Citation Nr: 20005960 Decision Date: 01/23/20 Archive Date: 01/23/20 DOCKET NO. 17-12 262 DATE: January 23, 2020 ORDER Entitlement to a total disability rating based on individual unemployability on an extraschedular basis is granted. FINDING OF FACT The Veteran is unable to secure and follow a substantially gainful occupation due solely to service-connected disability. CONCLUSION OF LAW The criteria for TDIU on an extraschedular basis are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1968 to April 1970. A hearing was held before the undersigned veterans law judge in November 2019 in St. Louis, Missouri. The transcript is of record. During the hearing, the VLJ clarified the issues, asked if there was outstanding evidence and held the file open for the submission of evidence. Such actions comply with 38 C.F.R. § 3.103. Entitlement to a total disability rating based on individual unemployability on an extraschedular basis 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. See 38 C.F.R. § 4.16. A finding of total disability is appropriate “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” See 38 C.F.R. §§ 3.340 (a)(1), 4.15. TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is a sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16 (a). For the purposes of determining rating level, disabilities resulting from a common etiology or affecting a single body system are considered a single disability. 38 C.F.R. § 4.16 (a). Where these percentage requirements are not met, entitlement to the 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. See 38 C.F.R. § 4.16 (b). The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rating boards will refer to the Director of the Compensation Service for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16 (a). The Board may review the decision of the Director with regard to entitlement to a TDIU under 38 C.F.R. § 4.16 (b) and make an independent determination on this matter. See Anderson v. Shinseki, 22 Vet. App. 423 (2009). The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16 (b). Here, the Veteran is service-connected for a single disability, migraine headaches with cluster headaches, which are rated as 50 percent disabling. This does not meet the schedular requirement for TDIU. During adjudication of the claim, the RO obtained a determination from the Director. The Director found that an extraschedular TDIU was not warranted because the record did not show that the symptomatology reported was not wholly contemplated by the rating criteria. Further, the Director stated that the Veteran stopped working due to a back injury. The Veteran received VA examinations for his migraines in April 2013 and July 2014. At the April 2013 examination he reported severe disabling headaches six to eight times per month in good months and ten to fifteen times per month in bad months. He also reported nausea and visual disturbances during the headaches. The examiner stated that the Veteran would be unable to perform gainful employment due to having two headaches per week that require rest and the likelihood that working would increase the symptoms. At the July 2014 examination the Veteran reported severe headaches two to three times per week. He stated that they improve with use of Sumatriptan, which causes him to be drowsy and requires him to lie down. He reported sensitivity to light and sound as well as visual disturbances. The examiner stated that if the Veteran were currently employed his headaches would render him unemployable due to the frequency and severity of the headaches, as well as the side effects of the necessary medication. The Veteran testified at his hearing that he has severe headaches three to four times per week that are totally disabling. The Veteran’s application for TDIU indicates that he last worked in 2008 as a truck driver and that he stopped working due to a back injury. Other medical records, including SSA disability records, confirm that the Veteran originally stopped work due to his back, which is not service-connected. The Board finds that the preponderance of the evidence weighs in favor of a finding that the Veteran is unable to secure or follow substantially gainful employment due to his service-connected migraines alone. The Veteran has consistently reported that his migraines have worsened. Two VA examiners indicated that the current severity and medication required would be incompatible with employment. The Board has considered the Central Office determination as to extraschedular TDIU and disagrees with the Director’s opinion and findings. While the record is clear that the Veteran did not stop working in 2008 due to his migraines, the evidence is also clear that his migraines have significantly worsened to the point that they render him unable to work, without consideration of any other disability. TDIU on an extraschedular basis is therefore granted. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Creegan 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.