Citation Nr: 21062893 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 16-27 799 DATE: October 12, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, her service connected migraine headaches (50%), hammer toes of the 2nd, 3rd, and 4th toe of the right foot postoperative repair (10%), and surgical scars of the right foot (0%), which total a combined service-connected disability rating of 60 percent from November 18, 2010, preclude her from securing and following a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU on an extraschedular basis have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1986 to March 1991. In October 2018 and May 2021, the Board remanded this matter for further evidentiary development. In the most recent remand, the Board referred this appeal to the Director of the Compensation and Pension Service for consideration of an extraschedular TDIU. An opinion was obtained in June 2021. Thus, the Board finds that there has been substantial compliance with the prior remand directives and will proceed with adjudication. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran has not raised any issues in the current appeal that are not discussed herein, nor have any other issues been reasonably raised by the record. Doucette v. Shulkin, 28 Vet. App. 366 (2017). Entitlement to a TDIU on an extraschedular basis A total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is 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, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The central inquiry is "whether [a] veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Halstead v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to a Veteran's education, special training, and previous work experience, but not to his or her age or to the impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). For a veteran to prevail in a claim for TDIU, the record must reflect circumstances, apart from nonservice-connected conditions, that place him or her in a different position than other veterans who meet the basic schedular criteria. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he/she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The United States Court of Appeals for Veterans Claims (Court) recently defined "substantially gainful employment" and, in so doing, held that the term includes both economic and noneconomic components. The economic component means "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," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58 (2019). The Court set forth a number of factors to consider in making the latter determination, including the following: the Veteran's history, education, skill, and training; his or her physical abilities, including any audio or visual limitations, as well as limitations in lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching; and his or her mental ability, including limitations in memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Id. In the current appeal, the Board observes that the Veteran has not met the schedular percentage requirement for a schedular TDIU. Although she has not met the schedular criteria, she may still be considered for a TDIU rating under 38 C.F.R. § 4.16(b) on an extraschedular basis, if unemployable by reason of service-connected disabilities that do not meet the percentage standards set forth in § 4.16(a). Rating boards should refer to the Director of the Compensation and Pension Service for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16 (a). Service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). Pursuant to the May 2021 Board remand, this matter was referred to the Director of Compensation and Pension Services for an opinion on the issue of entitlement to a TDIU on an extraschedular basis. In June 2021, the RO issued a memorandum recommendation for denial of an extraschedular TDIU. Later in June 2021, the Director had concluded that an extraschedular TDIU was not warranted. However, pursuant to Wages v. McDonald, 27 Vet. App. 233, 236 (2015), nothing in the language of 38 C.F.R. § 4.16(b) purports to limit the Board's scope of review of the Director's decision, and the Board is the final authority on all benefits decisions under 38 U.S.C. § 7104(a). As such, the Board will make its own decision regarding whether a TDIU on an extraschedular basis is warranted. Specifically, in the current appeal, service connection is in effect for migraine headaches (50%), hammer toes of the 2nd, 3rd, and 4th toe of the right foot postoperative repair (10%), and surgical scars of the right foot (0%). The Veteran has a combined disability rating of 60 percent from November 18, 2010 and, thus, has not met the schedular requirement for a TDIU. However, after reviewing the evidence, in its May 2021 decision, the Board found that referral of the TDIU issue for extraschedular consideration was warranted and requested an appropriate opinion from the Director of Compensation and Pension Service. After indicating consideration of all relevant evidence including the Veteran's education and work history, the Director then determined that the overall evidence fails to support the contention that any of the Veteran's service-connected disabilities, or a combination thereof, prevent gainful employment. Although the Board is required to obtain the Director's decision before awarding extraschedular TDIU benefits in the first instance, it is not bound by the Director's decision or otherwise limited in its scope of review of that determination. Wages v. McDonald, 27 Vet. App. 233, 236-38 (2015). The Director's decision is not evidence, but, rather, the de facto agency of original jurisdiction (AOJ) decision, and the Board must conduct de novo review of this decision. Wages, 27 Vet. App. at 238-39. As such, the Board will now turn to a discussion of the favorable evidence of record. An April 2011 statement from a friend of the Veteran's notes that she (the Veteran) suffered with migraine headaches, which appeared to hinder her from finding gainful employment. In a VA 21-8940, Application for TDIU, also dated in April 2011, the Veteran reported that her hammertoes condition prevents her from securing or following any substantially gainful occupation. She reported a work history that includes working as a cook and in food services up until January 2011 and that she did not leave her last job because of her disability. She also reported that she completed one year of college and had attempted to obtain employment since becoming too disabled to work. A VA examination is of record from May 2011 addressing the Veteran's employability. The examiner noted that the Veteran was unemployed and that she reported that she was unable to find work compatible with her medical conditions. The examiner noted that her hammertoes disability would have significant effects on her occupation manifested by decreased mobility, lack of stamina, weakness or fatigue, pain, and disfigurement, likely requiring that she be assigned different duties and may include increased absenteeism. Similarly, the examiner noted that the Veteran's migraine headaches would lead to increased tardiness, increased absenteeism, decreased concentration, vision difficulty, lack of stamina, pain, and weakness or fatigue. The examiner noted that, when the Veteran has a migraine, she is debilitated until the pain subsides. The examiner opined that it was at least as likely as not that the Veteran would be unable to secure and maintain gainful employment. The examiner discussed the Veteran's work history and noted that her service-connected hammertoes and service-connected migraines combine to interfere with her ability to obtain or maintain substantially gainful employment. On a June 2011 VA 21-8940 Application for TDIU, the Veteran reported that her right foot disability and migraines prevent her from securing or following any substantially gainful occupation. She again acknowledged her work history in food services and noted that she left her last job because of her disability and that her last employer found it in their best interest to terminate her employment due to her disabilities. In July 2011, a prior employer noted that the Veteran was unable to perform her daily work-related duties and provided concessions for such. The employer noted that the Veteran was released from employment due to downsizing. Another VA examination is of record from November 2011. The examiner noted that the Veteran is bedridden three days a week from her debilitating headaches. The examiner then opined that the Veteran's non-service-connected disabilities of congestive heart failure and hypertension impact his ability to work in her given field. The examiner noted that the Veteran's service-connected disabilities and their impact on her ability to work were addressed in a separate opinion. The examiner discussed the physical difficulties presented by her given field and that her ability to perform in her field would be impacted by her other disabilities. Vocational Rehabilitation and Employment (VRE) records are available, and these records discuss the limitations presented by the Veteran's service-connected disabilities. See VRE Records received September 2017. These records indicate that the Veteran has a serious employment handicap due to her service-connected disabilities and severity of those disabilities, as well as due to her prior skills, experience, and education history. A July 2019 VA headaches examination noted that the Veteran's migraine headaches condition impacts her ability to work. The examiner noted that the Veteran may need time off for rest to address the headache pain and that her headaches may impact her work performance in the form of poor attendance. A July 2019 VA foot conditions examination noted that the Veteran's service-connected hammertoes condition does not impact her ability to work. The examiner noted that there was no evidence of any functional impairment related to her hammertoes condition and that the condition had resolved. The majority of the VA examiners who commented on the functional impact of the Veteran's service-connected disabilities indicated that these conditions would impact her ability to obtain or maintain a substantially gainful occupation. Further, the required breaks and incapacitating nature of her physical disabilitiesher migraine headaches in particularrender her unable to perform in any occupational setting, whether physical in nature or not. The Veteran's service-connected disabilities and their incapacitating nature, taken in conjunction with her occupational history, skill level, and educational history, suggest that she would be unable to find substantially gainful employment in any occupational setting, as her work experience is in food services and as her educational history is limited. Resolving reasonable doubt in the Veteran's favor, the Board finds that her service-connected disabilities preclude her from securing and following substantially gainful occupation. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, this appeal is granted. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Goreham 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.