Citation Nr: 21001053 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 15-32 252 DATE: January 6, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disorders (TDIU) is granted, effective October 7, 2019. REMANDED Entitlement to an increased disability rating for headaches is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disorders (TDIU) prior to October 7, 2019 is remanded. FINDING OF FACT The evidence is at least evenly balanced that, since October 7, 2019, the Veteran's service-connected disabilities have prevented him from securing and following a substantially gainful occupation. CONCLUSION OF LAW Since October 7, 2019, the criteria for a total disability rating based on individual unemployability due to service-connected disorders (TDIU) have been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.321(b), 3.340, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1973 to June 1994. This case comes to the Board from decision issued in September 2012 by the Agency of Original Jurisdiction (AOJ). The Board previously considered this appeal in October 2018, when it issued a decision and remand, denying a claim for service-connected compensation for sleep apnea, reopening previously three previously denied claims, and remanding more than twenty issues to the AOJ for further development. Shortly after the Board remanded the case, however, the Veteran submitted a written statement withdrawing all of the claims in his appeal except for the claim for an increased rating for headaches and TDIU. As the Board will explain, the evidence supports a finding granting the Veteran’s TDIU claim, effective October 7, 2019. When TDIU is granted for only part of the relevant appeal period, the issue of TDIU for the remainder of the period remains on appeal. See Harper v. Wilkie, 30 Vet. App. 356, 361-62 (2018). Accordingly, the Board will remand the issue of TDIU for the period prior to October 7, 2019 together with the increased rating claim for service-connected headaches. TDIU since October 7, 2019 VA will grant a total disability rating when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from securing or following substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Marginal employment is not considered substantially gainful employment. Marginal employment exists when the Veteran's earned annual income is below the poverty threshold and in other limited circumstances. Id. In September 2020, the AOJ granted service-connected compensation for major depressive disorder, with an initial disability rating of 70 percent and an effective date of October 7, 2019. As a result of this ruling, for the period since October 7, 2019, the Veteran meets the criteria for TDIU provided by 38 C.F.R. § 4.16(a) with one disability rated 70 percent disabling, two other disabilities with compensable ratings (headaches rated 30 percent disabling, degenerative arthritis of the lower back, rated 10 percent disabling, and tinnitus, also rated 10 percent disabling). He has six other service-connected disabilities for which a noncompensable (zero percent) rating was assigned: pseudofolliculitis barbae, residuals of a fracture of the right middle finger, residuals of a nose fracture, post-operative bilateral gynecomastia, left jaw scar, and right fourth finger scar. For the period before October 7, 2019, the Veteran’s combined disability rating is only 40 percent and there is no disability rated 40 percent or more. Under these circumstances, this decision will address only the TDIU claim since October 7, 2019. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001) (for TDIU claims in which the claimant does not satisfy the schedular requirements of 38 C.F.R. § 4.16(a), the Board lacks jurisdiction to assign a TDIU rating in the first instance). In a supplemental statement of the case (SSOC), issued in September 2020, the AOJ denied a TDIU claim because, in the opinion of the psychologist who examined the Veteran in October 2019, the severity of his service-connected psychiatric disorder most closely approximated the criteria for a 10 percent rating under 38 C.F.R. § 4.130 – i.e., occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. Although the October 2019 examination report does include this opinion, the specific symptoms identified in part 3 of the examination report are considerably more serious and explain the AOJ’s subsequent decision to assign a 70 percent rating for major depressive disorder. According to the examiner, the Veteran’s symptoms included difficulty adapting to stressful circumstances including work or a worklike setting, disturbance of motivation and mood, chronic sleep impairment, anxiety, and even suicidal ideation. Part 5 of the report (“Other Symptoms”) include decreased energy and fatigue, and a note that the Veteran usually experienced his depressive symptoms “most of the day, nearly every day . . .” The examiner also noted that, because of his service-connected depression, the Veteran had difficulty concentrating, remembering, and making decisions. The psychologist’s report also includes a summary of the Veteran’s military and employment history, which indicates that he had not employed since 2010. He had previously been employed as a mail carrier, and then as a supervisor with the postal service, before he stopped working shortly before brain surgery. The postal service provided a form to the AOJ confirming that the Veteran had stopped working many years before October 2019. In his initial application for TDIU, dated June 2011, the Veteran also indicated that his headaches made it difficult for him to work. According to a questionnaire completed in April 2017 by a physician in private practice, the Veteran experienced characteristic prostrating attacks of headache pain more than once per month and, in the physician’s opinion, was unable to work. Based on the combined symptoms of his headaches and service-connected major depressive disorder, the Board finds that the evidence is at least in equipoise as to whether service-connected disabilities have prevented the Veteran from securing and following a substantially gainful occupations since October 7, 2019. Applying the Board’s duty to resolve reasonable doubt in the Veteran’s favor, see 38 C.F.R. § 4.3, the Veteran has been eligible for a TDIU rating since October 7, 2019. REASONS FOR REMAND Since the most recent remand, the AOJ obtained medical evidence concerning the treatment of the Veteran’s headaches. These records include expressions of uncertainty as to whether headaches described by treating physicians are related to his service-connected migraine headaches or to neck pain which is not service-connected. According to a November 2010 note, the Veteran was experiencing “chronic headaches . . . very different than his previous migraine headaches.” In July 2018, one of the Veteran’s physicians wrote that “I explained that his headaches are likely due to his neck pain especially since it started after exertion.” Other records describe treatment for the brain tumor noted in psychiatric report. The Veteran withdrew his claims for service connection for a cervical spine disability, brain tumor, and residuals of traumatic brain injury in December 2018. Under these circumstances, it would be useful to obtain a new examination and a medical opinion attempting to differentiate the symptoms associated with service-connected headaches from head pain associated with neck pain or brain tumor. The Board will remand the increased rating claim to arrange that examination. The issue of a TDIU rating prior to October 7, 2019 is intertwined with the increased rating claim for headaches because the increased rating claim, if successful, could potentially affect whether the Veteran is eligible to receive a TDIU rating. The appropriate remedy when a pending claim is inextricably intertwined with an issue on appeal is to defer adjudication of the claim on appeal pending the adjudication of the inextricably intertwined claim. See Smith v. Gober, 236 F.3d 1370, 1372 (Fed. Cir. 2001); Henderson v. West, 12 Vet. App. 11, 20 (1998). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination with a qualified medical professional to determine the current severity of his service-connected headaches. The entire claims file must be made available to and be reviewed by the examiner, and it must be confirmed that such records were available for review. All indicated evaluations, studies, and tests should be accomplished and all findings reported in detail. In his or her report on the severity of the Veteran’s headaches, the examiner should indicate whether or not it is possible to differentiate the symptoms associated with the Veteran’s service-connected headaches from head pain associated with a cervical spine disorder or from head pain associated with a brain tumor or ependymoma. If it is impossible to distinguish the symptoms of head pain from these potential sources, the examiner should say so. The examiner should thoroughly explain the medical reasons for his or her conclusion. 2. The examiner should review the examination report requested above together with any new information submitted by the Veteran and proceed to consider the potential need for further development, including the issue of whether to refer the issue of TDIU prior to October 7, 2019 to the Director of the Compensation Service for extraschedular referral pursuant to 38 C.F.R. § 4.16(b). DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Nye, 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.