Citation Nr: 21000695 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 08-38 918 DATE: January 6, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted prior to February 17, 2016. FINDING OF FACT Throughout the rating period prior to February 17, 2016, the Veteran had a combined disability rating of at least 70 percent with one disability rated as at least 40 percent disabling, and she was rendered unable to obtain or maintain substantially gainful employment as a result of her service-connected disabilities. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for a TDIU have been met for the entire rating period prior to February 17, 2016. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the Appellant in this case, had active service from January 1998 to July 1998. This matter comes before the Board of Veterans’ Appeals (BVA or Board) from a September 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. Historically, in March 2013, the Veteran testified before a Veterans Law Judge (VLJ) regarding various appeals for service connection and increased ratings. During that hearing, she stated that she was unable to work due to her service-connected disabilities. Subsequently, in a June 2013 decision, the Board found that the issue of entitlement to a TDIU had been raised by the record in the course of the Veteran’s appeal under Rice v. Shinseki, 22 Vet. App. 47 (2009), and remanded the issue for development by the RO. The issue of entitlement to a TDIU was again remanded by the Board in December 2018 in order to allow the Veteran the opportunity to submit a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, and for the RO, regardless of whether the Veteran provided that form, to readjudicate the TDIU claim based on the other evidence of record. The Board is cognizant that the Veteran has not submitted a completed VA Form 21-8940 or otherwise provided the information requested in that form, and that, ordinarily, such claims would be considered abandoned pursuant to 38 C.F.R. § 3.158(a); however, as discussed below, there is sufficient evidence of record on which to make a determination in this case. As noted in the December 2018 remand, effective February 17, 2016, the Veteran is in receipt of a 100 percent combined schedular rating as well as special monthly compensation under the provisions of 38 U.S.C. § 1114(s) in light of her service-connected anxiety disorder, which is evaluated as 100 percent disabling from February 17, 2016, and additional service-connected disabilities independently ratable at 60 percent or more from that date. Therefore, the issue of entitlement to a TDIU from February 17, 2016 is rendered moot, as the Veteran is in receipt of the maximum available benefits from that date. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008). However, the issue of entitlement to a TDIU prior to that date remains on appeal, as it is part and parcel of the claims filed on November 9, 2006. For the reasons discussed below, the Board finds that a TDIU is warranted for the entire rating period prior to February 17, 2016. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). The central inquiry is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to his or her level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Substantially gainful employment is work that is more than marginal, which permits the individual to earn a “living wage.” See Moore v. Derwinski, 1 Vet. App. 356 (1991). In reaching a determination of TDIU, it is necessary that the record reflect some factor which takes his case outside the norm with respect to a similar level of disability under the rating schedule. 38 C.F.R. §§ 4.1, 4.15; Van Hoose, 4 Vet. App. 361. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether or not the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Beaty v. Brown, 6 Vet. App. 532, 538 (1994). In this case, the Veteran’s service-connected disabilities (as in effect prior to February 17, 2016) included anxiety disorder, evaluated as 50 percent disabling; migraine headaches, evaluated as 50 percent disabling; status post stress fracture of the left proximal tibia, evaluated as 10 percent disabling; status post stress fracture of the right proximal tibia, evaluated as 10 percent disabling; right hip bursitis, evaluated as 10 percent disabling; left ankle sprain, evaluated as 10 percent disabling; and right ankle sprain, evaluated as 10 percent disabling. For the entire rating period on appeal, the Board finds that the combined schedular rating criteria for consideration of TDIU under 38 C.F.R. § 4.16(a) are met because, prior to February 17, 2016, she had a combined disability rating of 90 percent with a single service-connected disability rated at at least 40 percent. Moreover, after a review of all the evidence, the Board concludes that the evidence is at least in equipoise as to whether the Veteran was unable to secure or follow substantially gainful employment due to her service-connected disabilities prior to February 17, 2016. The evidence in favor of the claim for TDIU includes an April 2007 application for Vocational Rehabilitation in which the Veteran indicated that she still worked at Barnes and Noble, but that her migraines and leg disabilities reduced her ability to perform her job. At an October 2007 VA examination, the Veteran reported that she was currently employed at the cafe at Barnes and Noble, and that her employment made her migraines worse. She stated that the headaches were usually not disabling, but that sometimes they were so bad that she had to stop working and go home and lay down. The examiner noted that she had been employed on a part-time basis at Barnes and Noble for 5 to 10 years and that she reported losing 1 to 2 weeks of work in the last year due to her migraines, concluding that her migraines had a significant effect on her occupation. In her October 2007 notice of disagreement, the Veteran stated that she was losing at least one day a week from work, or 6 to 8 days per month, due to her migraine headaches. An April 2008 Chapter 31 Needs Assessment conducted as part of the Veteran’s application for Vocational Rehabilitation indicates that the Veteran was employed at Barnes and Noble from 2003 until March 2008, when she resigned due to her migraines and reported inability to work. The vocational counselor conducting the assessment noted that she had been unemployed since March 2008 due to severe migraine headaches. At this time, in a best-case scenario, the counselor opined that she may be best suitable for casual, part-time employment, owing to her frequent headaches. Assuming medical management of her migraines, she could return to several of her prior jobs in the bookstore business. She also had some transferable skills. However, based on her current migraine severity, the counselor stated she was completely disabled 6 to 12 days per month. It was the evaluator’s opinion that she was best suited for casual, part-time employment until she was able to gain control of her migraine headaches. A May 2008 Vocational Rehabilitation Evaluation stated that it had been determined that the Veteran was eligible for rehabilitation services since her service-connected disabilities (hip, leg, and migraines) have substantially contributed to her employment impairment and have directly impaired her in obtaining and maintaining employment within her field of interests, aptitudes, and abilities. She had difficulty sitting and standing for longer periods of time, experienced constant pain in her legs, and experienced daily headaches. It had further been determined that she had a serious employment handicap. She had to quit her job at Barnes and Noble due to her severe migraine headaches. The report noted that there was still a chance she could work with the right accommodations. On her December 2008 VA Form 9, the Veteran stated that she was suffering daily migraine attacks, leaving her unable to find employment. She also indicated that she lost her employment due to her leg conditions. An April 2010 VA mental disorders examination report indicates that the Veteran was unable to work when she had headaches, and that, subsequently, she felt angry and guilty for not being able to work. At the March 2013 Board hearing regarding other issues on appeal, the Veteran testified that she stopped working because of her migraines. She stated that her migraines would cause her to throw up at work, and she would have to leave work to go home or to the doctor’s office. She testified that she stopped working about six years prior. She had not applied for Social Security Disability benefits because she would like to work, but she believed that her service-connected disabilities made it physically impossible for her to do so. At a September 2017 VA mental disorders examination, the examiner opined that the Veteran’s service-connected psychiatric disability caused occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran reported that she worked in the music department at Barnes and Noble and that the music and lights would aggravate her migraine headaches. Often, she would have to go into the bathroom and her manager would give her a shot of Imitrex so she could go back to work. She would get shots 3 to 4 times a week due to migraines. In a November 2017 VA migraine examination report, the examiner opined that the “frequency and severity of the Veteran’s migraines would make it very difficult for her to maintain full time employment. One important factor is the failure of effective medical therapy. The Veteran has tried many medications for her migraine, and only an injectable triptan Imitrex was found effective, although I do not believe that it is efficacious enough to improve her ability to maintain gainful employment. The oral triptans as well as many other medications are not helpful for daily preventative use. At this time, I would strongly support individual unemployability” (emphasis added). It is clear based on the above as well as the combined 90 percent disability rating in effect prior to February 17, 2016 that the Veteran had significant occupational impairment due to her service-connected disabilities. In particular, the Board emphasizes that, in April 2008, the vocational counselor stated that the lack of medical management of her migraine headaches would make it difficult, if not impossible, for her to perform anything other than “casual, part-time employment.” Then, in the November 2017 VA migraine examination report, the examiner, after reviewing the Veteran’s claims file and medical records, concluded that she had not received effective medical management for her migraines, and that she had tried a number of medications, but that none had proven efficacious. The Board acknowledges that the Veteran remained employed through March 2008, but the evidence indicates that it was a part-time job, and, even prior to that date, the evidence shows that her service-connected disabilities interfered with even her part-time position. Therefore, the Board finds that the evidence is at least in equipoise as to whether the Veteran was unable to secure gainful employment due to her service-connected disabilities throughout the period on appeal prior to February 17, 2016. [CONTINUED ON NEXT PAGE] Resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for a TDIU were met prior to February 17, 2016. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Sherrard, 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.