in construction, particularly vinyl siding and roofing. The Veteran reported that the longest has he has stayed with any company has been two to three years, which he reported was related to his problems getting along with his co-workers and supervisors. The Veteran stated that he had problems with authority when he did not believe his supervisors were qualified. The Veteran reported being irritable and easily angered, and he has walked off jobs multiple times (including walking off his brother's construction company four times). The Veteran also reported that he has had multiple verbal altercations and, after being charged with assault and battery, he would leave jobs when angry to avoid becoming involved in physical altercations. The Veteran reported that in late spring of 2012, he stopped working when his brother closed his construction company. The Veteran noted that he currently has a job offer through the Department of Interior doing maintenance on historical homes and he is waiting for the background check to be completed. The Veteran denied having any problems with his job performance or that his drinking ever interfered with work. The examiner reported symptoms of depression, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The examiner summarized the Veteran's social and occupational impairment as moderate. The examiner remarked that although the Veteran denied that alcohol influenced his work performance, he also demonstrated limited insight into the impact of alcohol on his performance in the Marines. The examiner reported that it is likely that alcohol played a role in the Veteran's work problems after his discharge. The examiner went on to state that although it is impossible to assess the level of his work impairment because he has not worked for two years, it is likely that the Veteran would be moderately impaired based on his current daily functioning. In a June 2014 VA hearing examination, the examiner noted functional impact of the Veteran's tinnitus in that the Veteran stated that he works in construction and tinnitus sometimes makes it difficult to hear when another construction worker is asking him for a tool or giving him instructions. The Board notes that it is unclear if this example is in reference to a current construction position or a reference to previous employment as a construction worker. In a July 2014 application for a TDIU, the Veteran reported that his PTSD prevented him from securing or following any substantially gainful occupation. The Veteran noted that his disability began to affect full time employment in 1993. The Veteran stated that he became too disabled to work in May 2012. The Veteran also stated that May 2012 was the last time he worked full time. The Veteran noted that the most he had ever earned was $39,000.00 in a year in 1995 working as an extruder operator. The Veteran reported that his previous employment included working as a mechanist for forty hours a week from February 2013 to May 2013. During this period, the Veteran earned $1,840.00 per month. The Veteran stated that he lost three weeks of time due to illness. The Veteran also reported that he previously worked as a laborer for forty hours a week from 2001 to April 2011. The Veteran stated that he made $2560.00 per month. The Veteran also stated that he lost five years of time due to illness. The Veteran stated that he left his last job due to his disability and has not tried to obtain employment since he became too disabled to work. The Veteran remarked that he left his last job due to supervisor complaints about his work while he was being trained and about his breaks. The Veteran stated that he was threatened with being fired after informing Human Resources of these issues. The Veteran reported that his highest level of education is completion of four years of high school. The Veteran noted that he had training in facilities management. The Veteran stated that this training began in July 2012 and ended in October 2012. In a December 2014 VA medical opinion, the examiner noted that in the April 2014 VA mental health examination, the examiner noted that the Veteran currently has a job offer through the Department of Interior doing maintenance on historical homes and he is waiting for the background check to be completed. The examiner also noted that the Veteran denied having any problems with his job performance or that his drinking ever interfered with work. The examiner stated that the report indicated a history of difficulty getting along with coworkers and that he has walked off jobs in the past because of disagreements with coworkers. The examiner noted that based on the examiner in the April 2014 VA evaluation's assessment, occupational impairment was summarized as occupational and social impairment with reduced reliability and productivity. The examiner went on to note that in the June 2014 audiological examination, the Veteran reported working in construction. The examiner also noted that there was no record of mental health treatment since the April 2014 examination. The examiner stated that, based on review of the record, it did not appear that the Veteran's PTSD is of sufficient severity to prevent him from finding and maintaining gainful employment. The examiner stated that in fact, the evidence suggests he is currently employed in the construction field. In a January 2015 request for employment information, the Veteran's last employer stated that the Veteran was employed from February 2013 to June 2013. The employer noted that the Veteran's type of work was as machine operator. The employer stated that the Veteran resigned from the job but did not report a reason for resignation. The employer also did not confirm any time lost during employment that was due to the Veteran's disability. In a letter received in October 2015 from the Veteran's VA primary mental health care provider, the examiner stated that the Veteran had been receiving outpatient mental health treatment since February 2015. The examiner reported that the Veteran continues to have difficulty in daily functioning due to multiple PTSD symptoms. The examiner went on to state that the Veteran's ability to obtain and engage in gainful or meaningful employment at this time is questionable. At a February 2019 Board hearing, the Veteran reported that he last worked from February 2019 to October 2019 as a dishwasher in a country club. The Veteran stated that he eventually left due to issues with other coworkers. The Veteran noted that this job did not make accommodations for him. Prior to that, the Veteran reported working part time from the winter of 2018 to the end of 2018. The Veteran asserted that he has had short periods of work instead of long, extended periods due to his PTSD. In a letter received in March 2019 from the Veteran's VA primary mental health care provider, the examiner stated that the Veteran had been receiving outpatient mental health treatment since February 2015. The examiner reported that the Veteran continues to have difficulty in daily functioning due to multiple PTSD symptoms. The examiner noted that his ability to obtain, engage and maintain ongoing meaningful employment is unlikely due to symptoms of irritability, poor frustration tolerance, hypervigilance and increased startle response and high impulsivity in confined spaces. In a June 2019 VA examination, the Veteran stated that he currently works part-time (21-35 hours) at a golf club as a dishwasher. He noted he has worked on and off at this job for 4 years and has been let go twice for "problems with other employees." He denied having problems with clients, noting that he does not have much interaction with them. He denied having problems showing up for work but said he leaves early for medical appointments on occasion. He denied problems getting his work done. He stated that he is friends with the head chef and has been hired back. He also worked a second job but was let go due to job performance concerns by the wife of the food and beverage director. The examiner noted that a review of the record indicates that the Veteran had about 6 to 9 months of unemployment in 2017. The examiner endorsed symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened affect, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The examiner summarized the Veteran's level of social and occupational impairment as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. In an April 2020 VA PTSD medical opinion, the Veteran reported that his highest level of education is a technical school. The Veteran also reported recently working in the kitchen in a private golf course. The Veteran noted that he is currently unemployed due to Covid 19. The Veteran stated that his work is seasonal, from April through October. After the season ends, the Veteran is laid off and collects unemployment. The Veteran noted that he has a long history of unemployment. He stated that he had been occasionally working in a seasonal capacity with his brother doing construction but stopped because they had a falling out. The Veteran stated that he has been working as a cook for five summers. He stated that he never wants to leave his current job because he feels loyal to his boss. The Veteran reported that his boss gives him leeway to deal with his issues, and other jobs did not afford him this flexibility. The examiner endorsed symptoms of depressed mood, anxiety, suspiciousness, flattened affect, disturbances in motivation and mood, neglect of personal appearance and hygiene and difficulty in adapting to stressful circumstances, including work or a work like setting. The examiner summarized the Veteran's occupational and social impairment due to his mental health diagnoses as occupational and social impairment with reduced reliability and productivity. In an April 2020 VA medical opinion, the examiner from the April 2020 VA PTSD medical opinion opined that the Veteran struggles with some, but not all deficiencies in areas of work, school, family relations judgement, thinking, and mood, and social and occupational impairment. The examiner explained that the Veteran has been working a seasonal job for the past five summers, as a cook at a golf course nearby (Oak Hill). The examiner stated that this is a job the Veteran enjoys and to which he stated, "I do not want to give this job up." The examiner reported that the Veteran notes that his boss will give him "leeway" on the job and accommodates him with regard to his PTSD symptoms. The examiner also reported that the Veteran denies that he has any issues showing up for his job. The examiner noted that when the season is over, the Veteran applies for unemployment. The examiner noted that with regard to his daily functioning, the Veteran cares for his young son. The examiner stated that the Veteran reported that he has been to court six times regarding contempt for visitation with his son by his ex-wife. The examiner also noted that the Veteran reports helping his mother around the house. The examiner stated that the Veteran reported that he independently performs his Activities of Daily Living (ADL's), noting that he drives, shops, and will do activities with his son. The examiner stated that the Veteran has a long history of conflictual relationships dating back to the military including two failed marriages. The examiner opined that based on a review of the record, the Veteran is capable of the following: understand and follow both simple and complex direction, provide attention, focus, and management of a complex task (which is supported by the Veteran's ability to follow through on his paperwork (unemployment)), identify hazards in the workplace and manage routine change, and drive and navigate his destinations. The examiner stated that the Veteran would have impairments with getting along with others and receiving constructive feedback by supervisors and peers. However, the examiner noted the Veteran gets along with his current boss quite well. The examiner stated that he would be better served working away from the general public and in a more independent role. The examiner observed that the April 2014 VA examination assessed the Veteran's PTSD as moderate. The examiner noted that the record indicates that the Veteran has been offered jobs, specifically restoring antique structures for the Department of the Interior and was waiting for his background check. The examiner noted that he ultimately did not take this job due to ankle problems, not mental health problems. The examiner noted the June 2019 VA examination which found the Veteran had deficiencies in most areas. The examiner further noted the letters submitted by the Veteran's primary mental health physician. The examiner noted that the Veteran has never made a suicide attempt and has never been hospitalized which would indicate more severe symptomatology. The examiner reported that the Veteran currently refuses psychopharmacological interventions to manage and improve his symptoms. The examiner stated that, in the absence of medication management, the lack of suicidal ideation, homicidal ideation, and no inpatient admissions to deal with negative behaviors, the Veteran's symptoms appear no more than of moderate severity. The examiner stated that his personality traits interfere to a moderate degree with his ability to get along with others. However, the examiner noted that the Veteran has been able to keep his current job for the past five years and has not lost his job due to the noted impairments. In an October 2021 application for a TDIU, the Veteran reported updated employment information. The Veteran stated that from September 2015 to October 2019, the Veteran reported working at a country club for thirty to thirty-four hours a week doing food prep and washing dishes. The Veteran remarked that during his employment at the country club, he did not lose any time at work due to his service-connected conditions because his boss was a friend. The Veteran explained that his boss allowed him to have a flexible schedule so that he could call out or adjust his hours as needed for his conditions. The Veteran stated that because his boss allowed him a flexible schedule, he did his best to show up to work or inform his boss of changes in advance. The Veteran went on to report for the month of June 2021, he worked as a dishwasher and assisted with care of residents at an assisted living facility. The Veteran reported that he worked forty hours per week. In an October 2021 lay statement, the Veteran stated that his PTSD had caused disagreements with employers and coworkers, resulting in outbursts at work. The Veteran also stated that his IBS caused him to go to the bathroom approximately fifteen times a day, resulting in frequent interruptions in completing tasks. The Veteran reiterated that his seasonal work at the golf club from September 2015 to October 2019 worked because of special accommodations from his boss, who was also his friend. The Veteran stated that his productivity was interrupted by frequent bathroom breaks. The Veteran also asserted that his tinnitus caused him to need directions repeated often. The Veteran further reported that his PTSD symptoms, such as irritability and sleep impairment, caused outbursts and disagreements with coworkers and supervisors. The Veteran stated that his friend would step in to deescalate such situations. The Veteran stated that he often was able to work in more isolated areas to avoid the likelihood of further disagreements. The Veteran reiterated that his boss during this period understood his conditions affected him, and therefore, his performance was not negatively affected. The Veteran stated, however, that he was asked not to return for spring of 2020. The Veteran asserted that his symptoms have only gotten worse. The Veteran stated that he did not believe it was feasible for him to maintain employment, noting that he recently tried to work in July 2021 but was unable to keep the job. After review of the record, the Board finds it is at least equipoise that the Veteran is unable to find and follow substantially gainful employment. The evidence indicates that the Veteran has a history of temporary employment. The evidence also suggests that the Veteran's longest employment was part time and seasonal at a golf club in which his boss and friend provided a sheltered workshop. The Veteran's primary mental health care physician has reported that the Veteran is unlikely to maintain employment due to his service-connected PTSD. This is also consistent with the June 2019 VA examination findings, which endorsed symptoms of difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting, and the April 2020 VA examination, which also found that the Veteran had difficulty in adapting to stressful circumstances, including work or a worklike setting. The Board notes that the December 2014 VA opinion is partly based on the functional impact statement in the June 2014 hearing loss and tinnitus statement. The examiner's conclusion that the Veteran was working at that time is inconsistent with the preponderance of evidence of the Veteran's work history of record. It appears rather, that the functional impact statement referenced impact on the Veteran's previous employment as a construction worker. To the extent that the April 2014 and April 2020 VA medical opinions found that the Veteran's summary of occupational and social impairment was not so severe such that he was able to find and follow employment, the Board finds the opinion credible. However, the conclusions of the June 2019 VA medical opinion and the Veteran's primary mental health care physician are also credible and weigh in favor of a finding of unemployability. Therefore, resolving reasonable doubt in the Veteran's favor, the Board finds that a TDIU is warranted. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Ford 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.