Citation Nr: 21003914 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 11-11 564 DATE: January 25, 2021 ORDER Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The Veteran does not meet the schedular criteria for TDIU. 2. The Veteran’s service-connected disabilities alone, do not render him unable to obtain and retain substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a total disability evaluation based on individual unemployability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16, 4.19 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S Army from November 1953 to October 1955. This appeal comes before the Board of Veterans’ Appeals (Board) from a February 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to increased ratings for migraine headaches and sinusitis. In an August 2017 decision, the Board denied entitlement to increased ratings for migraine headaches and sinusitis, but remanded the issue of entitlement to a TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), as part and parcel of the Veteran’s increased rating claims. The case has now returned to the Board for adjudication. Total disability ratings for compensation based on individual unemployability may be assigned where the scheduler rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of 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). Where these percentage requirements are not met, entitlement to the 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. 38 C.F.R. § 4.16(b). Marginal employment shall not be considered substantially gainful employment, and generally shall be deemed to exist when a veteran’s earned 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. Marginal employment may also be held to exist, on a facts-found basis (including but not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 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 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 v. Brown, 4 Vet. App. 361, 363 (1993). A claim for a total disability evaluation based on individual unemployability due to service-connected disorders is, in essence, a claim for an increased rating. Norris v. West, 12 Vet. App. 413, 420-21 (1999). Such a claim is an alternate way to obtain a total disability rating without recourse to a 100 percent evaluation under the rating schedule. The Veteran is service connected for migraines rated as 30 percent disabling, deviated nasal septum residual of a nose fracture rated as 10 percent disabling, and sinusitis rated as 10 percent disabling. His combined evaluation is 40 percent which does not meet the minimum percentage rating required for consideration of assignment of a total disability rating for individual unemployability. 38 C.F.R. § 4.16(a). Nevertheless, in exceptional circumstances, where the veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). The Board has no authority to assign a TDIU rating under section 4.16(b) in the first instance, and may only refer the claim to the Director of Compensation Service for extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1 (2001). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Based on the evidence presented, the Board finds that the preponderance of the evidence is against the claim for a total disability evaluation based on individual unemployability due to service-connected disabilities. Thus, referral for entitlement to TDIU on an extraschedular basis is not warranted. In this regard, the evidence shows that the Veteran worked as a policeman from 1960 to 1987. He last worked full time in 1987. He reports that he left his job because of his disability. During a December 2015 VA examination for headaches, the Veteran reported that he continued to have frequent headaches. The headaches were described as having “like a band” around the head. He denied the need for emergency room visits and/or hospitalization for his headaches. It was noted that he experienced pulsating or throbbing head pain on both sides of the head. He experienced non-headache symptoms associated with headaches, to include nausea. Prostrating attacks over the last several months were shown to be less than frequent. There was no finding of very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. The VA examiner found that his headaches did not impact his ability to work. During a December 2015 VA examination for sinusitis and other conditions of the nose, the Veteran was diagnosed with chronic sinusitis and a deviated nasal septum. He reported that his condition was more or less the same and that he continued to have nasal congestion. He denied acute exacerbation of his sinusitis. Examination revealed that he had episodes of sinusitis, headaches and tenderness of affected sinus. Within the last 12 months, he had three non-incapacitating episodes of sinusitis characterized by headaches, pain and purulent discharge or crusting. There were no reported incapacitating episodes of sinusitis requiring prolonged (4 to 6 weeks) antibiotics treatment. The VA examiner found that the Veteran’s sinus, nose, throat, larynx or pharynx condition did not impact his ability to work. While a claim for TDIU was raised by the record, aside from his VA Form 21-8940, the Veteran has not submitted any evidence, lay or medical, to support this claim. It is also noted that, on his VA Form 21-8940, the Veteran stated that he stopped working because of his disabilities. When asked if he has tried to obtain employment since he last became too disabled to work, he replied yes but then wrote “I receive policeman retirement.” The Board also acknowledges that the Veteran had been hospitalized multiple times in 2018 and 2019, however these hospitalizations were for other, non-service-connected disabilities. The Veteran is competent to report pain, nasal congestion, sinus problems and functional limitations resulting therefrom. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds that the complaints of migraine pain and sinus problems documented in his VA examinations are credible. Although the Veteran believes that he cannot secure or follow a substantially gainful occupation as a result of his service-connected disabilities, the most probative evidence is against the claim. Simply put, the Veteran’s opinion is less probative than that of the skilled VA medical examiners. In this regard, the VA examiner opinions were rendered after review of the record (containing pertinent information), examination of the Veteran, and consideration of the nature and extent of his service-connected disabilities. The Board is also mindful that throughout this appeal the Veteran has been unemployed and last worked in 1987. The sole fact, however, that the Veteran is unemployed or has difficulty obtaining employment is not the basis for an award of a total disability evaluation based on individual unemployability due to service-connected disorders. Rather, the legal standard is whether the Veteran’s service-connected disabilities alone preclude substantially gainful employment. The Board has reviewed the lay statements, and all available VA outpatient treatment records and examinations. These records do not show that the Veteran’s service-connected disabilities preclude him from engaging in substantially gainful employment. (Continued on the next page)   While the Board does not dispute that the Veteran’s migraines and sinusitis may cause some occupational barriers, standing alone, the Board finds that the requirements for referral of an extraschedular TDIU evaluation have not been met. Accordingly, the claim is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. Gilbert, 1 Vet. App. 49, 53. J. SAIKH Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.S. Willie 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.