Citation Nr: 21024616 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 16-26 105 DATE: April 23, 2021 ORDER Entitlement to 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, the evidence indicates that his combined service-connected disability picture prevents him from obtaining and maintaining substantially gainful employment consistent with his educational and occupational background. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1998 to March 1999. This current matter comes before the Board of Veterans’ Appeal (Board) on appeal from a February 2015 U.S. Department of Veterans Affairs (VA) Regional Office rating decision. Although the Veteran initially requested a hearing before a Veterans Law Judge, the Veteran subsequently requested a withdrawal of such hearing request. His request was honored. TDIU The Veteran contends that his service-connected disabilities prevent him from securing or following any substantially gainful occupation. Specifically, on his December 2014 claim for a TDIU, he states that he was determined unfit to continue working as a police officer due to constant pain and depression. A total disability rating for compensation purposes may be assigned where the schedular rating is less than total and where it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 4.16, 4.19 (2018); Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran has several service-connected disabilities, including fibromyalgia (40%); mechanical low back pain (20%); radiculopathy of the left lower extremity (20%); left patellofemoral syndrome (10%); tinnitus (10%); right patellofemoral syndrome (0%); and Lyme disease (0%). The Veteran’s combined disability rating is currently 70 percent. Thus, the threshold requirements for a TDIU are met. [The Board also notes that the Veteran was previously assigned a 30 percent rating for an adjustment disorder with mixed anxiety and depression. Service connection for that disability was severed on February 1, 2017.] The record indicates that the Veteran has not worked since at least 2014. The record also indicates that his service-connected disabilities prevent him from securing or maintaining any employment. Specifically, on his Application For Increased Compensation Based On Unemployability Form (VA Form 21-8940), he noted that he was unable to work due to fibromyalgia and an anxiety disorder and that he was found to be unfit to continue working as a police officer due to constant pain and depression. He also stated that he was under doctor’s care for his conditions. He indicated that he last worked in September 2014, at which time he became disabled. He noted that he worked as a police officer for a sheriff’s department from June 2001 to December 2012. He also worked for another division of the same police department from January 2012 to September 2014. He completed four years of high school, with no college education completed. In a letter from the head of the police department where the Veteran last worked, dated in September 2014, it was stated that the Veteran was a second shift patrol officer and was judged medically unfit for duty by his physician. The department head indicated that the Veteran’s unfit medical condition stems from his service-connected disabilities which had rendered him unable to use his hands due to numbness and tingling. It was noted that the Veteran’s condition made him unable to perform the required duties, including being able to physically fight with combative suspects or draw and use lethal and less lethal weapons. The department head acknowledged the Veteran’s resignation and indicated that the Veteran was an asset to the department. On a Request For Employment Information Form, obtained in January 2015, the Veteran’s former employer, the police department, indicated that the Veteran was employed from January 2013 to September 2014, but became too disabled to work in September 2014. It was noted that the Veteran’s last day of employment was September 5, 2014. The former employer also noted that, prior to the Veteran’s resignation, concessions were made for him to be reassigned from being a patrol officer to being a school officer. In January 2015, a medical opinion letter was obtained from Dr. C.G.M., who indicated that he was the Veteran’s primary care physician who had been treating the Veteran since July 2012. He noted that the Veteran was diagnosed with fibromyalgia and depression, and that he had seen the Veteran decline significantly, over the past several years, to the point where the Veteran is unable to maintain active employment due to his medical issues. Dr. C.G.M. stated that the Veteran truly desires to work but is unable to so, despite changes in his medications. He noted that the Veteran’s inability to work negatively affects the Veteran’s overall demeanor. The physician noted that the Veteran also suffers from chronic insomnia due to fibromyalgia and depression and that the Veteran was previously very active in the community but was no longer able to engage in those activities due to his disabilities. On an August 2014 VA examination report for fibromyalgia, the examiner noted findings, signs, and symptoms attributable to this disability as widespread musculoskeletal pain, stiffness, sleep disturbances, depression, anxiety, and irritable bowel syndrome, occurring on a constant or nearly constant basis. The examiner indicated that fibromyalgia impacts the Veteran’s ability to work, but she did not elaborate further. At a December 2014 VA examination, the examiner noted that the Veteran’s back condition impacts his ability to work. Specifically, he stated that the Veteran is unable to stand for more than five minutes or walk for more than 20 feet without having significant pain, fatigability, or the need to sit and rest. The examiner noted that the Veteran is unable to lift more than 20 lbs. without significant low back pain and fatigability. He stated that the Veteran could perform sedentary duties. On a December 2014 VA examination report for fibromyalgia, the examiner noted that the Veteran cannot stand for more than five minutes at a time without needing to find a place to sit and rest. He also stated that the Veteran cannot walk for more than 20 feet without stopping to rest. The examiner concluded that the Veteran could perform sedentary duties. The Board has carefully considered statements from examiners, the Veteran, and his primary care physician regarding the effects of his service-connected disabilities on his employability. The positive and negative evidence regarding his TDIU claim is in relative equipoise. The ultimate TDIU determination is the responsibility of a VA adjudicator and not a medical examiner. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Here, with the resolution of reasonable doubt in the Veteran’s favor, the Board finds that his service-connected disabilities prevent him from securing or following a substantially gainful occupation given his work history, his education, and the collective impact his service-connected fibromyalgia, mechanical low back pain, radiculopathy of the left lower extremity, left patellofemoral syndrome, tinnitus, right patellofemoral syndrome, and Lyme disease would have on obtaining and maintaining physically demanding employment, including in his past occupation as a police officer. The Board finds that the constant pain from these disabilities would significantly limit his ability to perform any job adequately. While the December 2014 VA examiner noted that the Veteran could perform sedentary work, this does not seem to be the opinion of the Veteran’s primary care physician, who had been treating the Veteran for several years, and is presumed to be more familiar with the Veteran’s disabilities and limitations from those disabilities. As such, the totality of the evidence supports a finding that the Veteran’s service-connected disabilities render him unable to obtain and maintain substantially gainful employment when his educational and work background are taken into consideration. Accordingly, the claim for a TDIU is granted. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Trowers, 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.