Citation Nr: 1808604 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 08-04 496 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Negron, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from April 1964 to July 1985. This matter comes before the Board of Veterans' Appeals (Board) from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. Jurisdiction was subsequently transferred to Montgomery, Alabama. In July 2015, the claim was brought before the Board and was denied. The Veteran, through his representative, appealed to the U.S. Court of Appeals for Veterans Claims (Court) in January 2016 and filed a Joint Motion for Remand (JMR) with the VA's office of General Counsel, representing the Secretary of Veterans Affairs, requesting the Court vacate the Board's decision and to remand the claim for readjudication. In January 2016, the Court granted the JMR. The claim was then brought before the Board in March 2016 and was remanded for further development. FINDING OF FACT The evidence of record does not show the Veteran is unable to obtain gainful employment due to his service-connected disabilities. CONCLUSION OF LAW The criteria for a TDIU rating have not been met. 38 U.S.C. §§ 1155, 5110(a), (b)(2) (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Legal Criteria The Board notes that it has reviewed all of the evidence in the Veteran's record, with an emphasis on the evidence that is relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence. See Gonzales v. West, 218 F, 3d, 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board will summarize the relevant evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. TDIU The Veteran contends that he is unemployable due to his service-connected disabilities, which include migraine headaches, tinnitus, osteoporosis/lumbar degenerative disc disease (DDD), right ear hearing loss, severe anemia, and residuals of multiple fractures of the nose. A total disability rating based upon individual unemployability may be assigned where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person 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, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one 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). However, it is the policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled, notwithstanding the fact that the assigned schedular ratings do not equal 60 percent for a single disability or 70 percent for a combined disability. 38 C.F.R. § 4.16(b). Thus, if a Veteran fails to meet the rating enunciated in 38 C.F.R. § 4.16(a), an extraschedular rating should be considered if the Veteran is unemployable due to a service-connected disability. 38 C.F.R. § 4.16(b). Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at whether a TDIU rating is warranted, but, the Veteran's age or the impairment caused by nonservice-connected disabilities may not be considered in such a determination. 38 C.F.R. §§ 3.321 (b), 3.340, 3.341, 4.16(b), 4.19. The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. at 363 (1993). Here, the Veteran's compensable service-connected disabilities are migraine headaches, rated as 50 percent disabling since August 2007; tinnitus, rated as 10 percent disabling since 1985; and lumbar degenerative disease/osteoporosis, rated as 10 percent disabling since April 2006. He also has noncompensable disabilities of right ear hearing loss, severe anemia, and residuals of multiple fractures of the nose. The combined disability rating for service-connected disabilities is 60 percent, and therefore the Veteran does not meet the schedular criteria of a combined rating of 70 percent or more for an award of TDIU. However, as mentioned above, the VA must consider an extraschedular rating of totally disabled where the Veteran is unable to secure and follow substantially gainful occupation by reason of a service-connected disability. See 38 C.F.R. § 4.16(b). The Board notes that although the Board is precluded from considering an extraschedular rating in the first instance, following the March 2016 remand, the RO referred the matter for consideration by the Director of Compensation and Pension Services, and thus, the Board may move forward with deciding the case on the merits. See Floyd v. Brown, 9 Vet. App. 88 (1996). The evidence of record shows that the Veteran's work history included working as a park ranger and natural resource specialist. In January 2008, the Veteran received an examination for his migraines. The Veteran reported that his migraines were so severe that they usually required a visit to a small clinic for a Demerol shot. He stated that he had used 210 sick days of leave in 2006 and about 160 of those hours would have been for migraines. The examiner noted that since the Veteran did have to leave work most of the time when he had a severe headache, there was a loss of function because the Veteran was unable to work through it. In a September 2008 VA examination for his anemia, the Veteran reported that his anemia occasionally caused fatigue and weakness. He stated that if he would stand too quickly he would feel dizzy. The Veteran had no palpitations or shortness of breath. The Veteran reported that he still had migraine headaches and noted that from 2006 to 2007 he had emergency room visits for them. In August 2008, the Veteran received a VA examination for his osteoporosis. The examiner noted that the Veteran was independent in conducting his daily living activities such as grooming, bathing, toileting, and dressing and waking; however, the Veteran reported that he quit working in June 2008 as a result of back pain. The Veteran reported he could sit and drive for 200 miles or 3 to 4 hours. In March 2009, the Veteran received a VA examination for his hearing loss and tinnitus. The examiner noted that the Veteran's hearing loss and tinnitus had no significant effects on his occupation or usual daily activities. In April 2009, the Veteran received an examination for his residuals of a nose fracture. The examiner provided that the Veteran had a traumatic nasal fracture with closed reduction 30 years prior. The examiner stated that the disease process primarily involved the nose and did not involve the sinus, pharynx, or larynx. The examiner then opined that the diagnosis would not impair the Veteran's ability to function in an occupational environment. In January 2011, the Veteran received a neurological VA examination. The Veteran reported he had doctor-prescribed bedrest or incapacitation in the last twelve months. The examiner noted the Veteran did not provide documentation of this bedrest though. The examiner noted under "impediment to usual occupation" that the Veteran was currently not working and reported he quit his job due to the number of absences. The Veteran stated he suffered from 4 to 5 episodes of migraines a week that typically lasted 8 hours long. He stated if an episode lasted longer than two days he would go to the doctor for Demerol. The Veteran stated he went to the Navy hospital once, but otherwise, would just go to small clinics. He stated his pain was frontal and throbbing, and severe on his left side. The Veteran reported that it aggravated his physical activity and would cause him to see flashes of light or blurred vision. The Veteran stated that the level of pain was an 8. He stated that his current treatment was Lortab at the beginning of headaches and Demerol and Phenergan for the worst ones. He stated that when it became a migraine, he had no level of activity and needed to lie down. The examiner diagnosed the Veteran with migraine headaches, with no residuals and mild limitations. The examiner stated the Veteran only provided one note of an episode from January 2011 which showed he was treated at an ambulatory clinic. The note showed the Veteran was seen at 1:30 a.m., but did not note time of arrival or discharge. The examiner stated it appeared the Veteran was released immediately after treatment with a diagnosis of migraine-like headaches. The examiner stated a cause of concern was the fact that despite the Veteran's claims of increase of headache numbers and severity, there was no referral to a neurologist by his physician. In an April 2011 audiological VA examination, the examiner noted that the Veteran's hearing loss had significant effects on occupation. The examiner provided that the Veteran reported difficulty understanding speech in conversation and while watching television. The examiner stated there were no effects on usual daily activities. In September 2012, the Veteran received another VA examination for his hearing loss and tinnitus. The Veteran reported that his hearing loss impacted his ordinary daily life conditions. The examiner then opined that the Veteran's "hearing loss and tinnitus alone should not be a barrier to a wide range of employment settings." The examiner further rationalized that individuals with a similar degree of hearing loss and tinnitus, or worse, function well in many occupational settings. The examiner then stated that the hearing loss and tinnitus would cause some problems depending on vocation, such as working in very noisy environments, environments which would require him to often use non face-to-face communications equipment, or in jobs which require a great deal of attention to high pitched sounds. The examiner elaborated that the opinion was just for the Veteran's hearing loss and tinnitus effects on employment and no other disabilities. The examiner lastly opined that the Veteran's hearing loss and tinnitus alone would not render him unable to secure or follow a substantially gainful occupation. His hearing loss and tinnitus may limit the types of occupation the Veteran could hold and may experience difficulty hearing sounds and understanding speech, especially in the presence of background noise, without visual cues. In October 2012, the Veteran also received a general VA examination. The Veteran reported that he occasionally helped in household chores but was careful to not hurt his back or fall when lifting things. The Veteran still drove to the grocery store, church, and doctors' appointments. He would mow his 2 acres of property using a riding mower. He watched television, read books, and occasionally used the computer. The Veteran stated he would rest for a day or two when he got migraine attacks. He usually went to bed around 10 p.m. and got an average of 6 to 7 hours of sleep. The examiner provided that the Veteran's migraine headaches caused mild functional limitation. The examiner noted that the Veteran's typical headache pain lasted 1 to 2 days, and he would experience prostrating attacks of migraine headache pain once in 2 months. The examiner then opined that the Veteran was capable of sedentary to light duty employment based on his migraine disability alone or in combination with his lumbar DDD and osteoporosis, if he so chose to, and without regard for all other factors such as age, level of education, and prior work history. The examiner also stated that the Veteran's migraine disability did not prevent him from securing or following substantially gainful occupation. The examiner further opined that the Veteran's lumbar DDD and osteoporosis provided no functional limitation and allowed the Veteran to partake in sedentary to light duty employment. In November 2016, the October 2012 examiner provided an addendum opinion. The examiner opined that based on the cumulative effects of all the Veteran's service-connected disabilities of migraine headaches, hearing loss, tinnitus, lumbar DDD/osteoporosis, severe anemia, and residuals of multiple fractures of the nose, the Veteran was capable of sedentary to light duty employment. Following the March 2016 remand, the Veteran's claim was referred to the Director of Compensation and Pension Services for consideration of the Veteran's TDIU claim on an extraschedular basis. In December 2017, the Director provided an opinion. The Director noted a review of all available records. The Director found that available treatment records and examination reports do not show any hospitalizations, emergency room visits or surgical procedures for any service-connected conditions. The Director notes that the most recent examination opinions indicate that the Veteran can perform light or sedentary employment. The Director provided that it is the policy of the Department of VA that all Veterans who are unable to secure and follow substantial gainful occupation by reason of service connected disabilities shall be rated totally disabled. The Director then determined that entitlement to individual unemployability was not established for any time period. The Board notes the Veteran has provided several private medical records from 2009 through 2011 showing various small clinic visits for his migraine headaches. The Board further notes that these records do show one emergency room visit in September 2009 for migraines. However, the Veteran was treated and discharged within a few hours and it was noted his condition was considered improved at discharge. None of these visits showed the Veteran needed to be bedridden for a certain amount of time or required an overnight visit. The Board acknowledges that the Veteran's most debilitating service-connected disability is his migraine headaches. The Board recognizes that the Veteran retired early due to frequently having to take days off of work because of his migraine pain. However, the Board notes that such issues are considered in his 50 percent disability rating for migraines, which encompasses a disability picture of "very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability." See 38 C.F.R. § 4.124a, Diagnostic Code 8100. Thus, the economic hardship the Veteran experienced due to his migraines was considered under the Diagnostic Code and therefore, does not warrant extraschedular consideration. The Board also acknowledges that the Veteran has stated that the cumulative effect of all his service-connected disabilities has prevented him from keeping employment. However, the evidence of record does not show his service-connected disabilities have caused him to be unemployable or to be considered totally disabled. The Veteran was able to work until 2008, and although he retired early due to needing to take excessive leave from migraine pain, it was noted he was already eligible to retire. Additionally, as noted above, the economic hardship of needing to take leave was already considered in the assigned Diagnostic Code for his migraine headaches. Further, the Veteran has reported no difficulty completing his daily activities. The Veteran is able to get out of bed, dress himself, make breakfast, help with chores, and mow the lawn all on his own. In fact, the Veteran has reported normal daily activities throughout the years, including being able to drive himself to and from doctor appointments, church, and the grocery store. Moreover, the medical evidence of record has consistently shown that all of the Veteran's service-connected disabilities, outside of his migraine headaches, have had minimal to mild limitation effects on his occupational function. Lastly, the Board has considered the December 2006 private opinion submitted by the Veteran, which opined that the Veteran's migraine headaches and use of narcotic medications for pain, limited his ability to work as a park ranger due to needing to operate vehicles. However, the Board notes that the Veteran was able to continue working for almost two years after this opinion. Further, as mentioned above, the Veteran reported being able to drive himself to doctors' appointments, church, and the grocery store. Therefore, the probative evidence of record shows that the Veteran is capable of performing the acts required in obtaining and maintaining a substantially gainful occupation, especially those with minimal responsibility and those that are not in a noisy environment. The evidence of record further does not show the Veteran's service-connected disabilities render him totally disabled, as his daily routine has not been adversely affected. Further, as previously stated, the evidence does not show that the Veteran's service-connected migraine headaches, lumbar DDD/osteoporosis, residuals of multiple nose fractures, and hearing loss and tinnitus make him incapable of performing the physical and mental acts required by employment in which there is limited physical activity and/or minimal responsibility, and environments that are not noisy, do not require him to often use non face-to-face communications equipment, or require a great deal of attention to high pitched sounds. Thus, based on this evidence, the Board concludes that the Veteran has not been rendered unemployable due to his service-connected disabilities. When considering the Veteran's employment background, as well as the medical evidence of record, the Board finds a grant of TDIU is not warranted. ORDER Entitlement to a TDIU is denied. ____________________________________________ JENNIFER HWA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs