Citation Nr: 18144348 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 16-44 289 DATE: October 24, 2018 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The evidence of record supports a finding that the Veteran’s service-connected disabilities render him unable to secure and follow substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. §§ 5110(a), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.400, 4.16 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION TDIU Total disability ratings for compensation 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. When these percentage standards are not met, consideration may be given to entitlement on an extraschedular basis, taking into account such factors as the extent of the service-connected disability, and employment and educational background. It must be shown that the service-connected disability produces unemployability without regard to advancing age. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19. Entitlement to TDIU The Veteran contends that his service-connected residuals of TBI, migraine headaches, sinusitis, and rhinitis prevent him from maintaining gainful employment. The Veteran filed his claim (VA Form 21-8940) in January 2015. The Veteran is service-connected for chronic sinusitis at 50 percent disabling; migraine headaches at 50 percent disabling; allergic rhinitis at 30 percent disabling; residuals of mild traumatic brain injury at 10 percent disabling; dry eyes and conjunctivitis at 10 percent disabling; bilateral tinnitus at 10 percent disabling; post-operative scar at noncompensable; left great toe degenerative joint disease at non-compensable; and bilateral hearing loss at non-compensable. Thus, the Veteran meets the schedular requirements for TDIU. Social Security Administration (SSA) records indicate that the Veteran has been receiving disability payments as the result of his non-service connected mood disorders since December 1995. During his March 2012 TBI VA examination, the Veteran stated that his tension type headaches do not typically interfere with his daily routine. In an additional VA Scars examination during the same month, the examiner noted that the Veteran’s scars did not impact his ability to work. Further, during a VA Sinusitis examination during that same month. The examiner indicated that the Veteran’s allergic rhinitis impacted his ability to work in that he “tried selling cars one time after coming home and could not talk to people due to constant drainage.” On a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability received January 2015, the Veteran indicated that he had 4 years of high school education and last worked in 2005 as a car salesman. He also indicated this is when he became too disabled to work. In an April 2015 VA TBI Disability Benefits Questionnaire (DBQ) examination, the examiner noted that the Veteran’s TBI residuals did not impact his ability to work. In a subsequent Sinusitis examination that same month, the examiner noted no functional impact to the Veteran’s ability to work. In a September 2015 VA Headaches DBQ examination, the examiner noted that due to daily non-migraine headaches and prostrating migraine headaches several times per week, the Veteran is unable to participate in heavy physical or sedentary employment. In a subsequent October 2015 VA Headaches DBQ examination, the examiner noted that the Veteran’s headaches impacted his ability to work in that it limited his ability to focus and concentrate and interact socially during exacerbations. In a December 2016 Headaches DBQ examination, the examiner indicated that “[the Veteran] is not able to work as he states” when responding to whether the Veteran’s headache condition impacted his ability to work. In a subsequent TBI DBQ examination that same month, the examiner indicated that the Veteran’s residuals of TBI did not impact his ability to work. Finally, in a Sinusitis DBQ, the examiner noted functional impact as reported difficulty with walking due to breathing through the Veteran’s nose. In a May 2018 VA Sinusitis DBQ examination, the examiner noted functional impact in that the Veteran experienced difficulty focusing, daytime fatigue due to poor sleep and increased anxiety. There is probative favorable and unfavorable evidence on the question of whether the Veteran is unemployable due to service connected disabilities. Accordingly, the Board resolves reasonable doubt in favor of the Veteran and finds entitlement to a TDIU is warranted. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R.A. Elliott II, Associate Counsel