Citation Nr: 1752489	
Decision Date: 11/15/17    Archive Date: 11/22/17

DOCKET NO.  05-31 928	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to a total disability rating due to individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

A. Gibson


INTRODUCTION

The Veteran served on active duty from June 1974 to June 1976.

This appeal to the Board of Veterans' Appeals (Board) is from a January 2004 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.

In July 2017, the Veteran had a personal hearing before the undersigned VLJ.

In December 2016, the Board last remanded this issue for additional development.  

In this decision, the Board is granting TDIU.
 

FINDINGS OF FACT

1.  The Veteran's migraines, neck disabilities, and left hand preclude him from obtaining and maintaining substantial gainful employment.

2.  He has met the requirements for a TDIU rating since June 3, 2009.


CONCLUSION OF LAW

The criteria are met for TDIU effective from June 3, 2009.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2017).







REASONS AND BASES FOR FINDINGS AND CONCLUSION

TDIU

When any impairment of mind or body sufficiently renders it impossible for the average person to follow a substantially gainful occupation, that impairment will be found to be causing total disability.  38 C.F.R. § 3.340.  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.  In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability.  38 C.F.R. § 4.15. 

If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran 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.  The existence or degree of nonservice-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran's service-connected disabilities render him incapable of substantial gainful employment.  38 C.F.R. § 4.16(a).

The Veteran meets the requirements for a TDIU rating effective from June 3, 2009, at which time his migraine headaches were rated 50 percent, and his remaining service connected disabilities combined with his headaches to result in a 70 percent rating.  See 38 C.F.R. § 4.25.


The remaining question, then, is whether his disabilities preclude him from obtaining or maintaining substantial gainful employment.  The Board notes that the diagnostic criteria for a 50 percent rating for migraines (DC 8100) requires that his headaches be productive of severe economic inadaptability.  It is therefore accepted that his headaches interfere with employability.  The record shows the Veteran has two years of college, and worked as an electrician.  He last worked in 2002.  During his hearing, he reported that his headaches, his neck pain, and his left hand prevent him from working.  He said that his head and neck have reduced mobility, and that his left hand is so weak that he cannot use it most of the time.  He also reported that he has spasms of the left hand.  

The record also shows that he has been in receipt of Social Security Administration (SSA) disability benefits, as a result of chronic amnesiac disorder due to a motor vehicle accident following service.  His service-connected disabilities do not form the basis for these benefits; the Board is also not bound by the SSA's findings.  The standard for awarding benefits under SSA regulations is different from the standard that controls the award of VA TDIU compensation benefits.  In general, SSA requires an inability to do any work, whereas VA requires an inability to do past relevant work consistent with education and occupational experience, due to service-connected disabilities.  See 38 C.F.R. §§ 3.340, 3.341, 4.16.

The Board finds that the symptoms described by the Veteran, including limited mobility of his head and neck, along with his frequent migraine headaches, and his weakened and painful left hand, precludes work as an electrician, which requires hand-eye coordination incompatible with his symptoms.  Accordingly, a TDIU rating is granted starting from June 3, 2009. 








ORDER

TDIU is granted effective from June 3, 2009.



____________________________________________
BRADLEY W. HENNINGS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs