Citation Nr: 1330829 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 09-14 920 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia THE ISSUE Entitlement to a total disability rating due to individual unemployability (TDIU) caused by service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty from November 1990 through April 1992. This case was previously before the Board of Veterans' Appeals (Board) in December 2010, at which time, it was remanded for further development. In June 2012, following additional development of the record, the VA Appeals Management Center (AMC) in Washington, D.C. raised the Veteran's rating for migraine headaches from 30 percent to 50 percent, effective December 27, 2012. However, the AMC confirmed and continued the RO's denial of entitlement to a TDIU. Thereafter, the case was returned to the Board for further appellate action. In June 2010, during the course of the appeal, the Veteran had a video conference with the Veterans Law Judge whose signature appears at the end of this decision. The presiding Veterans Law Judge conducted the proceeding in accordance with the mandates of 38 C.F.R. § 3.103(c)(2) insofar as 1) explaining fully the issue and 2) suggesting the submission of evidence that the claimant may have overlooked and that would be advantageous to his position. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). Therefore, there is no prejudice to the Veteran's claim as a result of the conduct of that hearing. See Bryant, 23 Vet. App. at 498 (citing to 38 U.S.C. § 7261(b)(2); Shinseki v. Sanders, 129 S. Ct. 1696, 1704 (2009)). FINDINGS OF FACT 1. The Veteran has a combined schedular rating of 70 percent based on the following service-connected disabilities: migraine headaches, evaluated as 50 percent disabling; and an hemangioma of the left arm and hand, evaluated as 40 percent disabling. 2. The Veteran has post high school education in criminal justice, training and work experience as a police officer, and work experience in security. 3. The Veteran's service-connected disorders preclude him from securing and following a substantially gainful occupation consistent with his education and work experience. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 and Supp. 2013); 38 C.F.R. §§ 3.159, 4.3, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duty to Notify and Assist Prior to consideration of the merits of the Veteran's appeal, the Board must determine whether VA has met its statutory duty to assist him in the development of the issue of entitlement to a TDIU. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. After reviewing the record, the Board finds that VA has met that duty. In December 2005, VA received the Veteran's claim, and there is no issue as to providing an appropriate application form or completeness of the application. Following the receipt of that application, VA notified the Veteran of the criteria for a TDIU, as well as the information and evidence necessary to substantiate and complete his claim, including the evidence to be provided by the Veteran and notice of the evidence VA would attempt to obtain. Following the notice to the Veteran, VA fulfilled its duty to assist him in obtaining identified and available evidence necessary to substantiate his claim. In sum, the Veteran has been afforded a meaningful opportunity to participate in the development of his appeal. He has not identified any outstanding evidence which could support his claim; and there is no evidence of any VA error in notifying or assisting the Veteran that could result in prejudice to him or that could otherwise affect the essential fairness of the adjudication. Accordingly, the Board will proceed to the merits of the appeal. The Veteran contends that he is unemployable as a result of his service-connected migraine headaches and hemangioma of the left arm and hand. Therefore, he maintains that a TDIU is warranted. After carefully considering the claim in light of the record and the applicable law, the Board agrees. Accordingly, the appeal will be granted to the extent indicated. When the veteran's schedular rating is less than total, a total rating may nonetheless be assigned provided that when there are two or more disabilities, at least one disability must be ratable at 40 percent or more, and any additional disabilities must result in a combined rating of 70 percent or more. In addition, the disabled person must be unable to secure or follow a substantially gainful occupation. 38 C.F.R. § 4.16(a). When the veteran's schedular rating is less than total (for a single disability or combination of disabilities), a total rating may nonetheless be assigned provided that if there is only one service-connected disability, this disability shall be rated at 60 percent or more. When there are two or more disabilities, at least one disability must be ratable at 40 percent or more, and any additional disabilities must result in a combined rating of 70 percent or more, and the disabled person must be unable to secure or follow a substantially gainful occupation. 38 C.F.R. § 4.16(a). Substantially gainful employment is that which is ordinarily followed by the nondisabled to earn a livelihood, with earnings common to the particular occupation in the community where the employee resides. VA adjudication manual, M-21-1 Part VI, Para. 7.14(a) (Change 52, Aug. 26, 1996). This suggests a living wage. Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). The ability to work sporadically or to obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Advancing age and nonservice-connected disability may not be considered in the determination of whether a veteran is entitled to TDIU. 38 C.F.R. § 3.341(a), 4.19 (2009). A review of the record discloses that the Veteran has a 70 percent combined schedular rating for the following service-connected disorders: migraine headaches, evaluated as 50 percent disabling; and a cavernous hemangioma of the left upper extremity, evaluated as 40 percent disabling. Clearly, he meets the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a). The salient question is whether he is unemployable due, solely, to those service-connected disabilities. Records from the Social Security Administration and the reports of a February 2011 VA examination and March 2011 VA Social and Industrial Survey suggest that he is not. Although they find him unemployable, they cite multiple service-connected and nonservice-connected disabilities. However, by the very wording of the rating criteria, the assignment of the 50 percent rating for migraine headaches is an acknowledgement that those headaches are not only very frequent and prostrating in nature but prolonged and productive of severe economic inadaptability. 38 C.F.R. § 4.124, Diagnostic Code 8100. When combined with the 40 percent rating for his service-connected upper extremity disorder, the level of his service-connected disabilities militate in favor of the Veteran's claim. In addition, he has little more than a high school education and reportedly last worked on a regular basis in 1997. A January 2006 letter from the Veteran's father suggests that the Veteran worked for the father's business, that is, a protected environment, rather than a substantially gainful occupation. Taken together, these factors tend to balance the negative evidence, such that there is an approximate balance of evidence both for and against the Veteran's claim. Under such circumstances, all reasonable doubt is resolved in favor of the Veteran, and the case will be decided on that basis. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. Accordingly, the Board finds that a TDIU is warranted. ORDER Entitlement to a TDIU is granted, subject to the law and regulations governing the award of monetary benefits. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs