Citation Nr: 1513523	
Decision Date: 03/30/15    Archive Date: 04/03/15

DOCKET NO.  05-11 100	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana


THE ISSUES

1.  Entitlement to an extraschedular evaluation in excess of 50 percent for migraine headaches.  

2.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).  


REPRESENTATION

Appellant represented by:	Sean A. Ravin, attorney


WITNESS AT HEARING ON APPEAL

E.T., Ph.D., expert witness


ATTORNEY FOR THE BOARD

Thomas D. Jones, Counsel


INTRODUCTION

The Veteran, who is the appellant, served on active duty from June 1985 to November 1989.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2004 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in New Orleans, Louisiana.  

In June 2007 the Board issued a decision adjudicating the issues of whether a disability rating in excess of 30 percent was warranted for service-connected migraine headaches and whether a TDIU was warranted.  The Board denied the appeal as to a TDIU and granted the appeal to the extent of awarding a 50 percent disability rating for migraine headaches, the maximum schedular rating for that condition.  

The Veteran appealed that decision to the U.S. Court of appeals for Veterans Claims (Court).  In March 2009 the Court granted a Joint Motion for Partial Remand, which vacated those parts of the Board's June 2007 decision which denied a disability rating in excess of 50 percent for migraine headaches and denied a TDIU.  These issues were then remanded to the Board for compliance with the instructions designated therein.  The case was returned to Board in June 2010, at which time it was again remanded for additional development.  The required development has been completed and this case is appropriately before the Board.  See Stegall v. West, 11 Vet. App. 268 (1998).  

During the pendency of this appeal, the Veteran was awarded a schedular 100 percent combined rating, effective from September 5, 2007.  Nevertheless, the Board must still consider entitlement to a TDIU for the period prior to that date.  

In December 2014, a medical expert witness testified from the RO via before the undersigned Veterans Law Judge.  The Veteran herself was not present at the hearing and did not testify.  A transcript of this hearing has been associated with the claims file.  

The issue of an extraschedular rating for migraine headaches is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  A claim for a TDIU by the Veteran was received by VA on September 8, 2003.  

2.  On the date of receipt of the Veteran's TDIU claim, she was in receipt of service connection for status post total uterine hysterectomy, with a 30 percent disability evaluation; for gastroesophageal reflux disease, with a 30 percent evaluation; for urinary tract infection, with a 30 percent evaluation; and for migraine headaches, also with a 30 percent evaluation.  She was also in receipt of special monthly compensation for loss or loss of use of a creative organ.  Her combined rating was 80 percent.  

3.  Competent evidence has been presented establishing that the Veteran's service-connected disabilities prevent her from obtaining or maintaining gainful employment.  



CONCLUSION OF LAW

Resolving reasonable doubt the Veteran's favor, the criteria for a TDIU prior to September 5, 2007 have been met.  38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.1, 4.3, 4.15, 4.16, 4.18, 4.19 (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  As the Board is granting the claim of entitlement to TDIU below, no further discussion of the duties to notify and assist is necessary.

TDIU

The Veteran seeks a TDIU for the period prior to September 5, 2007, when her combined rating was less than 100 percent on a schedular basis.  She contends that her service-connected disabilities precluded her from obtaining or maintaining gainful employment prior to that date.  

A total disability evaluation will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. § 3.340 (2014).  If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age.  38 C.F.R. § 3.341.  

If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher.  38 C.F.R. § 4.16(a).  

The Veteran's current claim for a TDIU was received on September 8, 2003.  On that date, she was in receipt of service connection for status post total uterine hysterectomy, with a 30 percent disability evaluation; for gastroesophageal reflux disease, with a 30 percent evaluation; for urinary tract infection, with a 30 percent evaluation; and for migraine headaches, also with a 30 percent evaluation.  She was also in receipt of special monthly compensation for loss or loss of use of a creative organ.  Her combined rating was 80 percent.  

According to the evidence of record, the Veteran had marginal or less-than-full-time employment prior to 2007.  She last worked on a regular full-time basis in approximately 1994.  Thereafter, she worked a series of temporary, part-time, or short-term full-time jobs.  She was afforded vocational rehabilitation treatment by VA beginning in approximately 2000, at which time she began taking college courses.  According to an October 2007 vocational rehabilitation summary letter submitted by R.O., M.S., a VA vocational rehabilitation counselor, the Veteran was initially able to maintain a "competitive" grade point average (GPA) during her college coursework, but soon began to fall behind due to various health issues which presented a "serious employment handicap", according to the VA counselor.  R.O. ultimately concluded that the Veteran had no "reasonable opportunities at competitive gainful employment."  This opinion, however, was based on both service-connected and nonservice-connected disabilities, according to the October 2007 letter.  

In support of her claim, the Veteran has submitted the November 2014 written medical opinion of E.T., Ph.D.  Dr. T. also testified at the December 2014 hearing.  In formulating her opinion, Dr. T. stated she had reviewed the Veteran's entire medical record, as well as conducted an hour-long telephone interview with the Veteran.  After reviewing the claims file and interviewing the Veteran, Dr. T. concluded the Veteran was unemployable due to her service-connected disabilities at the time of the filing of the September 2003 unemployability claim.  Dr. T. noted that the Veteran had not been able to maintain regular full-time employment for the past several years, despite VA vocational rehabilitation training.  Dr. T. noted that the Veteran's service-connected disabilities, migraine headaches, gastroesophageal reflux disease, urinary tract infection, and a hysterectomy, caused her such significant pain and discomfort as to prevent her from maintaining the concentration and focus required for full-time work.  

After considering the totality of the record and affording the Veteran the full benefit of the doubt, the Board finds a TDIU is warranted prior to September 5, 2007.  38 U.S.C.A. § 5107.  


ORDER

A TDIU is granted.  


REMAND

In exceptional circumstances, where the schedular evaluations are found to be inadequate, 38 C.F.R. § 3.321(b)(1) provides that a veteran may be awarded a rating higher than that encompassed by the schedular criteria.  Under the regulation, an extraschedular disability rating is warranted upon a finding that "the case presents such an exceptional or unusual disability picture 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."  If exceptional circumstances are found, the matter must be referred to the Under Secretary for Benefits or the Director of the Compensation Service for consideration of assignment of an extraschedular evaluation.  38 C.F.R. § 3.321.  The Court has 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; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations.  Floyd v. Brown, 9 Vet. App. 88 (1996).  

In the present case, the Veteran has reported visual disturbances resulting from her migraine headaches, a symptom not specifically contemplated within the schedular criteria.  As such, the Board finds sufficient evidence has been presented to refer the issue for extraschedular consideration.  Thus, in light of the above, a remand is warranted.  

Accordingly, the case is REMANDED for the following action:

1.  The Veteran's claim should be reviewed and forwarded to the Director of VA's Compensation Service or Under Secretary for Benefits for consideration of entitlement to an increased disability evaluation on an extraschedular basis for migraine headaches, in accordance with 38 C.F.R. § 3.321(b).  

2.  After undertaking any additional development deemed appropriate, and giving the appellant full opportunity to supplement the record, adjudicate the Veteran's pending claim in light of any additional evidence added to the record.  If any benefit sought on appeal remains denied, the Veteran and her representative should be furnished with a supplemental statement of the case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review.  

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



______________________________________________
H. SEESEL
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs