Citation Nr: 1752015 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 10-06 516 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Parrish, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1965 to September 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In May 2014 and February 2016, the Board remanded this matter for further development. FINDINGS OF FACT The medical and other evidence of record reasonably demonstrates that the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2017). Given the favorable disposition of the Appellant's claim for entitlement to a TDIU, the Board finds that all notification and development action needed to fairly adjudicate this claim have been accomplished. TDIU 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. A finding of total disability is appropriate when there is present any impairment of mind or body which is sufficient to make it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15 (2017). A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where the Veteran does not meet those percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment due to service-connected disability. 38 C.F.R. § 4.16(b). "Substantially gainful employment" is that employment, "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). The Veteran is service-connected for cephalalgia (claimed as headaches and dizziness), rated as 50 percent disabling, major depressive disorder, rated as 30 percent disabling, and sinusitis, rhinitis with right nasal polyp, rated as non-compensable. His combined rating is 70 percent. Therefore, the Veteran meets the minimum percentage requirements of 38 C.F.R. § 4.16(a). The remaining question is whether the Veteran's service-connected disabilities cause him to be unable to secure or follow a substantially gainful occupation. The central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant 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 or keep employment. The ultimate question is whether a Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Id. In September 2009, a letter from a social worker who worked with the Veteran stated that the Veteran's headaches and depression rendered him unable to obtain or retain employment. In June 2011, a VA examination of the Veteran regarding his headaches found that the Veteran's headaches lasted for hours. He reported that his headaches were lasting longer and that he had tried several medications with variable benefits. He was diagnosed with migraine headaches which seemed to present daily and were stable. In April 2017, a VA headache examination found the Veteran to have migraine headaches. He reported getting more sensitive to scent and fumes. He reported trying several medications, including Botox, but that nothing had helped. He reported his headache symptoms as pain, nausea, sensitivity to light, sound, and scent/fumes. He reported headaches lasted 1-2 days. The examiner stated that it was very likely that the Veteran would not be able to secure and follow a substantially gainful occupation as his migraines were not being controlled by his current medication and were becoming more severe in intensity and frequency. He was found to have weekly flare-ups which prevented him from leaving his room. In a May 2017 VA examination of the regarding his psychological disabilities, the Veteran reported that he was not working, stating that he was "totally disabled" related to PTSD, depression, and knee and wrist problems. He reported last working as a corrections officer for 6 months in 2005. He reported he stopped working after he tore all the ligaments in one knee and required a knee replacement. Prior to this, he stated he worked as a computer printer operator "for the government" for 18 years. The examiner found that Veteran's psychological impairment indicated that the Veteran's major depressive disorder did not prevent him from securing and maintaining substantially gainful employment. The examiner stated that although his symptoms related to diagnoses of PTSD and MDD contributed to mild limitations in maintaining a regular schedule and completing simple and complex tasks, these difficulties were improving with treatment and did not significantly impair his ability to maintain full time employment. In May 2017, a VA examination of the Veteran's headaches found that the frequency of the prostrating attacks was more than once a month and productive of economic inadaptability. In a May 2017 VA examination on the Veteran's functional impairment, the examiner stated that it was her opinion after history and physical exam was that the Veteran continued to suffer from the headaches and was unable to be employed fulltime due to potential exposure to triggers that would lead to him being incapacitated. In June 2017, a VA social and industrial survey. The examiner opined that the Veteran's major depressive disorder caused problems with concentration and focus which inhibited his ability to be gainfully employed. The examiner also found that the frequency and severity of the Veteran's migraine headaches caused functional problems and would impair occupational functioning. The examiner's assessment was that the Veteran would likely experience noteworthy impairment in occupational functioning due to his service connected disabilities of major depressive disorder and migraine headaches. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the evidence of record establishes that the Veteran's headaches and major depressive disorder are significant enough to preclude him from securing or following a substantially gainful occupation. The record indicates that he has limitations regarding concentration and focus and would be exposed to headache triggers that would render him being incapacitated. The Board acknowledges that the May 2017 VA psychological examination did not find that he was unable to secure gainful employment. However, that examination was limited to only the Veteran's psychological disorders and did not consider the impact of the Veteran's service connected headaches upon his employability. The majority of the evidence of record which considered the Veteran's ability to maintain gainful employment found that he was not able to sustain such employment due to his headaches in combination with his psychological disorders. Thus, resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's service-connected disabilities preclude him from securing or following substantially gainful occupation in accordance with his background and education level. Accordingly, entitlement to a TDIU is granted. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a TDIU is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs