Citation Nr: 21002191 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 13-02 657 DATE: January 13, 2021 ORDER Effective June 2, 2014, entitlement to a total disability rating based upon individual unemployability (TDIU) is granted. REMANDED Prior to June 2, 2014, entitlement to a TDIU, to include on an extraschedular basis, is remanded. FINDING OF FACT Effective June 2, 2014, the Veteran meets the schedular criteria for TDIU, and his service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW Effective June 2, 2014, the criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.16(a) (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Army from March 1991 to August 1991. In July 2017, the Veteran testified before the undersigned at a Board of Veterans’ Appeals (Board) videoconference hearing. A transcript of the hearing is of record. The Board remanded the matter on appeal for evidentiary development in January 2018, January 2019, and September 2020. Also on appeal were claims of entitlement to service connection for headaches and obstructive sleep apnea. Service connection for headaches was granted in a June 2020 rating decision, and in its September 2020 decision the Board denied service connection for obstructive sleep apnea. TDIU under 38 C.F.R. § 4.16(a) The Veteran contends that he is unable to work due to his service-connected disabilities, particularly due to occupational impairment caused by his migraine headaches and left shoulder and right knee disabilities. The Veteran is service connected for a migraine headaches (rated as 50 percent disabling); recurrent dislocation of the scapulohumeral joint of the left shoulder (30 percent disabling, effective May 14, 2018); rotator cuff disease with impingement and tendonitis of the left shoulder (20 percent disabling); tinnitus (10 percent disabling); and patellofemoral pain syndrome of the right knee (10 percent disabling). As of June 2, 2014, his combined rating for these disabilities is 70 percent (a combined 80 percent rating is in effect as of May 14, 2018). Prior to June 2, 2014, his combined rating is 60 percent. Accordingly, the Veteran meets the schedular criteria for a TDIU effective June 2, 2014. See 38 C.F.R. § 4.16(a) (to qualify for TDIU, the evidence must show that a veteran is unable to secure and follow a substantially gainful occupation as a result of service-connected disability, and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent). The remaining question on appeal is whether the Veteran’s service-connected disabilities have rendered him unable to secure and follow a substantially gainful occupation. Although there is some dispute regarding the Veteran’s employment history (as discussed in the Board’s September 2020 remand), the Board finds that a TDIU is warranted under 38 C.F.R. § 4.16(a) to the extent allowable by law. The instant appeal originated from the Veteran’s April 2010 statement in which he asserted that his service-connected left shoulder disability “kept me from getting jobs.” In an October 2020 VA Form 21-8940, the Veteran indicated that he last worked full-time in October 2008, and that he became too disabled to work in September 2012. He noted that he had worked intermittently in 2012 and 2013 as a bus person and timber cutter, but that he did not work from April 2010 to March 2012. The Veteran stated that he was fired from his last job “because I couldn’t do the job physically.” He explained that he had a difficult time standing due to knee trouble, and that he “had a lot of headaches” and shoulder problems. He also noted that he had been given a chance at his last job but that he “couldn’t keep up” because his shoulders and knees hurt too much. The Veteran indicated that he had graduated from high school and did not have any other education or training. In April 2015, the Veteran underwent a VA examination for his left shoulder. The report notes that the Veteran’s last full-time employment was as a timber faller in 2006; since then, he had a couple of sporadic short-term jobs as a logger. The Veteran reported chronic shoulder pain. In terms of functional impact, the examiner noted that the Veteran was restricted in reaching overhead or lifting more than ten or 20 pounds; these limitations, however, would not restrict him from light and sedentary occupations. The examiner opined that the Veteran’s mental health status was a bigger limiting factor in his ability to find and sustain work; the examiner described a “complex chronic pain syndrome” involving both physical and mental health symptomatology. (The Veteran is not service connection for any mental disorder.) At his June 2017 Board hearing, the Veteran testified that he had not worked since 2012 due primarily to knee problems. He also reported having headaches three or four times a week; he stated that when these attacks occurred, he would sometimes have to “lay down a lot” and “try to sleep when they get that bad.” The Veteran was afforded a series of VA examinations in May 2018, including a headache examination (his first such examination). The headache examination report reflects that the Veteran experienced headaches three times a week; the examiner characterized these attacks as “very prostrating and prolonged” and “productive of severe economic inadaptability.” In addition, reports from examinations of the Veteran’s left shoulder and right knee (also performed in May 2018) indicated that these disabilities hindered the Veteran’s ability to lift, perform overhead work, walk, stand, squat, or run. In January 2010, a VA examiner opined that the Veteran’s left shoulder and right knee disabilities limited the Veteran’s ability to perform physical work but would not restrict him from sedentary employment. No opinion was provided as to the occupational impact of the Veteran’s migraine headaches, however. In this case, the Board finds that the evidence of record demonstrates that the Veteran’s service-connected disabilities, particularly his migraine headaches in combination with his left shoulder and right knee disabilities, have rendered him unable to secure and follow substantially gainful employment. The Board bases this finding on the collective functional impairment described in the Veteran’s VA examination reports; the daily struggles articulated by the Veteran in his various statements and testimony; and the Veteran’s documented work and educational history. In particular, the Board finds that the limitations imposed by the Veteran’s service-connected left shoulder and right knee disabilities have rendered physical employment (especially dangerous and labor-intensive work such as logging) untenable, while the serious and debilitating nature of his migraine headaches have made it unreasonable to expect him to obtain and sustain sedentary employment. The Board recognizes that the Veteran has at times reported intermittent employment since filing his application for a TDIU. Notwithstanding, 38 C.F.R. § 4.16(a) instructs that “[m]arginal employment shall not be considered gainful employment,” and that “marginal employment” exists when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. The fact that the Veteran has been able to find periodic part-time work during the period under review does not preclude an award of TDIU. In sum, it is clear that the Veteran’s service-connected disorders make it very difficult for him to get through each day, much less sustain substantially gainful employment. Accordingly, the Board concludes that entitlement to a TDIU is warranted as of June 2, 2014, the date the Veteran first became eligible under 38 C.F.R. § 4.16(a). To this extent, his claim will be granted. REASONS FOR REMAND TDIU prior to June 2, 2014, to include on an extraschedular basis The Board reiterates that TDIU is warranted when a claimant is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability or disabilities. 38 C.F.R. § 4.16(a). When unemployability is shown and the claimant meets certain numeric evaluation requirements, the Board may award TDIU in the first instance. 38 C.F.R. § 4.16(a). Otherwise, the Board may only refer the case to the Director of Compensation Service (Director) for consideration of an extraschedular TDIU. 38 C.F.R. § 4.16(b); see also Cantrell v. Shulkin, 28 Vet. App. 382, 387 (2017). As noted above, the Veteran does not currently meet the schedular requirements for TDIU under 38 C.F.R. § 4.16(a) prior to June 2, 2014. Nonetheless, the Board has determined that the Veteran’s TDIU claim dates back to his April 2010 statement alleging unemployability due to his left shoulder disability. There is, moreover, evidence of record to suggest that the Veteran may have been unable to secure or follow a substantially gainful occupation prior to June 2, 2014. As the Board is unable to award a TDIU on an extraschedular basis in the first instance, a referral to the Director for consideration of the matter under 38 C.F.R. § 4.16(b) is warranted. The matters are REMANDED for the following action: Refer the application for a TDIU to the Director of Compensation Service for a determination as to whether the Veteran is entitled to a TDIU prior to June 2, 2014, to include on an extraschedular basis in accordance with the provisions of 38 C.F.R. § 4.16(b). A full statement as to the Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be provided. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Minot, 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.