Citation Nr: 21077510 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 17-28 880A DATE: December 30, 2021 ORDER A total disability rating based on individual unemployability (TDIU) is granted, subject to the laws and regulations governing the award of monetary benefits. FINDING OF FACT The Veteran is unable to obtain or maintain substantially gainful employment as a result of his service connected disabilities. CONCLUSION OF LAW The criteria for TDIU have been met. 38 U.S.C. § 501; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the Marines from October 1988 to October 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 4, 2013 rating decision. The Veteran seeks a TDIU and contends that as a result of his service-connected disabilities he has been unable to work since 2000, when he stopped working on the family farm. The Veteran indicates that he has not held a full-time job in a nonprotected environment since returning from military service. A TDIU may be assigned, where the schedular rating is less than total, where 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. The Veteran has the following disabilities that are service connected: chronic arthralgia/myalgia as due to undiagnosed illness (20 percent from May 4, 1995); tinnitus (noncompensable from May 4, 1995; 10 percent from September 9, 2003); undifferentiated somatoform disorder (50 percent from March 15, 2012); irritable bowel syndrome (10 percent from March 8, 2005; 30 percent from March 31, 2015). Based on the forgoing, the Veteran has at least one disability rated at 40 and sufficient additional disabilities to bring the combined rating to 70 percent. Accordingly, the Board may consider the claim for a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). "[U]nable to secure and follow substantially gainful employment" in 38 C.F.R. § 4.16 (a) comprises both economic and noneconomic components, which required consideration of a wide range of factors, and one is a veteran's ability to perform sedentary activities. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019) (also holding that Social Security Administration (SSA) regulations defining "sedentary" are not binding on VA). Withers v. Wilkie, 30 Vet. App. 139, 148 (2018) held that while 38 C.F.R. § 4.16 "does not make the concept of sedentary work an explicit TDIU factor" if TDIU is denied because "a veteran is capable of sedentary work" this must be explained in the context of that case." Thus, while not a legally governing consideration, the ability to perform sedentary work can be a relevant factor and a finding that sedentary employment is possible can be determinative when explained in relation to past education and occupational history. See id. However, neither VA nor the Court has explicitly defined the term "sedentary employment." Withers, 30 Vet. App. at 148. 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). Substantially gainful employment" is that employment that "is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment will not be considered substantially gainful employment." 38 C.F.R. § 4.16 (a). For the reasons that follow, the Board finds that a TDIU is warranted. The Veteran was discharged from service as an E-4 where his military occupational specialty was Amphibious Assault Vehicle Crewman. Since discharge, the Veteran has not held fulltime employment. See June 2020 VA Form 21-4138 and Form 21-8940. At his Board hearing, the Veteran testified that he last worked full time in 2000 when he was working on the family farm. He indicated that he was having trouble with timeliness, physical requirements, and concentration. The farm was owned by his father, which allowed the Veteran to work in a protected environment. The Veteran testified that he did attempt to obtain part time employment, specifically through groups for disabled veterans, but was unable to obtain employment and often did not receive replies from the jobs that he applied for. The Veteran asserts that his ability to secure and follow a substantially gainful occupation was impacted by the physical effects of his chronic arthralgia/myalgia (hereinafter myalgia) which affect his lumbar spine and cervical spine. See June 2020 VA Form 21-8940. An August 2020 VA examination indicated that the Veteran's myalgia would make walking, standing, and heavy lifting for prolonged periods of time difficult. The examiner noted that there was no documented evidence to support that he would not benefit from or be able to engage in a sedentary position with opportunities to stand and stretch. A July 2020 VA examination diagnosed the Veteran with somatic symptom disorder, with predominant pain, moderate; unspecified depressive disorder. The examiner opined these conditions resulted in occupational and social impairment with reduced reliability and productivity. The Veteran reported that he had experienced memory issues since returning home from the Gulf War. The examiner noted that the Veteran experiences symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, such as forgetting names, directions, or recent events, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships. The examiner opined that the Veteran's condition would impact his ability to work. Specifically, the Veteran endorsed difficulty concentrating and memory issues, which could impact work functioning by interfering with his ability to focus on and successfully complete tasks. It could also potentially interfere with his ability to follow directions. The Veteran also endorsed a lack of motivation, depressed mood, and chronic fatigue, noting that he often sleeps throughout the day. The examiner indicated that these symptoms could interfere with his ability to successfully complete tasks and to arrive to work promptly and/or consistently. Finally, the Veteran endorsed feelings of anxiety about his medical conditions and his health and reported that he avoids social gatherings at times due to irritable bowel syndrome symptoms. These symptoms, the examiner indicated, could also contribute to his avoiding work. A March 2020 private treatment note indicates that the Veteran's recent and remote memory appear appropriate for his age. A life insurance disability form indicates that the Veteran is unable to perform any job duties due to his degenerative disc disease with chronic pain syndrome and PTSD. The Veteran is currently in receipt of social security disability benefits due to a back disorder and affective disorder. Social Security Administration (SSA) records indicate these disabilities began in May 2004. In his application for benefits, the Veteran reported needing complete silence to focus on tasks effectively. At the Veteran's SSA disability examination, the Veteran was observed as following simple and complex directions and commands without difficulty and his memory of recent and remote medical events was preserved. The Veteran was observed to have limited range of motion (ROM) with lumbar extension and obvious discomfort elicited during ROM testing of the spine and hips. During an SSA psychological examination, the Veteran struggled with recalling facts about the Marines such as the Marine Corps birthday and where he went for boot camp. However, the examining psychologist noted that the Veteran appeared to have the intellectual ability necessary for him to understand, retain, and carry out simple to somewhat more complicated instructions and tasks. The physician opined that he believed the Veteran could carry out a work assignment adequately across a routine work schedule without particular difficulties. Lay evidence from the Veteran, his mother, and his son indicate that the Veteran is largely housebound. He reports spending most of his time in a recliner throughout the day and needing assistance with household tasks due to his physical disabilities and associated pain. Currently, the Veteran lives with his mother and has for approximately six years, which he reports occurred after he was unable to care for his home and live independently. He asserted that he requires assistance from his family with daily tasks. The Veteran's son testified that the Veteran's pain has resulted in him sleeping in a recliner for more than 18 years to avoid laying completely flat. The Veteran's family indicates that he was previously a social person however, with the decline of his health has become increasingly isolated and does not go outside for dinner, socializing, or errands. Given the forgoing medical opinions, medical evidence, and lay statements of record, the Board finds that the evidence is in relative equipoise as to whether Veteran's service-connected disabilities preclude him from the ability to secure and follow a substantially gainful occupation consistent with his education, skills, training, and work history. Accordingly, a TDIU is warranted. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jennifer M. Narvaez, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.