Citation Nr: 22014828 Decision Date: 03/15/22 Archive Date: 03/15/22 DOCKET NO. 15-06 824A DATE: March 15, 2022 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU), is granted. FINDING OF FACT Schedular requirements for TDIU have been met, and the Veteran's service-connected ulcerative colitis, has precluded him from securing or maintaining substantially gainful employment for the entire appellate period. CONCLUSION OF LAW For the entire period on appeal, the criteria for a TDIU, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1971 to June 1973. In October 2018, the Veteran presented testimony during a hearing in Washington, D.C. before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims file. In November 2018 and again in October 2020 the Board remanded this matter for additional development. All requested actions have been completed and the claim is once again before the Board. TDIU The Veteran contends that his service-connected intestinal conditions including Crohn's disease symptoms, renders him unable to obtain or maintain substantially gainful employment. Specifically, that his symptoms cause such frequent bowel movements requiring up to 14 bathroom visits during the workday that the Veteran could not maintain employment. See December 2015 VA Form 21-8940; July 2016 Veteran Correspondence; October 2018 Board Hearing; November 2018 Representative Correspondence; July 2020 Representative Correspondence; December 2020 Veteran Correspondence; November 2021 Representative Correspondence. Applicable Laws and Regulations Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). 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 age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person 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, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). However, a total rating may nonetheless be granted on an extra-schedular basis in exceptional cases (and pursuant to specifically prescribed procedures) when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. See 38 C.F.R. § 4.16(b). Analysis In the present case the Veteran in service-connected for a surgical scar associated with his Crohn's disease he in receipt of a zero percent rating effective from October 8, 2008. The Veteran is also service-connected for Crohn's disease (previously evaluated as ulcerative colitis) rated at 60 percent from October 8, 2008. See February 2021 Rating Decision. As such, his rating was 60 percent beginning October 8, 2008, when he first met the schedular requirements for TDIU. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In May 2009, the Social Security Administration (SSA) found the Veteran disabled and unemployable starting in May 2007, as the result of an ulcerative colitis condition. See May 2009 SSA Disability Determination Transmittal. It was noted in the Veteran's SSA disability determination that he was capable of sedentary work as defined by the SSA, however, due to the Veteran's ulcerative colitis requiring frequent bathroom breaks (up to 10 times per day) for up to 10-15 mins at a time, the Veteran could not sustain substantial gainful employment. See May 2009 SSA Disability Determination at 5-8. In March 2009, the Veteran presented for a VA intestinal examination, where the examiner noted the Veteran's colitis caused negative effects on the Veteran's ability to perform activities of daily living. Specifically, mild limitations in chores, shopping, recreation, and traveling; along with moderate limitations in exercise and sports. However, the examiner did not note any limitations in the Veteran's occupation except that the Veteran was currently unemployed. See March 2009 VA Intestinal Examination. In December 2009, the Veteran presented to a VA liver, gall bladder, and pancreas examination, where the examiner opined, the Veteran can perform his activities of daily living and his symptoms do not prevent the Veteran from being employed. See December 2009 VA Liver, Gall Bladder, and Pancreas Examination. In March 2011 the Veteran presented to a VA examination where the examiner opined, that "while having frequent bowel movements is certainly an inconvenience, the patient is able to maintain gainful employment and would benefit from a job close proximity to a restroom and bathroom breaks." See March 2011 VA Examination. In March 2015, the Veteran presented to a VA intestinal conditions examination, where the examiner opined, that frequent bowl movements are an inconvenience, the Veteran is capable of maintaining employment with reasonable accommodations. The examiner further opined that the Veteran would benefit from working in close proximity to a restroom with an allowance for frequent restroom breaks. See March 2015 VA Intestinal Examination. In February 2016, the Veteran presented to a VA intestinal conditions examination, where the examiner noted, the Veteran's intestinal disability did not impact his ability to work. See February 2016 VA Intestinal Examination. In December 2020, the Veteran presented to a VA examination, where the examiner opined it is at least as likely as not that the Veteran is precluded from substantially gainful employment on account of his service-connected Crohn's disease. See December 2020 VA Examination. However, the examiner further opined the Veteran was capable of sedentary work. The Board finds this examination inadequate for rating purposes as it is contradictory. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) ("[O]nce the Secretary undertakes the effort to provide an examination . . . he must provide an adequate one."). In late December 2020, the Veteran presented to a VA intestinal conditions examination, where the examiner noted the Veteran's Crohn's disease has a functional impact on his ability to work. The examiner specifically noted, the Veteran's productivity and efficiency are impaired due to frequent bowl movements and bathroom breaks during the workday. See December 2020 Intestinal Conditions Examination. In February 2021, the December 2020 VA examiner issued an addendum opinion to correct the contradictory statements offered in the previous opinion. See February 2021 VA Addendum Opinion. The examiner opined that the Veteran's Crohn's disease "should not prevent him from being gainfully employed." Id. The examiner further opined that the Veteran is capable of sedentary work or "better still work from home." Id. The Veteran has reported that he has four or more years of college education. See July 2008 SSA Records at 43. The Veteran last worked in January 2004 as an accountant for a defense contractor. See July 2008 SSA Records at 31. At the Veteran's hearing he testified to last working in 2010 or 2011 for a staffing company. See October 2018 Board Hearing. The Veteran further testified that his unemployment stemmed from his service-connected Crohn's disease that caused him to take to frequent bathroom breaks and resulted in his inability to complete work on time. Id. The Veteran further testified to having to wear an "appliance" due to attacks related to his service-connected Crohn's disease. Id. In sum, the longitudinal medical evidence of record consistently points to the Veteran's service connected Crohn's disease precluded him from securing and following substantially gainful employment since at least October 2008. The Board takes specific notice of the consistent examinations notations of the frequency of bowl movements (10 or more per day) and the requirement that the Veteran work near a restroom or work from home. In conjunction with this and the severity of the Veteran's condition as highlighted by his current weight loss from 210 lbs. to 159 lbs. support the Veteran's contention, he is precluded from securing and following substantially gainful employment since at least October 2008. See December 2020 VA Examination. After considering the evidence, the Board finds that it is unlikely the Veteran would be able to perform the physical and mental acts necessary to secure and maintain any employment due to the symptoms and functional impairment he experiences as a result of his Crohn's disease alone. Indeed, it appears the Veteran would require frequent, extended, and unscheduled breaks to use the bathroom and recover from his frequent bouts of diarrhea and resulting weakness. It also appears likely that the Veteran would miss numerous days of work when he experienced the severe exacerbations of abdominal pain and sought treatment at the emergency room. In this context, the Board finds probative that, during the October 2018 Board hearing, the Veteran testified that his previous employer terminated his employment due to his frequent bathroom breaks, even after he would bring work home to make up for the time lost at the office. See October 2018 Board Hearing. Thus, as the Veteran has credibly reported and the weight of the probative medical evidence has noted the occupational impairment resulting from his service-connected Crohn's disease, the Board finds that an award of a TDIU due to his Crohn's disease disorder is warranted. See 38 U.S.C. § 5107. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David B. Scheirich, 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.