Citation Nr: 18158118 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 06-20 250 DATE: December 14, 2018 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disorders is denied. FINDINGS OF FACT 1. The Veteran is service connected for headaches, rated 50 percent disabling; and for pseudofolliculitis barbae rated noncompensable. His combined rating is 50 percent. 2. The preponderance of the evidence is against finding that the Veteran’s service-connected disabilities alone are so severe as to preclude all forms of substantially gainful employment. CONCLUSION OF LAW The criteria for assignment of a total disability rating based on individual unemployability due to service-connected disorders have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1969 to February 1973. The appellant contends that his service-connected disabilities preclude him from obtaining or maintaining any form of gainful employment. The Veteran was granted entitlement to service connection for headaches and a noncompensable rating in a March 1983 decision. The Veteran submitted a claim for increase which was received on June 21, 2004. That claim was denied and the Veteran appealed. The claim of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders presently before the Board was inferred in connection with the claim for an increased rating for headaches, in accordance with the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009). VA will grant a total disability evaluation based on individual unemployability due to service connected disorders when the evidence shows that a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. A total rating for compensation purposes 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 service-connected 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. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a).   Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran’s background including his or her employment and educational history. 38 C.F.R. §4.16 (b). The Board does not have the authority to assign an extraschedular total disability rating based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). For a veteran to prevail on a claim for a total disability evaluation based on individual unemployability due to service connected disorders, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question for the Board is whether a veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See 38 C.F.R. § 4.16 (a); VanHoose v. Brown, 4 Vet. App. 361 (1993). In determining whether an appellant is entitled to a total disability evaluation based on individual unemployability, neither his nonservice-connected disabilities nor advancing age may be considered. 38 C.F.R. § 4.19. In this case, the Veteran does not meet the threshold requirements for a total disability rating based on individual unemployability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran is currently service-connected for headaches, rated 50 percent disabling, and for pseudofolliculitis barbae rated noncompensable. These disabilities result in a combined rating of 50 percent. 38 C.F.R. § 4.25. Therefore, the threshold percentage requirements for an award of a total disability rating based on individual unemployability are not met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Nevertheless, the Board will consider whether the evidence warrants referral to the appropriate VA officials for entitlement to a total disability rating for compensation purposes based on individual unemployability on an extraschedular basis. 38 C.F.R. §4.16 (b); Bowling, 15 Vet. App. at 1. After a complete review of the record, the Board finds that the preponderance of the evidence is against finding that the Veteran is unable to obtain or maintain employment due to his service-connected disabilities alone. Hence, referral for consideration of entitlement to a total disability evaluation on an extraschedular basis is not warranted. The Veteran has consistently reported that his headaches occur at least daily, and are debilitating in severity. In a February 2005 statement, the Veteran related that on certain days he could not get out of bed, and could not work due to his headache disorder. At his March 2012 Board hearing, the Veteran stated that he had to lay down with a towel over his head until the headaches went away, and that they could last four to eight hours. The Veteran further stated that his headaches impacted employment by causing him to become sarcastic and obnoxious toward other people. At a January 2005 VA examination, the Veteran reported having approximately one headache per day lasting one to four hours. During such a headache, the Veteran reported that he needed to go to a dark room to lie down, and was unable to do anything. The examiner noted that the Veteran was not employed. In January 2008, an examiner noted complaints of headaches occurring on average four times per day, lasting four hours. The Veteran reported that he was not able to do anything during these episodes. In November 2013 a VA examiner found that the Veteran suffered very frequent prostrating and prolonged non-migraine headache pain. The examiner opined that the headaches would limit the Veteran to a “low stress” employment environment. Finally, in July 2018 a VA examiner reported that the Veteran experienced severe headaches that caused him to go into a dark room. The examiner opined that the functional impact of the Veteran’s headaches was that he would need “to rest sometimes” and would have “difficulty concentrating during episodes” but would otherwise be “fine during asymptomatic episodes.” In sum, the medical evidence of record shows that the Veteran would require a low stress environment where he would need to be permitted to rest at times. The medical evidence, however, preponderates against finding that the Veteran is totally precluded from all forms of substantially gainful employment. The Board has considered the Veteran’s lay statements that his headaches occur at least every day, that they prevent any activity during episodes, and that they prevent him from obtaining or maintaining gainful employment. However, the degree to which specific symptoms and functional impairment are attributable to specific disabilities is a medical question which is complex in nature. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). Particularly as the Veteran suffers from functional impairment resulting from both service-connected and nonservice-connected disorders, the Board assigns greater probative weight to the medical evidence of record. While the question of employability is ultimately one for the Board, as the fact finder, to decide, the medical opinions of record provide highly persuasive evidence regarding whether the Veteran’s symptoms cause significant occupational impairment. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Here, the medical evidence indicates that the Veteran had some occupational impairment caused by his headaches, but no medical examiner of record has opined that the Veteran’s headaches, alone, or in combination with his pseudofolliculitis barbae, completely prevent the kind of activities required for gainful employment. The Board acknowledges that the Veteran was found to be disabled for the purpose of Social Security disability benefits. Medical records received from the Social Security Administration indicate that such decision was based in significant part on the Veteran’s nonservice-connected disorders, to include cardiomyopathy, discogenic and degenerative disorders affecting the back, and paranoid schizophrenia and other psychotic disorders. As such, the findings of the Social Security Administration do not support the conclusion that the Veteran’s service-connected disabilities alone preclude all forms of substantially gainful employment. The Board also acknowledges that the Veteran’s July 2018 application for individual unemployability indicates that he last worked in 1987. Due to this long absence from the labor market the Veteran may lack certain skills or education necessary to engage in skilled labor. However, the medical evidence of record does not indicate that the Veteran’s service-connected disorders would preclude him from participating in unskilled employment which would be commensurate with his experience. Indeed, the Veteran reported that he had four years of college education. Therefore, despite the Veteran’s long absence from the labor market, the evidence of record preponderates against finding that his service-connected disabilities alone would preclude all form of substantially gainful employment commensurate with his education and experience. The Veteran has not argued, and the record does not reflect that his pseudofolliculitis barbae would, alone, or taken together with his service-connected headaches prevent him from obtaining or maintaining substantially gainful employment. Accordingly, the Board finds, based on the preponderance of the evidence of record, that the Veteran’s service-connected disabilities do not preclude him from obtaining and maintaining substantially gainful employment consistent with his education and experience. Thus, an unusual or exceptional circumstance to warrant referral for extraschedular consideration of a total disability rating based on the Veteran’s service-connected disabilities is not presented here. The claim of   entitlement to a total disability evaluation based on individual unemployability due to service connected disorders is denied. See 38 C.F.R. §§ 3.340, 3.341, 4.16. DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Paul J. Bametzreider, Associate Counsel