Citation Nr: 18151100 Decision Date: 11/20/18 Archive Date: 11/16/18 DOCKET NO. 13-17 929 DATE: November 20, 2018 ORDER Effective August 1, 2011, a total disability rating based on individual unemployability (TDIU) is granted, subject to the laws and regulations governing the payment of monetary awards.   FINDING OF FACT From August 1, 2011, the Veteran has been prevented from securing and following substantially gainful employment as a result of his service-connected disabilities. CONCLUSION OF LAW Effective August 1, 2011, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1990 to June 1993. In an August 2017 decision, the Board granted service connection for an acquired psychiatric disorder, diagnosed as depressive disorder, and a 50 percent rating for migraines. At that time, the Board also denied service connection for hearing loss and irritable bowel syndrome, and a higher rating for tinnitus. In August 2017, the Board also determined the issue of a TDIU had been raised by the record pursuant to Rice v. Shinseki, 22 Vet. App. 447, 451-53 (2009). The claim was remanded for further development and initial consideration. In October 2018, the Veteran’s representative submitted additional evidence and waived initial RO consideration. See 38 C.F.R. § 20.1304(c). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). TDIU Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The determination of a single disability as ratable at 60 or 40 percent or more includes consideration of disabilities involving one or more lower extremities as a single disability. Id. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a nonservice-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice, 22 Vet. App. at 452. Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). A 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). Marginal employment is not considered substantially gainful employment and is 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 also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold. Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a); see Ortiz-Valles v. McDonald, 28 Vet. App. 65 (2016). Following the August 2017 Board remand, the Veteran submitted a TDIU application in September 2017. He contends that his three service-connected disabilities, depressive disorder, migraines and tinnitus, prevent him from securing or following any substantially gainful occupation. The Veteran indicated he has two years of college education and a recent work history of production manager, light carpentry and customer service. He reported a conflicting history of becoming too disabled to work in July 2015, having his full-time employment being affected as of December 2013, also last working full-time as of August 2011. The Veteran was afforded an August 2011 VA examination for his migraines in which the examiner indicated he suffers pulsating headache pain, pain located on the side of the head and worsening pain with physical activity. Additional symptoms included nausea, vomiting, sensitivity to light and sound, changes in vision and sensory changes. She indicated his migraines impact his ability to work, including forcing him to leave work during migraine attacks. The Veteran was afforded a November 2014 VA examination in which the examiner reported similar symptoms, as well as very prostrating and prolonged migraines productive of severe economic inadaptability. She stated when having a migraine during work, he has to stop and rest until it goes away. With regard to his service-connected depressive disorder, he submitted a November 2013 private medical opinion. The examiner indicated he suffers occupational and social impairment with deficiencies in most areas. Psychiatric symptoms included depressed mood, anxiety, suspiciousness, panic, memory loss, suicidal ideation, obsession rituals and an inability to perform activities of daily living. The Veteran submitted a March 2016 statement he indicated his service-connected migraines have contributed to a reduced quality of life. He stated he had two failed marriages and as of July 2015, had to resign from his part-time job at Lowe’s. The Board notes a VA treatment record from January 2014 indicated he was continuing to work part-time as a manager for Lowe’s and a September 2015 VA record confirmed that he was unemployed, having stopped his job at Lowe’s. A September 2018 evaluation was provided from Dr. Skaggs. The conclusion was that the Veteran is more likely than not unable to maintain substantially gainful employment due to the combined effects caused by his service-connected depressive disorder, migraines, tinnitus and side effects caused by the medication to treat his condition. The opinion was that was so since 2011 and that, although the Veteran had been employed off and on since then, Dr. Skaggs did not consider employment substantially gainful based on the Veteran’s earnings reports from the Social Security Administration (SSA). First, the Board finds that, from August 1, 2011, the combined effects of the Veteran’s service-connected disabilities preclude him from securing or following a substantially gainful occupation. This is particularly so when reasonable doubt is resolved in his favor. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Next, the Veteran also meets the requirements for a TDIU on a schedular basis from August 1, 2011. From February 8, 2012, the Veteran had a combined rating of 80 percent, and then 90 percent from November 12, 2013, with at least one rating at 40 percent or more (both migraines and psychiatric disorder). See 38 C.F.R. § 4.16(a). For the period between August 1, 2011, and February 8, 2012, service connection for the psychiatric disorder was not in effect. However, the Board will again resolve reasonable doubt in the Veteran’s favor and find that the migraines and tinnitus also combined to preclude substantially gainful employment. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Moreover, an argument can be made that both migraines and tinnitus are part of the organic nervous system. Thus, when their ratings are combined, and only for the specific facts of this Veteran’s case, they equate to one disability of 60 percent thereby meeting the schedular requirements under 38 C.F.R. § 4.16(a)(3) for this period. Lastly, the Board finds that the Veteran was not precluded from substantially gainful employment prior to August 1, 2011. This is the date the Veteran himself reported that he last worked full-time. Additionally, it aligns with Dr. Skaggs’ opinion of the year when the Veteran met the TDIU standard. Furthermore, the Veteran’s SSA earnings information shows above marginal income in 2010 ($23,053) and 2011 ($19,854). It is likely 2011 is less due to not working full-time from August to December of that year. The poverty levels for those years that are indicative of marginal employment were $11,344 and $11,702, respectively. See https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html. Thus, greater than marginal employment is shown prior to August 1, 2011, on a facts found basis. Because there is also no indication of a protected work environment, TDIU cannot be awarded as it would be duplicative of actual earned employment income. In sum, the Board finds the Veteran has been precluded from securing or following a substantially gainful occupation based on his service-connected disabilities from August 1, 2011, and a TDIU is warranted on a schedular basis from that date. As the preponderance of the evidence is against a TDIU prior to that date, the benefit-of-the-doubt doctrine is not applicable, and a TDIU is not warranted prior to August 1, 2011. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Isaacs, Associate Counsel