Citation Nr: 18160474
Decision Date: 12/27/18	Archive Date: 12/26/18

DOCKET NO. 16-61 396
DATE:	December 27, 2018
ORDER
Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted.
FINDING OF FACT
The Veteran’s combined disability rating is 70 percent with one disability rated at least 40 percent, and her service-connected disabilities prevent her from following or maintaining a substantially gainful occupation.
CONCLUSION OF LAW
The criteria for entitlement to a TDIU have been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.103, 3.340, 3.341(a), 4.16(a), 4.25 (2018).
 
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served honorably in the Army from December 1989 to December 1992.  This case comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in St. Louis, Missouri.
Duties to Notify and Assists
As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2018).  In light of the Board’s favorable decision, however, any deficiencies in VA’s duties to notify and assist the Veteran with her claim decided herein are moot.
Individual Unemployability
VA will grant TDIU when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience.  38 C.F.R. §§ 3.340, 3.341, 4.16.  TDIU is granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment.  If there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability.  38 C.F.R. § 4.16(a).  If there are two or more such 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).
Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment.  38 C.F.R. §§ 3.340, 3.341, 4.16.  The central inquiry is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.”  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).
For VA purposes, the term unemployability is synonymous with inability to secure and follow a substantially gainful occupation.  VAOPGPREC 75-91, 57 Fed. Reg. 2,317 (Jan. 21, 1992).  Consideration may be given to the veteran’s education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993).  A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question 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, 4 Vet. App. at 363.
The ability to work sporadically or obtain marginal employment is not substantially gainful employment.  38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991).  Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment.  38 C.F.R. § 4.16(a).
In a February 2015 application for unemployability, the Veteran asserts she is unemployable secondary to service-connected disabilities.  The record showed that the Veteran consistently reported her disabilities negatively impacted her previous employment.
First, the Veteran has met the schedular requirements for assigment of a TDIU. As of June 2015, service connection is in effect for the following disabilities - depression, evaluated as 50 percent disabling, and fibromyalgia, rated as 40 percent disabling.  From June 2015, the Veteran’s combined disability evaluation is 70 percent with at least one disability rated as 40 percent.  Thus, the percentage requirements for a TDIU are met.  38 C.F.R. § 4.16(a).
Second, the Veteran has been unemployed throughout the appeal period.  The Veteran reported her education consisted of an Associate’s Degree and she last worked in 2009 as a medical assistant.  Social Security Administration (SSA) records confirmed that the Veteran last worked in August 2009.
Third, the evidence shows the Veteran has been unable to follow or maintain substantially gainful employment due to her service-connected disabilities.  Notably, of record are a VA medical opinion and VA examinations supporting the Veteran’s claim, and the Veteran’s credible report of functional limitations.  
Initially, the Veteran’s depression reflects occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.  See 38 C.F.R. § 4.130.  The Veteran’s fibromyalgia reflects constant or nearly constant widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbance, stiffness, paresthesias, headache, irritable bowel symptoms, depression, anxiety, or Raynaud's-like symptoms.  See 38 C.F.R. § 4.71a.  
In October 2014, a VA treatment provider opined that the Veteran has been unable to maintain gainful employment for several years.  The treatment provider explained that she has provided treatment to the Veteran for 16 years and during that time she has suffered an increasing disability due to fibromyalgia symptoms.  The provider determined that the Veteran is unable to perform manual chores, cannot stand longer than a few minutes, sit longer than 30 minutes, and requires bed rest at least three times per day for 30 minutes to an hour because of pain.
In an October 2014 VA examination, the examiner opined that the Veteran’s fibromyalgia impacts her ability to work.  The examiner noted that the Veteran lost her job over her disabilities and has not worked since 2009.
In an August 2015 VA examination, the examiner opined that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation.  The examiner noted that the Veteran has been unable to work since 2009 due to chronic pain and mobility.  The examiner noted symptoms of depressed mood, anxiety, flattened affect, chronic sleep impairment, disturbances in mood or motivation, difficulty in establishing and maintaining effective work and social relationship, and difficulty in adapting to stressful circumstances, including work or a work like setting.
In a September 2016 VA examination, the examiner opined that the Veteran’s fibromyalgia impacts her ability to work.  The examiner noted that widespread pain and muscle weakness due to over use require the Veteran to use a cane for ambulation.  The Veteran endorsed pain in her lower back, hip, and knees.  The examiner noted symptoms of widespread musculoskeletal pain, fatigue, sleep disturbances, paresthesias, headache, and depression.  Additionally, the examiner found that the symptoms were constant or nearly constant.  The Veteran stated she has pain if she walks for too long or stands for longer than five minutes.  The examiner explained that the Veteran’s condition prevents function at a physically active or emotionally stressful occupation, but would not prevent sedentary work, in a relaxed environment, for fewer hours a day with frequent breaks.
Resolving all doubt in favor of the Veteran, the Board finds that the evidence establishes the Veteran is unable to follow or maintain substantially gainful employment due to her service-connected disabilities.  The September 2016 VA examination identified that the Veteran would be able to maintain marginal employment.  The ability to work sporadically or obtain marginal employment is not substantially gainful employment.  38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991).  The examiner opined that the Veteran could maintain sedentary work for fewer hours a day with frequent breaks.  Additionally, the examiner found that the Veteran’s fibromyalgia symptoms were constant or nearly constant.  Thus, the Veteran would be able to sustain marginal employment but not substantially gainful employment.  The Board places significant weight on the October 2014 VA treatment opinion, October 2014 VA examination, and the August 2015 VA examination as they fully address the Veteran’s functional limitation of her service-connected disabilities.  Additionally, the Board places significant probative weight on the Veteran’s statements as her statements have been consistent and are supported by the medical and employment evidence of record.  Accordingly, the record demonstrates that entitlement to a TDIU is warranted.
 
K. MILLIKAN
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	C. Bruton, Associate Counsel

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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