Citation Nr: 21001775 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 08-06 784A DATE: January 11, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis is denied. FINDING OF FACT The evidence has not shown that the Veteran is unable to secure and follow substantially gainful employment due to her service-connected disabilities alone.  CONCLUSION OF LAW The criteria for a TDIU on an extraschedular basis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16(a)-(b), 4.18, 4.25, 4.26 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1974 to February 1977.  This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2007 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).     The Board has issued three prior remands on this issue in August 2011, September 2015, and January 2017. In a December 2007 rating decision, the RO granted an evaluation of 30 percent for headaches, effective May 24, 2007, but denied a compensable evaluation for the disability prior to May 24, 2007. The Veteran continued her appeal of these evaluations to the Board. In August 2011, the Board found the issue of TDIU to have been raised as part of the claim for increased evaluations for migraine headaches. The Board remanded the claim for TDIU, as well as the claim for increased evaluations for migraine headaches (greater than 30 percent from May 24, 2007, and greater than zero percent prior to May 24, 2007) for further development. In September 2015, the Board granted a 50 percent evaluation for migraine headaches from October 28, 2006. The Board again remanded the claim for TDIU for further development, to include obtaining new medical examinations addressing the functional impairment caused by all of the Veteran’s service- connected disabilities. In addition, the RO was asked to provide the Veteran with a TDIU application for her to complete, to clarify the date and reasons for her retirement. In January 2017, the Board again remanded the claim for entitlement to a TDIU noting that the Veteran still had not completed an application for a TDIU and instructing the RO to provide her with another opportunity to do so. Additionally, the Board found that due to the evidence of record suggesting unemployability and worsening headaches that the claim should be remanded for extraschedular consideration under 38 C.F.R. § 4.16(b) to the Director, Compensation and Pension Service. TDIU 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 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).    If a sufficient rating is present, then it must be at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation as a result of that disease. See 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). The issue is not whether the Veteran can find employment generally, but whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the Veteran’s education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose, 4 Vet. App. at 363.   Where these percentage requirements are not met, entitlement to 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, and consideration is given to the Veteran’s background including his or her employment and educational history. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular total disability rating based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). However, it must be considered whether to refer a TDIU claim to the Director of Compensation Service for extraschedular consideration when the Veteran’s service-connected disabilities do not meet the schedular percentage requirement. 38 C.F.R. § 4.16(b). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19   1. Entitlement to a TDIU on an extraschedular basis. The Veteran is currently service connected for headaches at 50 percent, dyspepsia, postgastrectomy syndromes at 20 percent, and status post removal of right ovary and fallopian tube at 0 percent, for a total combined rating of 60 percent. As explained above, and as found in the January 2017 Board remand, the Veteran does not currently meet the criteria for a schedular TDIU under 38 C.F.R. § 4.16(a). Specifically, the Veteran does not have one service-connected disability rated at 60 percent or more, nor does she have two or more disabilities with one rated at 40 percent and a combined rating of 70 percent or more. Thus, the Veteran’s claim for a TDIU will be under extraschedular consideration pursuant to 38 C.F.R. § 4.16(b). The Board notes that the January 2017 Remand was issued prior to Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). As the Board does not have the authority to assign an extraschedular TDIU in the first instance, an advisory opinion was obtained from the executive director of compensation services. In this opinion dated September 2020, it was held “after giving consideration to all relevant evidence; including but not limited to the Veteran’s education, training, and work history, the Director of Compensation Service had determined the overall evidence fails to support the contention that any of the service-connected disabilities or a combination of the effects of those disabilities prevented gainful employment.” For the reasons explained below, the Board agrees with this finding. The Veteran was given a VA examination for her headaches in August 2007. Here, the examiner noted that a May 2007 head CT was normal and neurological examination showed an individual who was oriented, coherent and appropriate without evidence of dysarthria or aphasia. The examiner noted that the Veteran was in the midst of an escalating dose schedule for an increase in frequency in headaches of 2-3 times per month lasting for several days and found that her headaches can be occasionally debilitating to the point that she is unable to do her job, but “Currently, she preserves and continues to work during most of headaches.” The Veteran was given another VA examination for her headaches in April 2009. Here, the examiner noted that the Veteran was 60 years old and retired, with complaints of increasing frequency, severity, and duration of migraine headaches. Specifically, the examiner reported that the Veteran was suffering from headaches every other day and can last up to three days and that her headaches were aggravated by noise and her low back pain. Moreover, the examiner wrote “She states she is completely debilitated during the headache and, as a result, she has quit her job as a cashier at the naval base and retired.” The Veteran was given another VA examination for her headaches in May 2013. Here, she reported that her headaches have been “up and down in severity and frequency over the years and she has been tried on different medications for control.” With regard to functional impact, the examiner opined that the Veteran has to stop activity to rest in a dark, quiet room until the headache subsides. Under remarks, the examiner noted that the Veteran stated that she was able to work through her headaches if they weren’t too severe by taking prescribed and over the counter medication, but when she had a severe headache she had to call in sick. The Veteran was unable to tell the examiner how often these severe, debilitating headaches occurred. The examiner declined to answer whether the Veteran’s headaches caused “severe economic instability” but noted that per the Veteran’s history she stopped working as a cashier in 2006 due to a work-related back injury that required back surgery. The examiner noted that the Veteran has chronic back pain and opined that it was less likely than not that her migraine headaches alone affected her gainful employment. In March 2016, the Veteran was given a VA examination for her gynecological conditions, which were found to have no impact on her ability to work. Specifically, the examiner wrote “S/p R sided oophorectomy and salpingectomy in August 1975. Veteran has remained asymptomatic since and is currently without any GYN symptoms. There is no residual symptoms or related issues since her surgery in 1975. There has not been any further need for surgical intervention or work up regarding her military diagnosis of PID and R sided pelvic pain and surgical intervention. She has worked as a cashier for many years after this surgery without any GYN issues interfering with her work until 2008. She stopped working in 2008 due to back surgery. Therefore, it is the opinion of this writer that her R sided oophorectomy and salpingectomy of 1975 has not and is unlikely to ever affect her ability to function in a work setting or to perform work tasks.” The Veteran was also given another VA examination for her headaches in March 2016. Here, the examiner noted a normal head CT in May 2012 and opined that the functional impact of her headaches was absenteeism during severe episodes. Under remarks, the examiner provided “During current exam, Veteran reported severe episodes occur at least once a month and last 2-3 days. Currently this would cause excessive absenteeism. Her providers are still adjusting her medications to achieve better control of her headaches and anxiety, therefore would expect functional impact to improve. Her mental health issues seem to be aggravating her headaches and her medications are being adjusted and she has follow up in the mental health clinic. Based on above, it is less likely that headaches alone would preclude gainful employment.” In March 2016, the Veteran was also given a VA examination for her stomach and duodenal conditions. The examiner opined that the Veteran’s dyspepsia did not impact her ability to work, writing “Based on record review and Veteran’s history and degree/nature of her complaints, it is less likely that dyspepsia, early satiety would have significant functional impact or preclude gainful employment.” The Veteran was given another VA examination for her headaches in March 2018. Here, the examiner opined that the Veteran’s headaches have no impact on her ability to work. In opining so, the examiner provided “Medical records and remand letter have been reviewed; the noncompliance is a major issue and her elevated uncontrolled blood pressure which symptoms can be headaches, blurred vision, and dizziness. The records reviewed were the tabbed sections included below. The headaches etiology can be the uncontrolled hypertension and stress of death of her mother. Once the BP is controlled and the decreased frequency of headaches should decrease and she can continue to work. The migraine headaches are not debilitating. She does not report having to go to a dark room to lie down. The headache is worse with increased physical activity.” The Veteran was last given a VA examination for her headaches in October 2019. Here the examiner noted that the Veteran’s headaches have worsened over the last 12 months and she continued to have throbbing pain mostly in the right side of the head that occur at least every day and last anywhere from 1-3 hours. Nevertheless, the examiner only listed Tylenol as needed for the Veteran’s treatment plan. The examiner opined that the Veteran’s headaches impact her ability to work writing “Due to headaches, Veteran states that she is unable to perform any household chores with chemicals.” No additional functional limitations were noted. Finally, in December 2019, the Veteran was given a VA examination for her stomach and duodenal conditions, as well as esophageal conditions. Here, the examiner opined that the Veteran’s dyspepsia, postgastrectomy caused no impact on her ability to work. Based on the findings in these VA examinations, the Board finds that the Veteran’s service-connected dyspepsia, postgastrectomy syndromes and status post removal of right ovary and fallopian tube cause no functional impact on her ability to work. The Board finds each of these opinions to be well-reasoned and supported by the record, entitling them to significant weight. Thus, the Board is left to consider whether the Veteran’s migraine headaches, alone, render her unable to secure and follow a substantially gainful occupation. The Board notes that the record contains a copy of the Veteran’s application for social security disability benefits. Here, the Veteran listed her disabilities as migraine headaches, acid reflux, and titanium rod in back. Treatment records provided by the Social Security Administration (SSA) note back pain secondary to a workman’s compensation injury claim. Treatment records for the Veteran’s back dated November 2007 note that paperwork was filled out to “reduce the amount of weight and work she had to do at her job, and we were hopeful they would restrict her down to 15-20 pounds as well as restrict some of her stooping and lifting, but apparently they had not. We have refilled her paperwork out today.” Later that month, treatment records note “She has done reasonably well although she still has significant restrictions due to the chronic back pain. She is still working her job where she is able to check groceries. She does a lot of twisting, turning, pulling and lifting but we restricted her to 4 to 6 hours per day. She does require some breaks. She is basically stable.” In records from May 2008, the Veteran reported that her job duties require her to bend, lift objects, as well as move things off a surveyor belt repeatedly for approximately 8 hours a day, with two 15 minute breaks and a lunch break, which made her back pain very bothersome after a full workday. The Veteran first filed a completed application for a TDIU in February 2017. Here, she listed the disabilities preventing her from working as headaches, stomach, back and one other illegible condition. The Veteran further wrote that she was under the care of a doctor within the last 12 months for an aneurysm. The Board notes that the Veteran is not service connected for any back condition, or an aneurysm. The Veteran listed her highest education level as two years of college and no additional education or training. The Board notes that on her SSA application, the Veteran listed three years of college education and special job training as a truck driver. The Veteran’s only work experience on either application was that of a cashier for over 20 years. While the Board notes that the medical evidence includes functional impacts on the Veteran’s ability to perform her work as a cashier, the preponderance of the evidence is against the finding that the Veteran’s service-connected headaches alone have precluded her from securing and following a substantially gainful occupation. The Board finds the assertions that the Veteran cannot work due to her headaches are not credible. As noted in the September 2020 advisory opinion for extraschedular consideration “There is no evidence that the Veteran is unable to obtain and maintain gainful employment due to service-connected conditions. Social Security records show that the Veteran retired from position as a cashier and did not stop working due to disability or migraines. The Veteran reported physical limitations on lifting and prolonged standing due to non-service connected back condition. VA Form 21-8940 shows no attempt to obtain sedentary work after on [sic] September 25, 2008. There is no evidence of inability to perform sedentary employment due to service-connected conditions.” The VA examiners’ opinions regarding the Veteran’s headaches contain conflicting limitations, but it is found that the Veteran ultimately left her job as a cashier due to a non-service connected back condition. The Veteran’s headaches have been evaluated at 50 percent since October 28, 2006, indicating that she was able to work for at least two years with severe headaches before retiring due, at least in part, to a non-service connected back condition. While the director’s advisory opinion finds that the Veteran could perform sedentary work, the Board finds that the Veteran’s service-connected headaches, alone, would not limit her to only sedentary work (i.e., office administrative work, activities that involve primarily sitting, activities that do not require repetitive physical exertion, etc.). The central inquiry is, “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad, 5 Vet. App. 524, 529 (1993). The issue is not whether the Veteran can find employment generally, but whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose, 4 Vet. App. 361, 363 (1993). Consideration may be given to the Veteran’s education, special training, and previous work experience, but not to her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose, 4 Vet. App. at 363. The Veteran has a 2-3-year college education, along with special training as a truck driver. She has previous work experience as a cashier, which includes a skill set that includes math skills, communication skills, and attention to detail. The Veteran is not service connected for any back or psychiatric conditions. While the Veteran is experiencing a severe headache episode it is possible that she would need to miss some or all of a workday which is contemplated in the current disability rating, however, she has also indicated that over the counter Tylenol helps to control her headache pain. Finally, as noted above, the Veteran was able to work through her headaches prior to her retirement. The Board is not persuaded that the Veteran does not have the physical ability and the mental ability to perform the activities required by an occupation on account of her headaches. Accordingly, the preponderance of the evidence is against the finding that the Veteran’s service-connected disabilities, alone, render her unable to secure or follow a substantially gainful occupation. Therefore, entitlement to a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b) is not warranted. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Ruiz, 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.