Citation Nr: 19193003 Decision Date: 12/12/19 Archive Date: 12/11/19 DOCKET NO. 14-13 862 DATE: December 12, 2019 ORDER An extraschedular total disability rating based on individual unemployability due to service-connected disability (TDIU), under 38 C.F.R. § 4.16(b), is granted. FINDING OF FACT The Veteran's sole service-connected disability, migraine headaches, rated 50 percent, is shown to result in functional impairment that precludes him from maintaining substantially gainful employment. CONCLUSION OF LAW The schedular requirements for a TDIU rating are not met; however, an extraschedular TDIU rating is warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16(a)(b). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from October 1993 to September 1996. This matter is before the Board on appeal from a September 2011 rating decision. Entitlement to a TDIU rating, on an extraschedular basis, is granted. A TDIU 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 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 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran contends that he is unable to maintain substantially gainful employment due to his sole service-connected disability, migraine headaches, rated 50 percent. The sole 50 percent rating does not meet the 38 C.F.R. § 4.16(a) schedular rating requirements for a TDIU rating. However, where the percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when a veteran is nonetheless unable to maintain a substantially gainful occupation due to service-connected disability. 38 C.F.R. § 4.16(b). Here, the Board finds that the evidence demonstrates that the Veteran is unable to maintain a substantially gainful occupation due to his service-connected migraine headaches. On April 2010 vocational rehabilitation evaluation, the Veteran reported severe migraine headaches (that occur at least two to three times a week and last all day long) which require him to isolate himself and recline in a dark quiet room. The counselor opined that the Veteran’s occupation as a non-destructive materials examiner/tester is a highly skilled occupation that requires standing and walking for extended periods, lifting up to 25 pounds frequently and 50 pounds occasionally, and frequent reaching and handling. The counselor noted that the Veteran had not developed or acquired skills transferable to sedentary work. The counselor noted the Veteran’s 2007 on-the-job neck, back, right shoulder, right arm, right elbow, right hand and wrist, and right foot injuries, as well as his severe migraine headaches, and opined that he is not capable of returning to the same occupational duty held prior to the injury. The counselor opined that the Veteran is not capable of substantial gainful work activity in the competitive labor market. On June 2010 VA examination, the Veteran reported that when his migraine headaches occur, he has to stay in bed and is unable to do anything. He reported experiencing headaches lasting for a day; symptoms included sensitivity to light and eye pain. He reported that the symptoms occurred as often as two to three times a week, with each occurrence lasting all day, and during flare-ups he must stay in bed until the headache goes away. He reported having difficulty concentrating and doing daily tasks and activities when the headaches occur. The examiner opined that the effect of the condition on the Veteran’s usual occupation is severe, but noted that he is medically retired due to other conditions. A January 2011 Social Security Administration (SSA) decision determined that the Veteran has been disabled from September 2008 due to the following severe impairments: chronic pain and stiffness of the lumbar spinal region secondary to degenerative disc disease; chronic pain and stiffness of the neck, shoulders, and upper back secondary to residual of a 2007 work injury and degenerative disc disease of the cervical spine; cumulative chemical exposure resulting in chronic headaches, kinetic tremor, and decreased mental capacities; thyroid disease; mild right carpal tunnel syndrome; mild right ulnar neuropathy at the elbow; cognitive disorder not otherwise specified; personality changes of unknown etiology; and depression. On April 2011 VA examination, the Veteran reported headaches with light and sound sensitivity. He reported that when the headaches occur, he has to stay in bed and is unable to do anything. He reported experiencing headaches on average twice per day, and they last for one hour, with a pain severity of 7/10. He reported treatment with Sumatriptan. The examiner opined that the functional impairments caused by the Veteran’s migraines with loss of concentration and effects of the impairments on his ability to perform physical and sedentary activities of daily activity and employment are migraine headaches, difficulty with concentration and memory, tardive dyskinesia, and disorientation to person, place, and time. The examiner opined that the effect of the condition on the Veteran’s usual occupation is that he has to go to bed when he has a migraine, which is almost daily. In his June 2011 TDIU application, the Veteran stated that he is prevented from securing or following any substantially gainful occupation by neurological disorders, organic brain disorder, degenerative disc disease of the back and neck, bilateral carpal tunnel syndrome, hypothyroidism, upper neck issues, right shoulder pain, right wrist pain, leg pain, and chronic hearing problems and vision problems. He stated that he last worked full time as a nondestructive inspector in September 2008, his disability affected his full-time employment in September 2008, and he became too disabled to work in January 2009. He stated that he left his last job because of his disability and receives/expects to receive disability retirement benefits and workers compensation benefits. He has a college degree with additional education in aeronautics. He stated that he has possible neurological or organic brain impairment due to possible toxic exposures that, combined with his physical impairments and his limited communication in English, prohibit him from working. In an August 2014 Vocational Analysis Report, the consultant stated that he was asked to assume that the Veteran would miss four hours of work in every two week period because of migraine headaches that would occur on an unpredictable basis, and that he was asked for his opinion as a vocational expert as to what effect this would have on the Veteran’s ability to secure or follow a substantially gainful occupation. He noted that the Veteran’s past relevant work is as a nondestructive tester, in addition to being a light vehicle mechanic in service. The consultant opined that an individual who misses up to four hours of work in every two-week period, at unpredictable times, is unable to maintain a substantially gainful occupation. He opined that absenteeism often harms a worker’s capacity to retain gainful work when it is unpredictable in nature, not allowing the employer to accommodate or replace the worker’s absences. He stated that missing four hours of work in every two-week period would be equivalent to missing more than one day of work every month, and opined that employers will not tolerate workers who, at unpredictable times, miss at least one day of work every month, with the sole exception of if the employee has unique or highly marketable skills; he opined that as a nondestructive tester and light vehicle mechanic, the Veteran has neither unique nor highly marketable job skills. The consultant opined that the Veteran’s absences would be unpredictable because the timing of his headaches is unpredictable, and this further impairs his ability to follow a substantially gainful occupation. He cited studies from private human resources firms to support his opinion that an employee who misses 13 days of work per year without advance notice will be terminated from his job and, therefore, the Veteran cannot follow a substantially gainful occupation if one assumes he will miss four hours of work in every two-week period. In a September 2014 statement, the Veteran related that he had kept a record of his headaches for the period of July 18, 2014 through August 20, 2014, during which time he had about four severe migraine headaches in a five week period. He stated that this is less often than he used to have migraines, noting that during the spring and summer of 2012 he had one or two migraine headaches every week. He stated that since filing his claim in February 2011 until the summer of 2014, he almost always had at least one migraine headache every week. He stated that he must lie down in a quiet room and turn off all of the lights during a migraine, and the severe pain usually lasts four to five hours; afterward, he is very tired and has no energy to do anything but rest and try to recover. Thereafter, the AOJ referred the instant case to the Director, VA Compensation Service, for consideration of an extraschedular TDIU, with the recommendation that the evidence was in support of the Veteran’s claim. Specifically, the recommendation was that the Veteran be granted a TDIU rating on an extraschedular basis due to his service-connected disability of migraines, effective January 6, 2010, the date on which his original service connection claim for migraines was received. In September 2017, the Director determined that the available evidence did not support the Veteran's contentions that his service-connected disability alone prevented all types of gainful activity, and that an extraschedular TDIU was denied. The Director noted that service connection has been established for one condition, migraine headaches, at 50 percent disabling; the Veteran reportedly worked on an Air Force base until 2009; he was injured on the job in 2007, suffering neck, right shoulder, and right arm injuries; and he worked intermittently following the injury before medically retiring due to the injury in 2009. The Director cited the August 2014 vocational analysis, noting that the conclusions therein were based on an assumption put forth by the attorney who ordered the assessment. The Director cited an April 2010 vocational evaluation in which the examiner concluded that the Veteran was totally and permanently disabled due to hypothyroidism and the residual back, neck, and right shoulder and arm disabilities that resulted from his on-the-job injury in 2007. The Director cited the SSA decision granting disability benefits. The Director cited outpatient treatment records from 2007 to the present showing frequent medical treatment visits due to hypothyroidism, and neck, shoulder, and back problems, with occasional reports of migraines. The Director determined that the records do not show hospitalizations, emergency room visits, or intensive therapy to treat migraines, and the majority of the available medical evidence reveals occasional complaints of migraines. The Director opined that the evidence does not show that the medication to treat migraines was not effective. The Director stated that the Veteran did not submit any documentation showing missed time at work or inability to work due to migraines, and noted that the available evidence shows the Veteran stopped working due to the injuries incurred in 2007. The Director opined that no unusual or exceptional disability pattern has been demonstrated that would render application of the regular rating criteria as impractical, and the evidentiary record does not demonstrate that the symptomatology consistently associated with the migraines is not wholly contemplated by the criteria utilized to assign the 50 percent rating from 2010 to the present. The Director noted that the Veteran’s last employment ended due to disabilities caused by the on-the-job accident and opined that entitlement to a TDIU rating on an extraschedular basis is not established. The Board has considered the determination by the Director, but notes that it did not discuss the VA medical opinions of June 2010 and April 2011 regarding the severity of the Veteran’s migraines disability and their impact on his usual occupation. The Board deems those opinions to have substantial probative value in support of this claim. Further, the Veteran has submitted additional evidence since the Director’s September 2017 determination. In an October 2019 statement, he stated that for the last several years, he has had about two migraine headaches per week, each of which lasts at least five or six hours and causes him to need to lie down in a dark and quiet room. He stated that most of his migraine headaches last between five to six hours and one day, but he also has migraine headaches that last for several days up to one week. He stated that no treatment or medication has relieved his headaches, therefore he has not sought care in recent years for the migraines, especially since he has been undergoing treatment for prostate cancer since 2018. In an October 2019 Disability Benefits Questionnaire (DBQ) and medical opinion, neurologist Dr. P. opined that the Veteran cannot be reliably employed due to unpredictable incapacitating migraines at least 2 days a week, with severe pain and other disabling symptoms lasting for at least 5 to 6 hours per migraine. He opined that it is highly likely that between January 2010 through the present, the Veteran’s migraines occurred at least once every two weeks and incapacitated him for at least four to five hours per migraine. Dr. P. cited the August 2014 vocational consultant who opined that an individual who misses up to four hours of work in every two-week period, at unpredictable times, is unable to maintain a substantially gainful occupation. Dr. P. opined, therefore, that the Veteran cannot be reliably employed since at least 2010; that migraines occurred unpredictably every two weeks or more and incapacitated him for at least four hours per episode; and that in the last few years, the migraines occurred unpredictably at least two days per week, with severe pain and other disabling symptoms lasting for at least five to six hours per migraine, and sometimes up to one week. Dr. P. noted that the Veteran’s disabling migraine symptoms include light and sound sensitivity; pain affecting his concentration, focus, and memory, and worsening with any physical or mental activity, rendering him unable to do anything during the headache; and the need to take medications and lie down in a dark quiet place to try to sleep. The Board has considered the Veteran's educational and occupational background, in addition to the medical evidence of his functional capacity due to the service-connected migraine disability. Regarding his employment history, he was a light vehicle mechanic during service, and after service he worked for a long period as a nondestructive materials tester. He was last employed in 2009, when he medically retired due to the injuries he incurred on the job in 2007. However, he contends, and the medical opinions of record support, that he would be unable to secure or follow a substantially gainful occupation solely on the basis of his service-connected migraine disability. In short, despite having only a 50 percent rating for his sole service-connected disability, the Veteran's educational/occupational background and his current medical record constitute persuasive evidence that his service-connected migraine symptoms preclude him from engaging in regular substantially employment. The Board does not question that the Veteran’s nonservice-connected disabilities (including due to injuries sustained on-the-job in 2007) may additionally (equally) render him unemployable (as the Director of Compensation has found), but finds that even disregarding the effects of the nonservice-connected disabilities, by virtue of his migraines alone, the Veteran is rendered unemployable for regular employment consistent with his occupational experience. Accordingly, the evidence supports the award of a TDIU rating on an extraschedular basis. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Schechner The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.