Citation Nr: 21000378 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 17-34 786 DATE: January 5, 2021 ORDER Entitlement to a total disability rating based on individual unemployability is granted. FINDING OF FACT The Veteran’s service-connected disabilities prevent him from securing or maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for a total disability rating based on individual unemployability have been met. 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from March 2008 to March 2014, to include service in Afghanistan. For his meritorious service, the Veteran was awarded the Army Commendation Medal, and the Combat Action Ribbon, among other decorations. This matter was raised by the Veteran during a hearing in November 2019 before the undersigned Veteran’s Law Judge. A transcript of the hearing is of record. This matter was previously remanded in December 2019 for additional development. It is now before the Board for further appellate review. 1. Entitlement to a total disability rating based on individual unemployability The Veteran is seeking entitlement to a total disability rating based on individual unemployability (TDIU). Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestead v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training and previous work experience in arriving at a conclusion, but not to age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. 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. §§ 3.340, 3.341, 4.16(a). Currently, the Veteran is service connected for migraines at a 50 percent rating, posttraumatic stress disorder (PTSD) at a 50 percent rating, and chronic thoracic strain at a 10 percent rating; for a total combined disability rating of 80 percent. Thus, the Veteran meets the schedular criteria for TDIU. The Veteran underwent a VA examination in February 2016 to determine the nature and severity of his migraines. During the examination, the Veteran reported experiencing migraines once a week with symptoms of nausea, and sensitivity to light and sound. The examiner determined that the Veteran had characteristic prostrating attacks, with less frequent attacks that were not productive of severe economic adaptability. The Veteran also underwent a VA examination for his PTSD in February 2016. The examiner determined that the Veteran had occupational and social impairment with reduced reliability and productivity. The Veteran reported symptoms of irritable behavior with angry outbursts; hypervigilance; exaggerated startle response; problems with concentration; sleep disturbance; depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; disturbances of motivation and mood; and difficulty adapting to stressful circumstances, including work or a work-like setting. VA treatment records from June 2019 document multiple PTSD symptoms experienced by the Veteran. Specifically, the Veteran reported difficulty sleeping; nightmares; hypervigilance; physiological stress; familial stress; short temperament; depression; and difficulty with memory loss. The Veteran also reported frequent irritable behavior, angry outbursts, and aggressive actions; frequently feeling distant or cut off from people; loss of interest in enjoyable activities; and frequently having strong negative feelings such as fear, horror, anger, guilt, or shame. The Veteran appeared for a hearing before the Board in November 2019. During his hearing, the Veteran testified to experiencing severe migraines at least 2 to 3 times a week. The Veteran reported vomiting, light and sound sensitivity, and extreme pain during his migraines with the shortest migraine lasting 8 hours and the longest lasting 2 days. He also stated that light is a significant trigger for his migraines, to include lights from computers, phones, and television screens. Further, the Veteran reported need to wear sunglasses at his last place of employment to reduce the chances of a migraine occurring. The Veteran’s migraines also prevent him from sleeping which the Veteran stated was already a difficult task due to his PTSD symptoms. The Veteran also testified that his migraines contribute to why he has not worked since 2017. Specifically, he reported leaving his job after his employer’s refusal to make accommodations for the Veteran’s migraines. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran is entitled to a TDIU. In this regard, the Veteran’s migraine symptoms are so severe that maintaining gainful employment would be very unlikely for the Veteran. He experiences prostrating attacks happening multiple times a week and lasting for at least 8 hours causing light and sound sensitivity as well as nausea and vomiting. The frequency and severity of the Veteran’s migraines would make it difficult to accomplish even sedentary tasks. Additionally, light is a significant trigger for the Veteran’s migraines which is necessary for most occupations. Under these circumstances, the Veteran is very limited in options for accommodations in any occupation. Moreover, the Veteran’s migraine symptoms are also present alongside his PTSD symptoms. VA treatment records document that the Veteran experiences symptoms of depression, anxiety, sleep impairment, irritability, angry outbursts, and aggressive behavior with little to no provocation. Additionally, the February 2016 VA examiner determined that the Veteran’s PTSD caused occupational and social impairment with reduced reliability and productivity. The Board finds that the severity of the Veteran’s PTSD symptoms, coupled with the frequency and severity of his migraine symptoms, preclude the Veteran from securing or maintaining gainful employment. To this point, the RO denied the Veteran’s claim for a TDIU for failure to submit a formal claim for that benefit. Given the work history described by the Veteran, the competent evidence regarding the severity of his service-connected disabilities, and the Veteran’s statements regarding the interplay between his service-connected disabilities and his ability to secure or follow a substantially gainful occupation, the Board finds sufficient evidence to grant the benefit even without a formal claim being filed. Thus, entitlement to a TDIU is warranted. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. K. Hall, Associate Counsel 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.