Citation Nr: 1624679 Decision Date: 06/20/16 Archive Date: 06/29/16 DOCKET NO. 11-06 362 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to a total rating based upon individual unemployability due to service-connected disabilities (TDIU) prior to April 9, 2014. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. J. Drucker, Counsel INTRODUCTION The Veteran had active military service from September 1998 to September 2001. This case initially came to the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, that reduced the rating for the Veteran's service-connected headache disability from 30 percent to noncompensable, effective July 1, 2010. Jurisdiction of her case is now with the Huntington, West Virginia, RO. In a February 2011 rating decision, the Huntington RO assigned a 10 percent rating for the Veteran's headache disability from July 26, 2010. Her statement of record reflected her contention that she was entitled to a compensable rating for her headaches prior to July 26, 2010, and a rating in excess of 10 percent thereafter, and that the reduction and the RO's subsequent failure to award her a rating higher than 10 percent were erroneous. In December 2011, the Veteran testified during a hearing before the undersigned that was conducted at the Board's main office in Washington, D.C. A transcript of the hearing is of record. In a February 2014 decision, the Board restored the 30 percent rating for migraine headaches from July 1, 2010 and denied a rating higher than 30 percent for the headaches. At that time, the Board remanded the Veteran's claim for a TDIU to the Agency of Original Jurisdiction (AOJ) for further development. In a July 2014 rating decision, the RO, in pertinent part, granted a 50 percent rating for migraine headaches, and a TDIU, both effective from April 9, 2014. The issue as characterized on the title page reflects the RO's recent action. FINDING OF FACT Prior to April 9, 2014, the Veteran was unable to secure and maintain substantially gainful employment due solely to the effects of her service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met prior to April 9, 2014. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.19 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION A TDIU is assigned where the combined rating for the Veteran's service-connected disabilities is less than total if the disabled Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; 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). In exceptional cases, an extra-schedular rating may be assigned on the basis of a showing of unemployability alone. See 38 C.F.R. § 4.16(b). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining 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. If the appropriate rating under the pertinent diagnostic code of the rating schedule is less than 100 percent, the issue of unemployability must be determined without regard to the advancing age of the veteran. 38 C.F.R. §§ 3.341(a), 4.19. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 4.3. Gilbert v. Derwinski, supra. As noted in the February 2014 Board remand, the claim for a TDIU is an element of all claims for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran's current claim for an increased rating for her headache disability stems from an October 2009 proposed rating reduction. Thus, VA is required to consider entitlement to a TDIU during the entire period beginning that date. The Veteran is currently in receipt of a TDIU from April 9, 2014; hence, the question of his entitlement to a TDIU on and after that date is not before the Board. In this case, prior to April 9, 2014, service connection was in effect for migraine headaches, evaluated as 30 percent disabling; lumbosacral strain, evaluated as 10 percent disabling; residuals of stress fractures to the right and left femurs, each evaluated as 10 percent disabling; residuals of stress fractures of the right and left pelvis with limitation of flexion, each evaluated as 10 percent disabling; and tinnitus, evaluated as 10 percent disabling. Her combined disability evaluation was 60 percent prior to April 9, 2014. Thus, the Veteran did not meet the schedular criteria for consideration of TDIU under 38 C.F.R. § 4.16(a). That notwithstanding, it is the policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). Therefore, if a veteran fails to meet the rating enunciated in 38 C.F.R. § 4.16(a) , as here, an extraschedular rating is for consideration where a veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b). The Board recognized that it was prohibited from assigning a TDIU on the basis of 38 C.F.R. § 4.16(b) in the first instance without ensuring that the claim was referred to VA's Director of Compensation Service for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1 (2001). In accordance with the February 2014 remand, the Veteran's claim was forwarded to the Director of VA's Compensation Service for extraschedular consideration. His July 2014 report notes a review of a May 2009 VA treatment record, the Veteran's May 2010 statement, and July 2010 and March 2014 VA examination reports. The Director determined that there was no evidence to warrant an extraschedular grant of a TDIU prior to April 9, 2014. As the Director of VA's Compensation Service considered entitlement to a TDIU on an extraschedular basis, the Board may now examine entitlement to a TDIU on that basis. Anderson v. Principi, 18 Vet. App. 371 (2004). The evidence of record includes the Veteran's June 2014 formal claim for a TDIU (VA Form 21-8940) that reflects her inability to work full time due to migraine headaches since January 2008, when she last worked full time and became too disabled to work. She worked full time as a medical administrative assistant for the Department of Defense from November 2005 to January 2008. The Veteran had two years of college education. The Veteran's work history includes working for the Department of Defense from 2005 to 2008, at a bakery for six months in 2009 and, as a part time teacher's assistant 2 to 5 days a week since November 2013, according to the April 2014 VA examination report (4/9/14 VBMS VA Examination, pps.6-7). In a July 2015 Employment Questionnaire, the Veteran reported that she worked varied hours in a public school system since January 2015, and her highest gross earnings per month were $300 (9/3/15 VBMS VA 21-4140-1 Employment Questionnaire, p.1). The Veteran testified that she was unable to work due to back pain and headaches. See Board hearing transcript at page 6. She worked at a hospital at Fort Leonard Wood, used up her sick leave, and left to avoid being fired or reprimanded. Id. Thereafter, for 2 or 3 months, she worked for a friend who needed help in a bakery. Id. The Veteran has four minor children (8/31/10 VBMS VA 21-686c Declaration of Status of Dependents, p.1; 5/14/16 VBMS VA 21-0820 Report of General Information, p.1). The medical evidence of record includes private hospital records in February 2008 showing that the Veteran was seen in the emergency room for complaints of a severe headache that started three days earlier and was similar to previous headaches (8/31/10 VBMS Medical Treatment Record Non-Government Facility, p. 3). A May 2009 VA primary care record notes the Veteran's history of arthralgias secondary to service-connected problems and migraines in the past with several hospitalizations with visual loss accompanying head pain (9/28/09 VBMS Medical Treatment Record-Government Facility, p.1). In a May 2010 statement, the Veteran reported that she was largely affected by her service-connected migraine headaches several times a month and currently experienced daily headaches. She was incapacitated for several weeks and was seen in a few emergency rooms for a severe migraine that lasted several weeks. The Veteran had to send three of her children to others' homes because she was unable to care for them in the spring of 2007. She saw a chiropractor during the spring of 2009 for treatment of her headaches during her last pregnancy since medication was not an option. She took prescribed medication and over the counter Excedrin migraine and Tylenol extra strength. In July 2010, a VA examiner noted the Veteran's progressively worsening headaches previously treated with Imitrex injections and now oral Imitrex, as needed. The Veteran's symptoms were now much more frequent. She had a typical migraine at least twice per week and symptoms lasted for several hours, that the examiner stated impacted her functional activities "significantly" (7/26/10 VBMS VA Examination, p.1). The examiner reported that most of the Veteran's headache episodes were associated with an aura history of photosensitivity and associated with nausea or vomiting. She gave a past history of transient loss of visual fields. The Veteran stated that most of her headache episodes were prostrating. The examiner noted that the Veteran was not working but, if she was, she would be unable to work with computers for too long due to her headaches. The headache disability affected occupational activities and included vision difficulty, lack of stamina, weakness or fatigue, and pain. The examiner commented that, when symptomatic, the Veteran was unable to do anything, that was about twice a week, and she had to lay down in a quiet dark room; in between episodes, she could function. Her headaches prevented her from completing daily chores, driving, travelling, dressing, bathing, grooming, and eating. The April 2014 VA examiner noted the Veteran's history of migraine headaches that worsened in the past three years. She had daily constant headaches that interfered with sleep, and caused vomiting and severe light sensitivity. Medications were not helpful. Approximately twice a week she had more severe headaches that necessitated her going into a darkened room and resting for several hours. The examiner stated that the Veteran had multiple recurring episodes of headaches weekly that lasted two to four hours or more and affected her ability to work in a full time capacity. The examiner commented that the Veteran worked part time as a teacher's aide because she was able to choose her schedule. While the evidence shows that the Veteran has worked on a part time basis since 2009, marginal employment is not considered to be substantially gainful employment. Marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a) (2015). The poverty threshold for a family with four minor children, as determined by the federal government, has ranged from $28,666 in 2009 to $31,670 in 2015. U.S. Census Bureau; available at http://www.census.gov/hhes/www/poverty/data/threshld/thresh09.html; http://www.census.gov/hhes/www/poverty/data/threshld/thresh10.html; http://www.census.gov/hhes/www/poverty/data/threshld/thresh11.html; http://www.census.gov/hhes/www/poverty/data/threshld/thresh12.html; http://www.census.gov/hhes/www/poverty/data/threshld/thresh13.html; http://www.census.gov/hhes/www/poverty/data/threshld/thresh14.html; and http://www.census.gov/hhes/www/poverty/data/threshld/thresh15.html. In 2009, the Veteran worked only six months (or less) in a bakery and, since 2013, she worked part time as a teacher's aide. Her reported highest gross earnings per month (in 2015) as a teacher's aide were $300. If the Veteran worked 12 months at her highest level, her earnings would be $36,000, which is above the poverty level. However, she repeatedly reported that her schedule varied due to headache disability and she worked 2 to 5 days a week, that suggests she earned a lower salary much closer to the poverty level. The July 2010 VA examiner reported that the Veteran's headaches significantly affected her ability to function, and the 2014 VA examination shows that migraine headaches causes significant limitations in the kinds of work the Veteran could perform. The evidence is at least in equipoise as to whether the Veteran's service-connected headaches, along with her back and pelvic disabilities, prevent her from securing and following substantially gainful employment consistent with her education and occupational experience. The evidence also shows that she has other significant, non-service-connected disabilities. The court has held that determinations of unemployability are legal questions and medical opinions are not entirely dispositive. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Resolving doubt in the Veteran's favor, a TDIU is granted prior to April 9, 2014. 38 U.S.C.A. § 5107(b); Gilbert. The Board has not set a specific effective date for the beginning of the TDIU, so as to permit the AOJ to set an effective date in the first instance, and afford the Veteran the opportunity to submit evidence and argument as to the specific appropriate effective date. ORDER Entitlement to a TDIU is during the entire appeal period prior to April 9, 2014 is granted. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs