Citation Nr: 21003931 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 16-34 592 DATE: January 25, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to October 31, 2014 is denied. Entitlement to a TDIU from October 31, 2014 is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. The Veteran’s service-connected disabilities are posttraumatic stress disorder (PTSD) (30 percent disabling prior to November 22, 2019 and 70 percent disabling from that date), migraine headaches (10 percent disabling prior to October 31, 2014 and 50 percent disabling from that date), muscle group XIV impairment (10 percent disabling from February 10, 2017), tinnitus (10 percent disabling from July 19, 2017), and history of scar of the left thigh (noncompensable). 2. The Veteran’s combined service-connected disability rating was 40 percent from November 15, 2013 to October 31, 2014, 70 percent from October 31, 2014 to November 22, 2019, and 90 percent from November 22, 2019. 3. During the period prior to October 31, 2014, the probative evidence shows that the Veteran’s service-connected disabilities alone did not prevent her from obtaining and maintaining substantially gainful employment. 4. Resolving reasonable doubt in her favor, during the period from October 31, 2014, the probative evidence shows that the Veteran’s service-connected disabilities prevent her from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. During the period prior to October 31, 2014, the criteria for a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. 2. During the period from October 31, 2014, the criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1966 to August 1971, with subsequent periods of reserve service. This case comes to the Board of Veterans’ Appeals (Board) on appeal from decisions of the Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). The Veteran testified before an AOJ hearing officer in January 2016, and before the undersigned Veterans Law Judge at an April 2019 hearing; transcripts of the hearings are of record. The Board previously remanded this case to the AOJ in July 2019, for additional development. In an April 2020 rating decision, the AOJ granted a higher 70 percent rating for posttraumatic stress disorder (PTSD), effective November 22, 2019, and a higher 50 percent rating for migraine headaches, effective May 2, 2016. In a September 2020 decision, the Board, in pertinent part, granted a higher 50 percent rating for migraine headaches from October 31, 2014, and remanded the claim for a TDIU to the AOJ for additional development. In an October 2020 rating decision, the AOJ effectuated the Board's grant of a higher 50 percent rating for migraine headaches. The case was subsequently returned to the Board. 1. Entitlement to a TDIU prior to October 31, 2014 2. Entitlement to a TDIU from October 31, 2014 The Veteran contends that she is unable to work due to service-connected disabilities. In April 2015, she filed claims for increased ratings for her service-connected psychiatric disorder and migraine headaches, and subsequently asserted that the maximum allowable ratings should be assigned for these disabilities. See August 2015 notice of disagreement. Her service-connected psychiatric disorder was later recharacterized as PTSD in a May 2016 rating decision. A request for a TDIU, whether expressly raised by a claimant or reasonably raised by the record, as in this case, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of the appeals for increased ratings. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Prior to March 24, 2015, the VA administrative claims process recognized formal and informal claims. As noted in the May 2016 AOJ decision, an informal claim for an increased rating for service-connected migraine headaches was received in November 2013. See 38 C.F.R. § 3.157 (a) (2014) (A report of examination or hospitalization which meets the requirements of this section will be accepted as an informal claim for an increase or to reopen provided the report relates to a disability that may establish entitlement). At the April 2019 Board hearing, the Veteran testified that she has been retired since 2000. She stated that she was a teacher for 20 years, and then worked at Wal-Mart as a personnel manager. She and her spouse subsequently owned a donut shop for two years, but declared bankruptcy. She said that she had a hard time interacting with male customers at the shop due to her service-connected PTSD. She also testified that her anxiety attacks usually precipitated migraine headaches that laid her up for at least a day and sometimes two or three days when she had to stay in a dark room. She said that the frequency of her headaches had decreased since she no longer went out as much, but then stated that stress from medical problems had increased her anxiety and the frequency of her headaches. She stated that before she retired, she had to take time off work when she had migraines, and she currently had migraines at least once per week. The issue of entitlement to a TDIU was previously remanded to give the Veteran another opportunity to complete a Veteran’s Application for Increased Compensation Based on Unemployability (VA Form 21-8940). By a letter to the Veteran dated in September 2020, the AOJ requested that she complete and return a VA Form 21-8940, and a Request for Employment Information in Connection with a Claim for Disability Benefit (VA Form 21-4192), and she did not respond or submit any additional information or evidence regarding her employment. The duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). As the Veteran has twice failed to complete this form, the Board will proceed with adjudication of the TDIU claim without the requested information. A total disability rating for compensation may be assigned, where the schedular rating is less than total, 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, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16 (a). 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. Therefore, in the case of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet these schedular percentage standards, the case should be submitted to the Director, Compensation Service, for extraschedular consideration. 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 not to her age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The United States Court of Appeals for Veterans Claims (Court) has held that the term unable to secure and follow a substantially gainful occupation in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran's ability to follow and secure employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). The Court has stated that "a veteran can establish marginal employment either by demonstrating an income less than the poverty threshold established by the U.S. Census Bureau or by the facts of his particular case." Ortiz-Valles v. McDonald, 28 Vet. App. 6, 71 (2016). Regardless of the method, "if the evidence or facts reflect that a veteran is capable only of marginal employment, he [or she] is incapable of securing or following a substantially gainful occupation and is therefore entitled to [TDIU] if his service-connected disabilities are the cause of that incapability." Id. The Veteran's service-connected disabilities are PTSD (30 percent disabling prior to November 22, 2019 and 70 percent disabling from that date), migraine headaches (10 percent disabling prior to October 31, 2014 and 50 percent disabling from that date), muscle group XIV impairment (10 percent disabling from February 10, 2017), tinnitus (10 percent disabling from July 19, 2017), and history of scar of the left thigh (noncompensable). The combined rating for the Veteran's service-connected disabilities was 40 percent prior to October 31, 2014, 70 percent from October 31, 2014 to November 22, 2019, and 90 percent from November 22, 2019. The Veteran has not met the schedular criteria for a TDIU pursuant to 38 C.F.R. § 4.16 (a) prior to October 31, 2014, but has met the criteria from that date. What remains to be determined is whether her service-connected disabilities render her unemployable. For a Veteran to prevail on a claim for a TDIU, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether a Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See 38 C.F.R. § 4.16 (a); Van Hoose v. Brown, 4 Vet. App. 361 (1993). Whether a service-connected disability or disabilities renders a Veteran unemployable is a legal determination for adjudicators to make rather than a medical question to be answered by health care professionals. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (“[A]pplicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner”). The evidence shows that the Veteran has a bachelor’s degree in education, and had varied work experience as a teacher (for 20 years), horse trainer, and personnel manager. See the Veteran’s service personnel records, May 2011 VA outpatient treatment record, private medical records, and April 2019 Board hearing transcript. VA outpatient treatment records and private medical records reflect that she has multiple non-service-connected orthopedic disabilities of the bilateral hips, knees, ankles, feet, back and left shoulder, and diabetes mellitus, which affect her ability to work. A November 2001 private medical record from Dr. K. reflects that she was working on a full-time basis as a personnel manager but had severe right knee pain. These records reflect that she underwent multiple surgeries of both knees beginning in 1989, after a work-related knee injury in May 1988. In October 2002, Dr. K. stated that she had been off work since 2002 because of her left knee surgery. A December 2002 private medical record reflects that she underwent a right total knee arthroplasty (TKA) in March 2002, and a left TKA in October 2002, and also had chronic back problems. Dr. K. indicated that she could probably return to work in January 2003. VA examinations in January 2014 reflect that the Veteran reported that she worked as a teacher for 20 years and retired, and then worked at Wal-Mart as a personnel manager for 15 years and retired. She and her husband opened a donut shop in 2000, but by 2002 they closed the business after investing all they had into it and going bankrupt. It was noted that she has been retired since 2002. The January 2014 VA migraine examiner opined that she had characteristic prostrating attacks of migraine headache pain, less than once every two months, and did not have very frequent prostrating and prolonged attacks of migraine headache pain. The examiner opined that the headache condition did not impact her ability to work since she retired in 2004. The June 2015 examiner opined that she did not have characteristic prostrating attacks of migraine or non-migraine headache pain. The examiner also stated that the headache condition impacted her ability to work, and she would not be able to work on the days she had a headache. VA outpatient treatment records and the Veteran's lay statements reflect that she had frequent headaches since October 31, 2014. The January 2020 VA examiner opined that she had characteristic prostrating attacks of migraine or non-migraine headache pain, once in two months. She did not have very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. The examiner also stated that the headache condition impacted her ability to work, and she would not be able to work on the days she had a headache. The Board has previously found that the evidence reflects that during the rating period from October 31, 2014 the Veteran had migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Prior to November 22, 2019, the Veteran's service-connected PTSD produced occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, but was generally functioning satisfactorily, with routine behavior, self-care, and normal conversation. A January 2016 private psychological evaluation by J.A. reflects that her PTSD produced moderate impairment. From November 22, 2019, PTSD produced occupational and social impairment with deficiencies in most areas. See VA examinations in January 2014, June 2015, and November 2019, and January 2016 private mental status examination. Prior to October 31, 2014, the Veteran did not meet the schedular criteria for a TDIU, and a TDIU under 38 C.F.R. § 4.16 (a) is denied. In light of the foregoing evidence, which does not show that the Veteran was unemployable as a result of her service-connected disabilities during this period, the Board finds that extraschedular referral under 38 C.F.R. § 4.16 (b) is not warranted. After a review of all of the evidence of record, the Board finds that during the period from October 31, 2014, the evidence is at least in equipoise as to whether her service-connected migraine headaches and PTSD, especially in combination, are of a nature and severity as to preclude her from engaging in the type of work for which she is qualified by reason of past education, work experience and training. The record shows that her service-connected disabilities produce significant physical and psychiatric limitations, and play a major role in her inability to obtain and maintain employment that could be considered substantially gainful, in that they affect her ability to perform this level of work on a consistent basis. Thus, with application of the benefit-of-the-doubt rule, the Board finds that the criteria for a TDIU are met during the period from October 31, 2014 under 38 C.F.R. § 4.16 (a). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. L. Wasser, 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.