Citation Nr: 18155189 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 16-39 448 DATE: December 4, 2018 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, effective from September 21, 2017, is granted. REMANDED Entitlement to an extraschedular TDIU due to service-connected disabilities, prior to September 21, 2017, is remanded. FINDING OF FACT Effective September 21, 2017, the Veteran has met the threshold percentage requirements and has been unable to maintain any form of substantially gainful employment consistent with his education and occupational background as a result of his service-connected disabilities. CONCLUSION OF LAW Effective September 21, 2017, the criteria for a TDIU due to service-connected disabilities have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19 (2017). INTRODUCTION The Veteran served on active duty from September 2001 to September 2008. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. During the pendency of the appeal, in an October 2017 rating decision, the RO granted service connection for the Veteran’s bilateral hearing loss and tinnitus, effective September 21, 2017. The Board bifurcated the issue of entitlement to a TDIU into two separate time periods, the period on appeal prior to September 21, 2017, and the period, resultant to the grant of a TDIU herein, from September 21, 2017. Such bifurcation of the issue permits a grant of benefits under 38 C.F.R. § 4.16(a), to which the evidence of record shows the Veteran is entitled, without additional delay due to the procedural development required under 38 C.F.R. § 4.16(b) for the period for which the service-connected disabilities did not meet the threshold percentage. See Locklear v. Shinseki, 24 Vet. App. 311 (2011) (bifurcation of a claim generally is within VA’s discretion). REASONS AND BASES FOR FINDING AND CONCLUSION Entitlement to a TDIU due to service-connected disabilities, effective from September 21, 2017 Total disability is considered to exist when there is any impairment in mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a)(1). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a Veteran is precluded, by reason of service-connected disability, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Individual unemployability must be determined without regard to any non-service-connected disabilities or the Veteran’s advancing age. 38 C.F.R. §§ 3.341(a), 4.19; See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). “Substantially gainful employment” is employment that is ordinarily followed by the nondisabled to earn a livelihood, with earnings common to the particular occupation in the community where the employee resides. See Moore v. Derwinski, 1 Vet. App. 356 (1991); Ferraro v. Derwinski, 1 Vet. App. 326 (1991). Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16 (a). Benefits based on individual unemployability are granted only when it is established that the service-connected disability or disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Disabilities resulting from a common etiology will be considered as one disability for the purpose of the above-described requirement of one 60 percent disability, or one 40 percent disability in combination. Id. As a threshold matter, the Board notes service connection has been established for migraine headaches, rated as 10 percent disabling from October 1, 2008, and as 50 percent disabling from January 12, 2015; and tinnitus, rated as 10 percent disabling from September 21, 2017; as well as for eczema and bilateral hearing loss, each rated as 0 percent disabling. The record reflects the Veteran’s migraine headaches began in 2005, while he was serving as an Aerospace Maintenance Craftsman. In November 2008, a VA examiner noted that at the time of the Veteran’s headaches originated, his duties included maintaining and inspecting C5 aircraft. Further, the examiner opined that though the trigger of the Veteran’s migraine headaches was unclear, it was at least as likely as not that these migraines were precipitated by events that occurred during his active military service. In this regard, the Board observes the Service Treatment Records (STRs) indicate the Veteran spent up to 90 percent of the time performing aircraft maintenance on the flight line. Moreover, the STRs show the measured noise concentration or intensity at the Veteran’s military work environment exceeded the permissible exposure limits. The Board further notes the medical literature indicates that environmental influences, including loud noises, can trigger a migraine. See MedlinePlus, U.S. National Library of Medicine, https://medlineplus.gov/migraine.html (last visited Nov. 30, 2018). In October 2017, the Veteran was afforded a VA hearing loss and tinnitus examination. The examiner stated that the Veteran’s Military Occupational Specialty, Aerospace Maintenance Craftsman, was highly probable for hazardous noise exposure. Upon a comparison of the Veteran’s enlistment and separation audiometric evaluations, the examiner noted there was a significant in-service hearing threshold change bilaterally. Moreover, a comparison of the February 2001 and July 2005 audiometric evaluations revealed a worsening of the Veterans hearing bilaterally. The examiner opined the Veteran’s bilateral hearing loss and tinnitus were at least likely as not a result of his military noise exposure. Affording the Veteran the benefit of all reasonable doubt, the Board is satisfied the evidence of record establishes his service-connected migraine headaches, bilateral hearing loss, and tinnitus arise from a common etiology, military noise exposure. Accordingly, these disabilities may be considered as one disability, and as such, from September 21, 2017, he meets the schedular criteria for a TDIU, one disability rated at 60 percent or more. 38 C.F.R. § 4.16(a)(2). After a thorough review of the record, and resolving all reasonable doubt in favor of the Veteran, the Board finds his service-connected disabilities, notably the migraine headaches, have been sufficiently disabling as to render him unable to maintain substantially gainful employment consistent with his education and occupational background. The record shows the Veteran was last employed in approximately April 2015 as a service manager with an auto repair company. His highest level of education attained was graduation from high school. Records furnished by the Social Security Administration (SSA) in July 2015 show that the Veteran reported having headaches three times a week with a duration of three to four hours each. Further, he stated that he was unable to perform activities of daily living during his migraine episodes. In his July 2015 Application for Increased Compensation Based on Unemployability, the Veteran stated that due to his migraine he had not been able to perform well in his previous jobs, noting that his migraines also caused difficulty in performing his daily activities. The Veteran’s employment history reflects he held several jobs from October 2014 to April 2015, lasting less than three months each and missing at least seven days of work due to illness in each job. In a July 2015 Request for Employment Information in Connection with Claim for Disability, the Veteran’s employer from January 2015 to March 2015 stated that the Veteran’s employment was terminated due to unsatisfactory performance. Similarly, the Veteran’s employer from March 2015 to April 2015 stated that the Veteran came in late, left early, or was absent from work in eight occasions due to migraine symptoms. VA treatment notes dated October 2015 indicate the Veteran’s headaches occurred originally ten to twelve times per month but had decreased to three to five per month with medication. However, because the ameliorative effects of medication do not appear to be contemplated by the rating criteria for migraine headaches under Diagnostic Code 8100, they should not be considered in the Veteran’s case. See 38 C.F.R. § 4.124a, Diagnostic Code 8100; see also Jones v. Shinseki, 26 Vet. App. 56 (2012). Moreover, subsequent VA treatment records reflect the severity of the Veteran’s migraine symptoms increased in frequency and severity, occurring about three times a week and lasting up to two days per episode. Notably, VA treatment notes dated December 2016 and October 2017 indicate the Veteran had been treated with twelve different medications, which had been moderately effective, but none of them seemed to be working at the time. The Veteran was afforded a VA examination in March 2015. On that occasion, the Veteran reported headaches occurring from two to three times each week, as well as associated symptoms including nausea, vomiting, sensitivity to light, sensitivity to sound, and changes in vision. The examiner stated the Veteran had “very frequent prostrating and prolonged attacks of migraine headache pain”. Further, the examiner opined the Veteran’s headache condition impacted his ability to work, causing him to miss work days and rendering him unable to concentrate during headaches. Similarly, an October 2015 VA examiner opined the Veteran would not be able to function in any sort of occupation during a migraine episode. The October 2015 examiner also stated the Veteran would be limited to work which could be adjusted to postponing or omitting the periods of work time lost with each headache. Further, the Board acknowledges the May 2017 SSA determination, which granted disability benefits effective February 1, 2016. Though the SSA adjudicator considered multiple “severe impairments”, the determination appears to be based mainly on the Veteran’s service-connected migraine headaches. The Veteran was found to have the residual functional capacity to perform medium work, as defined by the applicable SSA regulations; however, the adjudicator determined that due to the Veteran’s migraine headaches, he would be absent on average three or more workdays per month. In light of the foregoing, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities, notably his migraine headaches, are sufficiently severe as to render him unable to maintain any form of substantially gainful employment consistent with his education and occupational background. Accordingly, granting of a TDIU is in order. REASONS FOR REMAND Entitlement to an extraschedular TDIU prior to September 21, 2017 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. At the outset, the Board notes that for the period on appeal prior to September 21, 2017, the Veteran was service-connected for migraine headaches, rated as 50 percent disabling, and eczema, rated as 0 percent disabling. As noted above, a TDIU rating requires, as a threshold, a single disability rated as 60 percent disabling, or two or more disabilities with combined ratings of 70 percent, with at least one of those disabilities evaluated as 40 percent or more disabling. 38 C.F.R. § 4.16(a). Therefore, the minimum schedular requirements for TDIU benefits are not met for the period on appeal prior to September 21, 2017. Nevertheless, pursuant to 38 C.F.R. § 4.16(b), where the percentage requirements set forth in 38 C.F.R. § 4.16(a) are not met, a TDIU may be assigned on an extraschedular basis when the veteran is unable to secure and follow a substantially gainful occupation as a result of his or her service-connected disabilities. The Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Instead, the Board must refer any claim that meets the criteria for referral for consideration of entitlement to a TDIU on an extraschedular basis to the Director of Compensation Service. Id. As stated above, the record reflects the Veteran’s highest educational achievement is a high school diploma and he last worked in April 2015, when he was employed as a service manager with an auto repair company. The record reflects reports of incapacitating migraine headaches occurring approximately three times a week with a duration of up to four hours each. The Veteran contends that as result of his migraine symptoms he had not been able to perform well in his previous jobs, noting that he either resigned or was terminated due to these symptoms. The Board observes that two separate VA examiners indicated that the Veteran’s service-connected migraine headaches would affect his ability to obtain and maintain a substantially gainful occupation. A March 2015 VA examiner noted the Veteran had very frequent prostrating and prolonged attacks of migraine headache pain, which impacted his ability to work, causing him to miss work days and rendering him unable to concentrate during headaches. Further, in October 2015, another VA examiner opined the Veteran would not be able to function in any sort of occupation during a migraine episode, noting that the Veteran would be limited to work which could be adjusted to postponing or omitting the periods of work time lost with each headache. Based on the foregoing, the Board the claim must be referred to the Director of Compensation Service for extraschedular consideration. Further, as noted above, a May 2017 SSA determination indicates the Veteran was awarded disability benefits based on multiple diagnoses, including his service-connected migraine headaches. However, the records associated with the May 2017 SSA disability determination have not been associated with the Veteran’s file. The Board notes that records in the possession of the SSA could be supportive of the Veteran’s claim. Thus, the RO must take appropriate action to obtain those records. The matter is REMANDED for the following action: 1. Undertake appropriate development to obtain a copy of the records associated with the May 2017 SSA disability determination. 2. Then, pursuant to 38 C.F.R. § 4.16(b), refer the Veteran's claim to the Director of Compensation Service for consideration of entitlement to a TDIU prior to September 21, 2017, on an extraschedular basis. The electronic claims file must be made available to the Director of Compensation Service. 3. After the completion of the foregoing, readjudicate the claim. If the benefit sought remains denied, provide the Veteran and his representative with a Supplemental Statement of the Case, and then return the case to the Board. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Martinez, Associate Counsel