Citation Nr: 18156765 Decision Date: 12/10/18 Archive Date: 12/10/18 DOCKET NO. 09-18 195 DATE: December 10, 2018 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, is granted. FINDING OF FACT The Veteran’s service-connected disabilities preclude him from securing or following substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1986 to April 1989, with subsequent periods with the Navy Reserves. In April 2015, the issue was before the Board and was remanded for further development. The Board finds that there has not been substantial compliance with the remand directives, as all the requested development were not completed before being returned to the Board. Stegall v. West, 11 Vet. App. 268 (1998). Nonetheless, as the Board is herein granting the appeal, there is no prejudice to the Veteran. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, is granted Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a)(1) (2018). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability: that is, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. In such an instance, if there is only one service-connected disability, it must be rated at 60 percent or more. 38 C.F.R. § 4.16 (a) (2018). Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran’s advancing age. 38 C.F.R. 3.341 (a), 4.19 (2017); Van Hoose v. Brown, 4 Vet. App. 361 (1993). When the Board conducts a TDIU analysis, it must consider the Veteran’s education, training, and work history. Pederson v. McDonald, 27 Vet. App. 276 (2015). The Veteran asserts that he is unemployed due to his service-connected migraine headaches and heart conditions. The record shows that the Veteran has met the criteria for a TDIU during the entire appeal period. 38 C.F.R. § 4.16 (a) (2018). In an October 2015 dated Veterans Application for Compensation Based on Unemployability (VA Form 8940), the Veteran indicated having had four years of college and worked as an Environmental Safety Manager from May 2004 to May 2014. He also indicated that before becoming too disabled to work, he had industrial hygiene training from 1991 to 2001, and environmental training from 2002 to 2004. After becoming too disabled to work, in January 2014, he had no other training. The record contains two letters, dated in September 2015 and March 2016, from his private physician, Dr. C. V. C., Jr., who states that the Veteran has been unable to work since January 2014 and “is still under Doctor’s care” because of the “severity of his conditions.” The Veteran was afforded various VA Disability Benefits Questionnaires in 2015 and 2016 for his heart and headache conditions. During the June 2015 and January 2016 examinations, the examiners concluded that the Veteran’s heart conditions impacted his ability to work and he “must avoid strenuous physical duties to prevent angina.” During both of his December 2015 and January 2016 VA headache examinations, the examiners found that the Veteran’s headache disability impacted his ability to work and when the migraines are severe, he must rest. A December 2015 Request for Employment Information in Connection with Claim for Disability Benefits (VA Form 21-4192), completed by the Veteran’s former employer is of record. It indicates that the Veteran was terminated in May 2014, but his last day worked was February 28, 2014. It also indicates that his termination was a result of his “health issues.” In a previous Separation Notice provided to the Department of Labor (DOL), the employer noted that the Veteran was terminated from their employ because he “[d]id not return from leave.” In furtherance of his argument, the Veteran in June 2016 provided a statement that his migraine headaches are “so severe that he is in bed [five] days out of the week from 14 to 24 hours per day” and he has not worked since January 2014. Lastly, in March 2017, the Social Security Administration (SSA) deemed the Veteran disabled as of January 10, 2014, finding that his severe impairments, including coronary artery disease, myocardial infarction, and migraine headaches have more than a minimal effect on his ability to perform basic work-related activities. Based on the evidence presented above, including the competent and credible lay statements provided by the Veteran, the various VA DBQs, and the opinions provided by his private physician, Dr. C. V. C., the Board finds that his service-connected migraine headaches and heart conditions preclude substantially gainful employment. The ultimate responsibility for a TDIU determination is a factual rather than a medical question and is an adjudicative determination made by the Board or the AOJ. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Accordingly, resolving all doubt in the Veteran’s favor, the Board finds that entitlement to TDIU is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Stevens, Associate Counsel