Citation Nr: 1751946 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 16-05 133 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: James M. McElfresh, II, Agent WITNESSES AT HEARING ON APPEAL The Veteran and his Spouse ATTORNEY FOR THE BOARD T. Fitzgerald, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1973 to February 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. In September 2016, the Veteran presented testimony during a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the electronic claims file. This appeal was processed using the Virtual VA and VBMS paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDING OF FACT The Veteran's service-connected disabilities do not satisfy the threshold criteria for a TDIU and the claim does not warrant extraschedular consideration. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5107(b) (West 2014); 38 C.F.R. §§ 3.341, 4.16(a), 4.25 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate review by the Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet.App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, infra. The Board finds that VA's duties to notify and assist have been met and all due process considerations have been satisfied. Except as discussed herein, the Veteran has not raised issues with the duties to notify or assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) (applying Scott to the duty to assist). Further, the Veteran has not alleged any deficiency with the conduct of his hearing before the undersigned with respect to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). In this regard, the Federal Circuit ruled in Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Thus, the Board need not discuss any potential Bryant problem because the Veteran has not raised that issue before the Board. TDIU Analysis A TDIU may be assigned when the disabled veteran is, in the judgment of VA, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran does not meet the initial eligibility requirements to receive TDIU benefits because he is rated at 50 percent for service-connected migraine headaches, 20 percent for meralgia paresthetica, right (also claimed as right leg sciatica), and has a noncompensable rating for hemorrhoids. The Veteran's combined rating is only 60 percent. See 38 C.F.R. § 4.16(a). The Board notes that though the Veteran is service-connected for meralgia paresthetica, right, and hemorrhoids, he does not allege these conditions affect his employability, and there is nothing in the record suggesting they do. Therefore, the analysis below focuses on the impact his migraine disability has on his ability to obtain and maintain gainful employment. If a claimant does not meet the threshold criteria, a total disability evaluation may still be assigned, but on a different basis. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). The rating boards are required to submit all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards, to the Director of Compensation Service for extraschedular consideration. Id. The Board finds that the evidence does not warrant referral for extraschedular consideration. While the Veteran contends that he is entitled to a TDIU because of his service-connected migraine disability, the weight of the evidence shows that the Veteran is unemployable due to a multitude of nonservice-connected disabilities. Social Security Administration (SSA) records show that the Veteran stopped working in February 2007. On a July 2007 SSA disability application, the Veteran reported that the strokes he had suffered affected his ability to work; he did not mention headaches. In December 2007, the SSA determined that the Veteran has been unable to engage in substantially gainful activity since February 2007 due to cardiac dysrhythmias and the late effects of cerebrovascular disease. It was determined that these conditions were unlikely to medically improve. The Veteran was afforded a VA examination to assess the severity of his migraine disability in November 2007. He reported experiencing headaches one to two times weekly, but told the examiner that he is functional 90 percent of the time. He also told the examiner that he left his previous employer after experiencing a stroke in February 2007. In September 2008, the Veteran reported that his service-connected migraine disability prevented him from working. He reported suffering from debilitating headaches two to three times monthly. The Veteran had an additional VA examination to assess the severity of his migraine disability in December 2013. The Veteran reported that he suffered from constant head pain, pulsating or throbbing head pain, pain occurring on both sides of his head and one side of his head, and pain which worsened upon physical activity. He listed nausea, vomiting, sensitivity to light and sound, changes in vision and sensory changes as non-headache symptoms associated with his migraine disability. The Veteran reported that his typical head pain lasted more than two days, and affected both sides of his head. The Veteran reported very frequent prostrating and prolonged attacks of migraine headache pain. The examiner concluded that the Veteran was unable to perform the activities required at his last employer. He stated that the Veteran was unable to perform extensive reading, walking, or working in different weather when he was experiencing a headache. May 2014 VA treatment records reflect that the Veteran reported experiencing debilitating headaches one to two times a month. The treating physician determined that the Veteran's migraine disability appeared to be improving. April 2015 VA treatment records reflect that the Veteran reported weekly headaches, and that his medication was very helpful. The Veteran applied for a TDIU in July 2015. At that time, he had three years of college education, and experience as a zoning officer, a project manager, and a public utilities inspector. He reported that migraines and a low back disability prevented him for securing or following any substantial gainful occupation. The Veteran is not service-connected for a low back disability. He reported that he had not tried to obtain any other form of employment since he became too disabled to work in February 2007. In August 2015, the Veteran's prior employer submitted a Request for Employment Information in Connection with Claim for Disability Benefits form. She reported that the Veteran left his position in February 2007 after suffering from a stroke which rendered him unable to perform essential job duties. The Veteran was afforded a VA examination to assess the severity of his migraine disability in August 2015. The Veteran reported that he suffered from constant head pain, pulsating or throbbing head pain, pain occurring on both sides of his head, and pain which worsened upon physical activity. He listed nausea, vomiting, sensitivity to light and sound, changes in vision and sensory changes as non-headache symptoms associated with his migraine disability. The Veteran reported that his typical head pain lasted more than two days, and affected both sides of his head. The Veteran reported very frequent prostrating and prolonged attacks of migraine headache pain. The examiner concluded that the Veteran was unable to work due to the chronic, severe nature of his headaches. The examiner did not provide any rationale or explanation with his conclusion, or explain the kind of work the Veteran was precluded from obtaining due to his migraine disability. November 2015 VA treatment records reflect that the Veteran was experiencing debilitating headaches about one to two times a month. He reported that he took headache medication on an as needed basis, which equated to about two times per week. The treating physician explained that the medication was being used incorrectly, and should be used daily. The Veteran was afforded a VA examination to assess mental disorders in April 2016. He reported that he was first terminated from a work position in the early 1980's for frequent use of sick leave, secondary to his migraine disability, and difficulty getting along with supervisors. He told the examiner that he left his job in February 2007 because he was having difficulty completing tasks in a timely manner and he experienced difficulty in getting along with a new supervisor. As mentioned above, the Veteran presented testimony during a September 2016 Travel Board hearing before the undersigned Veterans Law Judge. The Veteran stated that he experienced migraines every other day. He testified that he was last employed in February 2007, and that during his employment he experienced migraines that interfered with his job. He stated that following a seizure in February 2007, he was advised to end his employment. The Veteran also testified that he had never been hospitalized for migraines. The Board finds that the facts are not sufficient to warrant referral to the Director of Compensation Service for consideration of an extraschedular TDIU. The evidence indicates that the Veteran's migraine disability, alone, does not prevent him from obtaining or maintaining substantially gainful employment. Instead, the evidence shows that the Veteran is unable to obtain employment due to several nonservice-connected conditions in addition to his service-connected migraine disability. While the August 2015 VA examination concluded the Veteran's migraine disability precluded the Veteran from working, many of the Veteran's own statements discussed above indicate that the symptoms which prevent him from working are not connected to his service-connect migraine disability, but related to nonservice-connected incidents of stroke and its residual effects. Additionally, the Veteran referenced a nonservice-connected low back condition in conjunction with migraines on his July 2015 application for a TDIU. The Veteran's allegations now, in connection with his TDIU claim, that it is really his headaches that render him unemployable lack credibility. He clearly stated on numerous occasions prior to filing his TDIU claim that it was his non service-connected conditions that led him to leave his last position. After filing his TDIU claim, he began to assert his headaches interfered with his last position, but this is simply not believable in light of his numerous statements otherwise before filing his claim. The headaches clearly interfere with his ability to work - the 50 percent rating contemplates a severe economic impact. This does not equate with inability to work, but rather recognizes that a person's ability to earn a living would be severely affected due to headaches. The fact that he is currently unemployed is not enough; the question is whether or not the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Beaty v. Brown, 6 Vet. App. 532, 538 (1994). As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply and entitlement to a TDIU is denied. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to a TDIU is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs