Citation Nr: 0024323	
Decision Date: 09/13/00    Archive Date: 09/21/00

DOCKET NO.  99-09 062	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office in Togus, 
Maine


THE ISSUE

Entitlement to a total disability rating based upon 
individual unemployability due to service-connected 
disability.



ATTORNEY FOR THE BOARD

Suzie S. Gaston, Counsel



INTRODUCTION

The veteran had active military service from July 1974 to 
February 1995.  He is unrepresented in his appeal.  

This matter came before the Board of Veterans' Appeals 
(Board) on appeal from a rating decision of August 1998, by 
the Togus Regional Office (RO), which denied increased 
ratings for migraine headaches and Raynaud's disease, and 
denied a total disability rating based upon individual 
unemployability (TDIU).  The notice of disagreement with this 
determination was received in April 1999.  The statement of 
the case was issued in May 1999.  The veteran's substantive 
appeal was received in May 1999, indicating that the only 
issue being appealed was entitlement to TDIU.


FINDINGS OF FACT

1.  All relevant evidence necessary for an equitable 
disposition of the veteran's appeal has been obtained by the 
RO.  

2.  Service connection is currently in effect for:  migraine 
headaches, rated as 50 percent disabling; Raynaud's disease, 
rated as 20 percent disabling; and hemorrhoids, rated as 
noncompensably disabling.  The veteran's combined schedular 
disability evaluation is 60 percent.  

3.  The veteran's migraine headache disability, as shown by 
VA examination, is of such severity as to preclude him from 
obtaining or retaining all forms of substantially gainful 
employment.  


CONCLUSION OF LAW

The criteria for the assignment of a total disability rating 
based upon individual unemployability due to service-
connected disability have been met.  38 U.S.C.A. §§ 1155, 
5107 (West 1991); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19 
(1999).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board finds that the veteran's claim for a total 
disability rating based upon individual unemployability is 
"well-grounded" within the meaning of 38 U.S.C.A. 
§ 5107(a).  See Murphy v. Derwinski, 1 Vet.App. 78, 81 
(1990); Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990).  That 
is, we find that he has presented a claim that is plausible 
and capable of substantiation.  This finding is based upon 
his assertion that disability associated with his service-
connected migraine headaches has increased in severity and 
has rendered him unemployable.  See Proscelle v. Derwinski, 1 
Vet.App. 629 (1992); King v. Brown, 5 Vet.App. 19 (1993).  
Once determined that a claim is well-grounded, VA has a duty 
to assist in the development of evidence pertinent to the 
claim.  38 U.S.C.A. § 5107(a).  The Board notes that 
pertinent clinical data have been associated with the file, 
including current data sufficient to address the merits of 
the veteran's claim.  Thus, the duty to assist has been 
satisfied in this case.  

I.  Factual background

Some of the basic facts in this case are not in dispute and 
may be briefly summarized.  The record reflects that the 
veteran has completed two years of college; he has had 
occupational experience as a hospital corpsman during 
service, until he retired in February 1995.  Service 
connection is currently in effect for migraine headaches, 
rated as 50 percent disabling; Raynaud's disease, rated as 20 
percent disabling; and hemorrhoids, rated as noncompensably 
disabling.  The veteran's combined schedular disability 
evaluation is 60 percent.  His application for a total 
disability rating based on individual unemployability (VA 
Form 21-8940) was received in June 1997.  

Received in February 1998 were VA treatment reports dated 
from September 1995 to June 1997, which showed that the 
veteran received follow-up clinical evaluation and treatment 
for several disabilities, including migraine headaches.  
Among the records is the report of a neurological 
consultation, dated in September 1995, indicating that the 
veteran's headaches dated back to 1979; the headaches were 
described as typically right-sided, starting in the forehead 
and moving to the right side of the temporal area and behind 
and around his eyes, and preceded by a visual aura of 
flashing lights.  The veteran reported that he was not able 
to concentrate preceding the pounding headache, described as 
throbbing or pulsating, and further described as between 5 
and 10 on a pain scale with 10 being the maximum.  He noted 
that they kept him from doing normal activities.  The veteran 
also reported seeing spots before his eyes, blindness spots 
on the left-hand side before the headaches start, seeing only 
half objects, being light-sensitive afterwards, nausea, loss 
of appetite, and vomiting.  He also reported difficulty 
concentrating, fatigue, paresthesias of his face and arms, 
difficulty finding words and understanding, slurred speech, 
and a lightheaded sensation associated with the headaches.  
It was noted that triggering factors might be too much sleep 
if he stayed in bed too long, emotional stress after it has 
occurred, depression, and physical activity.  It was also 
noted the veteran had been tried, without success, on 
sublingual Cafergot, and Midrin, Inderal, and Meperidine, by 
mouth; present medications included Fiorinal and 
Amitriptyline.  The diagnostic impression was migraine 
headaches with positive family history, possibly complicated 
by rebound headaches from high dose Fiorinal, and maybe 
coffee as well.  

During a clinic vision in April 1996, it was noted that the 
headaches had stabilized.  The veteran reported 2 to 3 
headaches per week, which were treated with Fiorinal and 
Amitriptyline.  In June 1997, the veteran was seen for follow 
up evaluation of his migraine headaches; he reported 
suffering 3 to 5 headaches per week, with occasional 3-to-4-
day stretch of headaches.  He indicated that he had had to 
stop attending school.  He also indicated that he had tried 
Imitrex, but he planned to restart Amitriptyline.  

The veteran was afforded a VA compensation examination in 
June 1998, at which time he indicated that his headaches had 
gotten much worse in the last couple of years.  He related 
that he was enrolled in a nursing program, but, because of 
severe migraine headaches, he was unable to continue the 
program and had to drop out; he noted that his grades were 
going down.  It was noted that his medications included 
Pamelor, Elavil, and more recently Fiorinal.  The headaches 
were occurring 3 to 4 times per week, lasting at least 8 to 
10 hours, and sometimes the headaches were so severe that 
they lasted 21/2 days.  The veteran reported that he had to 
just stay indoors when the headaches were that bad; he was 
unable to concentrate.  He had cut down his cigarette 
consumption from more than a pack a day to only four or five 
cigarettes a day; he still drank one or two cups of coffee a 
day.  He was not having any trouble with the Raynaud 
phenomena.  The clinical assessment was of increasingly 
frequent and severe migraine headaches.  In response to the 
question, "Do the veteran's service-connected conditions 
render him unemployable," the examiner stated that the 
answer "right now" was yes; he stated that the veteran was 
unemployable due to unremitting migraine headaches.  

The veteran was also afforded a neurological examination in 
June 1998, at which time the examiner indicated that he had 
examined the veteran, and reviewed the laboratory tests, all 
of which were within normal limits.  The pertinent diagnosis 
was chronic unremitting migraine headaches.  The examiner 
concluded that the veteran was currently unemployable due to 
uncontrolled, severe, chronic migraine headaches.  

II.  Legal analysis

VA will grant a total rating for compensation purposes based 
upon unemployability, when the evidence shows that the 
veteran is precluded from obtaining or retaining any gainful 
employment consistent with his education and occupational 
experience, by reason of his service-connected disabilities.  
38 C.F.R. §§ 3.340, 3.341, 4.16 (1999).  Consideration of a 
TDIU rating requires that, if there is only one service-
connected disability, it must be rated at 60 percent or more.  
If there are two or more disabilities, at least one must be 
rated at 40 percent or more, with the additional service 
connected disabilities sufficient to result in a combined 
evaluation of 70 percent or more.  

In Hatlestad v. Derwinski, 1 Vet.App 164 (1991), the United 
States Court of Appeals for Veterans Claims referred to 
apparent conflicts in the regulations pertaining to 
individual benefits.  Specifically, the Court indicated there 
was a need for discussing whether the standard delineated in 
the controlling regulations was an "objective" one, based 
upon average industrial impairment, or a "subjective" one, 
based upon the veteran's actual industrial impairment.  

In a pertinent precedent opinion, the VA Office of General 
Counsel concluded that the controlling VA regulations 
generally provide that veterans who, in light of their 
individual circumstances, but without regard to age, are 
unable to secure and follow a substantially gainful 
occupation as a result of service-connected disability shall 
be rated totally disabled, without regard to whether an 
average person would be rendered unemployable by the 
circumstances.  Thus, the criteria include a subjective 
standard.  It was also determined that "unemployability" is 
synonymous with inability to secure and follow a 
substantially gainful occupation.  VAOPGCPREC 75-91, 57 Fed. 
Reg. 2,317 (1992).  

Indeed, the Court has since stated that, in order for a 
veteran to prevail on a claim for a total compensation rating 
based on individual unemployability, the record must reflect 
some factor which takes his case outside of the norm.  The 
sole fact that he is unemployed or has difficulty obtaining 
employment is not enough.  A high rating in itself is 
recognition that the impairment makes it difficult to obtain 
and keep employment.  The question is whether the veteran is 
capable of performing the physical and mental acts required 
by employment, not whether he can find employment.  Van Hoose 
v. Brown, 4 Vet.App. 361 (1993).  

A total rating may also be provided where the evidence 
demonstrates such an exceptional or unusual disability 
picture concerning the veteran's service-connected 
disabilities, with such related factors as marked 
interference with employment or frequent periods of 
hospitalization, as to render impractical the application of 
the regular schedular standards.  38 C.F.R. § 3.321(b).  

The Board notes that, under the above cited regulation, the 
current combined disability evaluation of 60 percent for the 
service-connected migraine headaches, Raynaud's disease, and 
hemorrhoids does not satisfy the schedular criteria for a 
total rating for compensation purposes based upon individual 
unemployability.  

The veteran argues that a total disability rating is 
warranted under an extraschedular rating.  In this regard, 
the Board notes that, in Floyd v. Brown, 9 Vet.App. 88 
(1996), the Court held that the Board is precluded by 
regulation from assigning an extraschedular rating under 38 
C.F.R. § 3.321(b)(1) in the first instance.  Rather, the 
delegations of authority found at 38 C.F.R. §§ 3.321(b)(1) 
and 2.69 require that extraschedular consideration be made in 
the first instance by the Under Secretary for Benefits 
(formerly the Chief Benefits Director) or the Director of the 
Compensation and Pension Service.  However, in the later case 
of Bagwell v. Brown, 9 Vet.App. 337 (1996), the Court noted 
that the question of an extraschedular rating is a component 
of the appellant's claim for an increased rating; the Court 
concluded that the Board is obligated to consider the 
applicability of the extraschedular rating regulation.  The 
Court further stated that 38 C.F.R. § 3.321(b)(1) does not 
preclude the Board from affirming an RO conclusion that a 
claim does not meet the criteria for submission pursuant to 
38 C.F.R. § 3.321(b)(1) or from reaching such a conclusion on 
its own.  The Court also held that, in the absence of 
prejudice in the Board's consideration of an extraschedular 
rating, the Board's determination regarding such a rating 
does not mandate a remand.  Further, as in Floyd, favorable 
action by the Board with respect to an extraschedular 
evaluation would be harmless.  

In light of the foregoing, the Board notes the frequency and 
severity of the veteran's migraine headaches, which cause 
chronic pain three to four times per week, lasting up to 8 to 
10 hours.  We note, as well, the opinions offered by Dr. York 
at the VAMC in Togus, to the effect that the veteran is 
unemployable due to unremitting migraine headaches.  We are 
not empowered to reach medical determinations without 
considering independent medical evidence to support our 
findings, and must cite to competent evidence of record to 
support our conclusions.  See Rucker v. Brown, 10 Vet.App. 
67, 74 (1997), citing Colvin v. Derwinski, 1 Vet.App. 171 
(1991), and Hatlestad v. Derwinski, 3 Vet.App. 213 (1992).

Based upon the foregoing, it is the Board's judgment that the 
evidence of record is sufficiently balanced as to place the 
matter in relative equipoise.  Under the doctrine of 
reasonable doubt, when there is an approximate balance of 
positive and negative evidence regarding the merits of an 
issue material to the determination of the matter, the 
benefit of the doubt in resolving each such issue shall be 
given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 
3.102.  In light of the applicable law, and upon 
consideration of all the evidence of record, the Board finds 
that a total rating under the provisions of 38 C.F.R. § 4.16 
is warranted, on an extraschedular basis pursuant to 38 
C.F.R. § 3.321, as the veteran is, essentially, precluded 
from a practical standpoint from maintaining gainful 
employment by reason of his service connected disabilities.  

Under the circumstances of this case, the Board concludes 
that a total disability rating for compensation purposes, 
based upon individual unemployability on an extraschedular 
basis, is warranted.  38 U.S.C.A. § 1155; 38 C.F.R. 
§§ 3.321(b)(1), 4.16.  We recognize that this award is not 
permanent, and that the RO will follow established guidelines 
for future reexamination of the veteran's condition.


ORDER

Entitlement to a total disability rating based upon 
individual unemployability due to service connected 
disability is granted, subject to the statutes and 
regulations governing the payment of monetary benefits.  




		
	ANDREW J. MULLEN
	Member, Board of Veterans' Appeals