Citation Nr: 21068014 Decision Date: 11/08/21 Archive Date: 11/08/21 DOCKET NO. 15-42 098 DATE: November 8, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) for the period from November 20, 2015 is granted. REMANDED Entitlement to a rating in excess of 30 percent for benign paroxysmal positional vertigo (BPPV), to include on an extraschedular basis, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) for the period prior to November 20, 2015 is remanded. FINDING OF FACT The evidence is at least equipoise as to whether the Veteran's service-connected migraines and BPPV precluded substantially gainful employment consistent with his education and occupational experience during the period from November 20, 2015. CONCLUSION OF LAW The criteria for a TDIU for the period from November 20, 2015 have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16(a), 4.19, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from January 1995 to October 1997. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) in October 2013. The RO, in relevant part, continued a 10 percent rating assigned for the Veteran's service-connected benign paroxysmal positional vertigo (BPPV). The Veteran testified before the undersigned Veterans Law Judge during a February 2019 Board hearing. A copy of the hearing transcript has been reviewed and associated with the claims file. In a May 2019 decision, the Board denied a rating in excess of 10 percent for the Veteran's BPPV. The Board also found that the issue of entitlement to a total disability rating based on individual unemployability (TDIU) was reasonably raised by the evidence of record and remanded the issue for evidentiary development. The Veteran appealed the Board's denial of an increased rating for BPPV to the United States Court of Appeals for Veterans Claims (Court). In June 2020, the Court granted a joint motion for partial remand (JMPR), vacating the Board's denial of an increased BPPV rating and remanding the issue to the Board. In an October 2020 decision, the Board remanded the issue of an increased BPPV rating for further development. In a March 2021 rating decision, the RO granted a 30 percent rating for the Veteran's BPPV, effective February 6, 2021. These matters were again before the Board in May 2021 and were remanded for further evidentiary development. In a July 2021 rating decision, the RO granted a 30 percent rating for the Veteran's BPPV, effective May 4, 2012, the date his application for an increased rating was received. Entitlement to a total disability rating based on individual unemployability (TDIU) for the period from November 20, 2015 A total disability rating due to individual unemployability (TDIU) may be granted where the schedular rating is less than 100 percent if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16(a), 4.19, 4.25. Generally, to be eligible for a TDIU, a schedular percentage threshold must be met. If there is only one service-connected disability for TDIU purposes, it must be rated at least 60 percent disabling. If there are two or more service-connected disabilities, there must be at least one disability rated at 40 percent or more and enough additional disabilities to bring the combined overall rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In determining employability for VA purposes, consideration is given to the level of education, special training, and work experience, but not to age or non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16(a), 4.19; see also Faust v. West, 13 Vet. App. 342 (2000). The question is 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) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). The Veteran does not have to be 100 percent unemployable in order to be entitled to a TDIU. Robertson v. Principi, 251 F. 3d 1378, 1385 (Fed. Cir. 2001). Where there is an approximate balance of positive and negative evidence as to any issue, all reasonable doubt will be resolved in favor of the Veteran. 38 U.S.C. § 5107. When evaluating the evidence of record, the Board must assess the credibility and probative value of the evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wood v. Derwinski, 1 Vet. App. 190 (1991). For the period from November 20, 2015, the Veteran has been in receipt of a 50 percent disability rating for migraines and a 30 percent rating for benign paroxysmal positional vertigo (BPPV), for a combined rating of 70 percent. Thus, he meets the schedular criteria for a TDIU from November 20, 2015. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). He asserts that his service-connected disabilities have rendered him unemployable. The Veteran underwent a VA examination for his BPPV in February 2015. The examiner stated that the Veteran's vertigo causes imbalance resulting in falls and that he has to leave work during attacks of vertigo. The Veteran underwent a VA headache examination in March 2017. The examiner indicated that the Veteran suffered one to two prostrating headaches per week. The examination report states that the Veteran had been working as a school bus driver and had missed 18 to 20 days of work over the course of that school year. The examiner also noted that he had received two warnings for excessive absenteeism related to his headaches. During a VA mental disorder examination in August 2017, the Veteran reported that he had been working part-time as a bus driver and had previously worked in warehousing, trucking, and as a forklift operator. The examiner also indicated that the Veteran has had about 30 different jobs since his separation from active duty service and has lost several jobs due to his migraines. The examination report notes that the Veteran has a high school diploma and two years of technical school. During his Board hearing in February 2019, the Veteran testified that he had missed a several days of work due to vertigo over the preceding five or six years. He testified that he had missed more than 20 days over the preceding 14 months and that he cannot function during vertigo spells. The Veteran underwent another vertigo examination in February 2021. The examiner indicated that he experienced vertigo episodes one to four times per month, with episodes lasting more than 24 hours. The examiner opined that his recurrent vertigo attacks significantly reduce his functional capacity and negatively impact his ability to work. The Veteran submitted a VA Form 21-4138, Statement in Support of Claim, dated in April 2021. In it, he stated that he suffers from migraines once or twice weekly, which can last for multiple days at a time. The correspondence indicates that when he gets a migraine he must lie down in a dark room and take medication, and that he is unable to function until the migraine passes. He also stated that he suffers from weekly vertigo episodes lasting up to 24 hours at a time. According to the Veteran, these attacks impair his balance and affect his ability to stand, sit, walk, and drive. Finally, he indicated that his migraines and BPPV have caused him to miss an average of three days of work per month, affecting his ability to maintain gainful employment. In a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, received in July 2021, the Veteran indicated that he had last worked in March 2020 as a driver for a construction company, for 30 to 40 hours per week. Prior to that position, he worked as a school bus driver from March 2016 to September 2019 for 30 hours per week. He stated that his service-connected migraines and BPPV caused him to miss three days or more per month at each of these positions. The Veteran underwent another VA BPPV examination in August 2021. He related to the examiner that he left his previous job voluntarily because his headaches and vertigo made it too difficult to work. He indicated that he has never maintained one position for more than around two years due to headaches and vertigo. The examiner opined that the Veteran's BPPV does not preclude his ability to perform sedentary employment. She stated that, while the Veteran reported vertigo episodes occurring several times per week, such episodes do not preclude all types of employment. The examiner stated that the Veteran is suited for home-based, sedentary employment. A representative from the Veteran's most recent employer completed a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, in October 2021. She stated that the Veteran last worked in March 2020 and had been absent 31 days over the last 12 months of his employment. The Veteran submitted a private opinion from Dr. R.B., DNP, RN, CRNP, FNP-C in October 2021. Dr. B. opined that the Veteran's migraines and BPPV preclude his ability to sustain gainful employment. In support of her opinion, Dr. B. pointed to the Veteran's April 2021 Statement in Support of Claim, in which he described the frequency and duration of his migraines and BPPV episodes, as well as the impact each disability has on his ability to function and maintain employment. She also noted the employment information obtained from the Veteran's former employer, indicating that he had missed 31 days of work during his last 12 months in that position. Dr. B. opined that missing more than one day of work per month would be considered excessive and would preclude the Veteran's ability to sustain substantially gainful employment. The Board finds that the evidence is at least in equipoise as to whether the Veteran's service-connected BPPV and migraine disabilities have precluded him from maintaining substantially gainful employment. In this regard, the Veteran has presented evidence that his vertigo and migraines occur with such frequency and severity to cause him to miss an excessive number of workdays, rendering him unable to maintain employment. As indicated in the March and August 2017 VA examinations, the Veteran lost several jobs and received formal warnings for his excessive absenteeism due to his migraines and BPPV. The February 2021 VA examiner also opined that his vertigo attacks severely limit his functional ability. In addition, Dr. B. stated that the high number of absences due to vertigo and migraines would render the Veteran unemployable. The evidence presented by the Veteran shows that his migraines and vertigo limit his ability to sit, stand, walk, drive, and perform other tasks to such a degree that they render him incapable of maintaining steady, substantially gainful employment. The Board notes that the August 2021 VA examiner opined that the Veteran's service-connected disabilities do not preclude him from all types of work and stated that he is capable of performing sedentary, preferably home-based, work. However, the Veteran has worked primarily as a driver, forklift operator, and in warehousing. The evidence does not show that he has the education, skills, and/or training required for sedentary work, most of which would be computer-based. In addition, the Veteran's episodes of BPPV and migraines significantly limit his ability to function in any environment. His migraines require him to remain in darkness until they pass, which can take more than 24 hours, and his vertigo attacks cause difficulty with both standing and sitting. For these reasons, the Board gives little weight to the August 2021 examiner's opinion that the Veteran's service-connected disabilities do not preclude him from sedentary work. See Owens, 7 Vet. App. at 433; Wood, 1 Vet. App. at 190. For the period from November 20, 2015, the Veteran meets the schedular criteria for an award of TDIU. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). He has presented sufficient evidence for the Board to conclude that his service-connected migraines and BPPV have rendered him unable to secure and maintain substantially gainful employment. Therefore, the criteria for entitlement to a TDIU have been met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a), 4.19, 4.25. REASONS FOR REMAND 1. Entitlement to a rating in excess of 30 percent for benign paroxysmal positional vertigo (BPPV), to include on an extraschedular basis, is remanded. To accord justice in the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation Service is authorized to approve an extraschedular evaluation. 38 C.F.R. § 3.321 (b)(1). In other words, by regulation, an extraschedular rating may be considered when a case presents "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321 (b)(1). Per § 3.321(b)(1), before a finding may be made that entitlement to submission of the Veteran's claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service for extraschedular consideration is warranted, there must be a showing of marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. For the entire rating period on appeal, or from May 4, 2012, the Veteran is in receipt of a 30 percent disability rating for his service-connected BPPV pursuant to 38 C.F.R. § 4.87, Diagnostic Code 6204. 30 percent is the maximum schedular rating available under Diagnostic Code 6204. During his February 2019 hearing, the Veteran testified that his vertigo had caused him to miss a substantial amount of work over the preceding five or six years, including over 20 days missed in the 14 months prior to his hearing. In a November 2020 letter, the Veteran's wife, A.S., wrote that her husband's BPPV has impacted the family's financial and social life because the Veteran is home "all of the time" due to his BPPV. In a July 2021 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, the Veteran stated that his vertigo and migraines have both worsened and caused him to miss "too many" days of work. The Veteran underwent a VA examination for his BPPV in August 2021. The examiner stated that the Veteran was last employed in February 2020 but voluntarily quit because his migraines and vertigo caused him to miss too much work, about three days per month. He also indicated that he has never worked at one job for longer than two years because of his vertigo and migraines. Although the Veteran is currently in receipt of the maximum schedular evaluation available under Diagnostic Code 6204, the Board finds that his service-connected BPPV presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b). In this regard, the evidence shows that the Veteran's BPPV has caused marked interference with employment by causing him to miss a substantial amount of work. Therefore, referral to the Director, Compensation Service, for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b) is warranted. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) for the period prior to November 20, 2015 is remanded. For the period prior to November 20, 2015, the Veteran is currently in receipt of a 30 percent disability rating for migraines and a 30 percent disability rating for BPPV. Thus, he does not meet the schedular criteria for an award of TDIU for the period prior to November 20, 2015. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Board also notes that the Executive Director, Compensation Service denied an extraschedular TDIU in October 2020. The issue of entitlement to a TDIU for this period is therefore inextricably intertwined with the Veteran's pending claim for an extraschedular BPPV rating, as the outcome of that claim will directly affect whether he meets the schedular criteria for a TDIU for the period prior to November 20, 2015. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Consequently, the issue of entitlement to a TDIU for the period prior to November 20, 2015 is remanded. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran's updated VA treatment records, from March 2021 to the present. 2. After completing #1, submit the Veteran's claim to the Director, Compensation Service for extraschedular consideration of a higher rating for his service-connected benign paroxysmal positional vertigo. 3. After completion of #1 and #2, review the expanded record and readjudicate the issues of entitlement to a rating in excess of 30 percent for BPPV and entitlement to a TDIU for the period prior to November 20, 2015. If the benefits sought are not granted in full, furnish the Veteran with an appropriate Supplemental Statement of the Case (SSOC) and afford him an opportunity to respond. Thereafter, return the case to the Board for appellate review. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Pratt 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.