Citation Nr: 21068878 Decision Date: 11/15/21 Archive Date: 11/15/21 DOCKET NO. 15-03 709A DATE: November 15, 2021 ORDER An effective date prior to August 2, 2016, for the award of a total disability rating based on individual unemployability (TDIU) is granted. REMANDED Entitlement to an increased evaluation for migraines on an extraschedular basis only is remanded. A separate compensable rating for a hand and arm disability (other than service-connected residuals of fractured right fifth finger with scar) associated with service-connected cognitive residuals of traumatic brain injury (TBI) is remanded. A separate compensable rating for a seizure disorder associated with service-connected cognitive residuals of TBI is remanded. FINDING OF FACT The Veteran's service-connected conditions reasonably precluded gainful employment consistent with his education and occupational experience prior to August 02, 2016. CONCLUSION OF LAW The criteria for an effective date prior to August 02, 2016 for the grant of a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1985 to March 1993. He was scheduled for a hearing before the Board in September 2018; however, he failed to report to this hearing and has not requested that the hearing be rescheduled. In November 2018, the Board remanded this case for additional development and in a July 2020 decision the Board denied the present claims. Thereafter, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court) and the claim was subject to a joint motion for remand (JMR) in May 2021. 1. An effective date prior to August 2, 2016, for the award of a total disability rating based on individual unemployability is granted. 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 as totally disabled. 38 C.F.R. §4.16. Substantially gainful employment is that employment that is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the veteran resides. Moore v. Derwinski, 1 Vet. App. 356 (1991). Under the applicable criteria, total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total where, if there is only one disability, the disability is rated at 60 percent or more, or where, if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §4.16(a). Except as otherwise provided, the effective date of an award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase shall be fixed in accordance with the facts found, but shall be no earlier than the date of receipt of the application thereof. 38 U.S.C. §5110(a). The statutory provision is implemented by regulation which provides that the effective date for an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. §3.400. In determining an effective date for an award of a TDIU, VA must make two essential determinations. It must determine (1) when a claim for TDIU was received, and (2) when a factually ascertainable increase in disability occurred so as to warrant entitlement to TDIU. 38 C.F.R. §§3.155, 3.400(o)(2). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his employment and educational history. 38 C.F.R. §§ 3.321(b), 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rather, the issue must be referred to the Director of Compensation Service for such assessment in the first instance. Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015). Thereafter, the Board has jurisdiction to review the entirety of the Director's decision denying or granting an extraschedular rating and is authorized to assign an extraschedular rating when appropriate. Kuppamala, 27 Vet. App. at 457. For VA purposes, the term unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2,317 (Jan. 21, 1992). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; VanHoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the 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 or she can find employment. VanHoose, 4 Vet. App. at 363. The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). The Court of Appeals for Veterans Claims (Court) recently issued a decision concerning TDIU. The Court noted that TDIU claims have two components that must both be met for a grant of TDIU, both economic and non-economic. As noted above, the economic consideration is a determination if the Veteran has earned annual income that does not exceed the poverty threshold for one person. The second component is determining whether a Veteran can secure and follow a substantially gainful occupation, attention must be given to the Veteran's history, education, skill, and training; whether the Veteran has the 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 to include factors including but not limited to the Veteran's limitations concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and whether the Veteran has the mental ability to perform the activities required by the occupation at issue to include factors including but not limited to the Veteran's limitations, if any, concerning memory, concentration, 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, 73 (2019). The Veteran's claim for TDIU arises out of a claim received on March 24, 2014. The Veteran has been awarded entitlement to TDIU and assigned an effective date of August 2, 2016, based on a finding that this was the earliest date that he met the schedular criteria for TDIU based on the combined rating of his service-connected disabilities (including migraine headaches) and the evidence showed that his service-connected migraines rendered him unemployable. As for whether a still earlier effective date is warranted for a TDIU rating, prior to August 2, 2016, the Veteran's service-connected disabilities met the schedular requirements for a TDIU under 38 C.F.R. §4.16(a ) for the period from March 24, 2014, through August 1, 2016. Specifically, the combined rating for the Veteran's service-connected disabilities was at least 70 percent from March 2014, with PTSD as the highest rated disability at 50 percent. Addressing the economic component of TDIU, the probative lay and medical evidence establishes that the Veteran stopped working in September 2014. The November 2016 application for compensation based on unemployability indicated that the Veteran ceased working as a mail carrier for the United States Postal Service until September 06, 2014. Addressing the noneconomic component of TDIU, the Veteran has a high school degree and completed two years of college. The Veteran did not have any other forms of training or education. Prior to working as a mail carrier, the Veteran was a manager at a company for four years. In January 2011, a VA examiner noted that Appellant's service-connected residuals of fractured right fifth finger with scar led to "trouble with typing." In an August 2013 VA treatment record, the Veteran reported that he was fired from his job as a manager due to his chronic anger issues. In an August 2013 Social Security Administration evaluation, it was noted that the Veteran experienced some difficulties with activities of daily living due to mild social difficulties and moderate difficulties maintaining concentration, persistence, and pace. Ultimately, however, it was determined that the Veteran was not disabled and was able to sit or stand for six to eight hours a day. June 2014 VA records indicated that the Veteran requested a letter from his physician that would explain to an employer that he was only capable of light work such as answering phone calls, opening mail, talking on the phone, stuff envelopes and make appointments. The physician noted that the Veteran could not lift anything without approval from a physician and that he should avoid prolonged sitting or any other prolonged positions to avoid aggravating his spine condition. December 2014 VA records indicated that the Veteran experienced three to four migraines per week. The Veteran underwent VA examinations to evaluate his PTSD and TBI conditions in June 2014. The examiner noted that the Veteran was functionally impaired because is headaches caused him to be unable to work for certain periods of time. The Veteran was also found to suffer from occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. In December 2014 the Veteran was provided with a VA examination to evaluate his spine. The Veteran determined that due to the Veteran's spine condition, he could not twist or bend repeatedly at the waist or perform any heavy lifting. The Veteran underwent several more VA examinations in May 2016. The functional impact of the Veterans scars was that he had trouble grasping hard or doing repetitive motions with his right hand due to flexion cramps. He was also unable to lift or manipulate much weight. In an examination to evaluate the Veteran's sinusitis, the examiner noted that when the Veteran had an acute attack, he needed to miss work to seek treatment from a doctor. The Veteran then had his spine condition evaluated once again. The Veteran reported the functional impact of his condition, noting that he could not lift more than 20 pounds or repetitively lift over 10 pounds. He noted that he could not perform physical work for over 30 to 45 minutes. Even with light work he needed to sit afterwards, and he could not walk for more than half an hour. In regard to the Veteran's migraines, it was noted that the Veteran had to rest in a quiet, dark room for several hours with the onset of a migraine. The Veteran was provided with a hearing before the RO in April 2016. It was noted that the Veteran could no longer drive due to his medications for his TBI. The Veteran reported that he had migraines that lasted for three to four days. His spouse also reported that the Veteran had withdrawn from all social situations. Based on review of the totality of the evidence, the Board finds that a TDIU is warranted prior to August 2, 2016. The evidence in this matter shows that, although the Veteran attempted to obtain employment and additional education, his service-connected conditions affected his ability to obtain and maintain gainful employment. It was noted that the Veteran could not perform physical duties due to his lumbar spine condition and sedentary work was also not possible as it was noted in June 2014 VA treatment records that the Veteran could not sit for prolonged periods. And while it was noted in the June 2014 records that the Veteran believed himself capable of light duties, it was noted in the January 2011 and May 2016 VA examinations that he would have difficulty typing and he would also not be able to perform repetitive tasks with his hand. This effectively excludes most clerical duties. It was also indicated in VA records and examinations that the Veteran's service-connected migraine condition often incapacitated him for hours at a time several times a week. Given his own personal statements regarding the severity of his disabilities, as well as the medical evidence of record, the Board finds that he was rendered incapable of maintaining gainful employment prior to August 02, 2016. REASONS FOR REMAND 1. Entitlement to an increased evaluation for migraines on an extraschedular basis only is remanded. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), which issued an order in May 2021 granting a Joint Motion for Partial Remand (JMPR) filed by the Veteran and VA's Office of the General Counsel ("the parties") earlier that month. The Court's order vacated the Board's decision to the extent that the Board did not consider the reasonably raised issue concerning whether referral to the Director of the VA Compensation and Pension Service for extraschedular consideration was warranted. The parties to the JMPR concurred that the portions of the Board's decision should not be disturbed where it denied entitlement to a disability rating in excess of zero percent prior to August 02, 2016 and in excess of 10 percent after August 02, 2016 for migraines. The Court's order remanded the matter for action consistent with the terms of the JMPR. The Court noted that the Veteran complained of symptoms of vertigo and loss of awareness. As the April 2020 VA examiner related these symptoms to the Veteran's migraines and the symptoms were not listed in the diagnostic code for migraines, the Court determined that the issue of referral for extraschedular consideration should have been analyzed. Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The first element of extraschedular consideration requires a finding that the evidence "presents such an exceptional or unusual disability picture that the available schedular evaluations for that service-connected disability are inadequate." See id. at 115. In order to determine whether a disability is "exceptional or unusual," there "must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability." Id. "[I]f the [rating] criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, [and] the assigned schedular evaluation is, therefore adequate, and no referral is required." Id. The Veteran asserts that his symptoms of vertigo and loss of awareness warrants an increased rating on an extraschedular basis. The Veteran reported having dizzy spells and occasionally reported loss of awareness. The Veteran also reported a feeling of drunkenness that accompanied his headaches followed by occasional syncopal episodes. In a November 2016 VA neurology record, the physician noted that the Veteran's vertigo was also associated with syncopal spells. The plain language of DC 8100, under which the Veteran's migraines are evaluated, does not appear to contemplate the symptoms the Veteran has reported. In January 2011 medical records it was noted that the Veteran experienced vertigo twice a week. In December 2014, VA records it was noted that the Veteran's vertigo episodes had increased, and the accompanying falls had increased as well. The Veteran stated that he felt as if he was severely intoxicated and noted that the vertigo episodes happened two to three times a month. In November 2016 VA treatment records the Veteran complained of vertigo and accompanying syncopal episodes. He described an episode when he was in the shop and a headache began. The Veteran stated that as he walked home, he began feeling drunk, had blurred vision, was unsteady, and fell onto his buttocks. He awoke two to three minutes later and was able to find his way home and lay down. The headache was mostly gone in two to three hours but for the following week the Veteran suffered from headaches and an unsteady, drunk feeling. The following week the Veteran experienced another headache and he felt drunk again and his vision narrowed. The Veteran fell and lost consciousness for a minute or two. The Veteran again managed to head home and fell asleep. The Veteran reported more dizziness and loss of coordination in January 2017 VA records. In April 2020 VA records, the Veteran reported spells of vertigo and loss of awareness. The Board finds the evidence sufficient to show that not all of the Veteran's reported symptoms are contemplated by the rating schedule and his symptoms may have caused marked interference with employment. Additionally, his symptoms could be attributed to his service-connected TBI. Though the Veteran has not been employed since September 2014, the medical records indicate that the severity of the Veteran's symptoms associated with his migraine would have caused marked interference with any kind of gainful employment. The frequency and severity of the Veteran's vertigo, loss of awareness, and accompanying syncopal episodes indicate that there would be a marked interference of employment if these symptoms are attributed to his service-connected migraines. Thus, referral for extraschedular consideration is warranted. 2. A separate compensable rating for a hand and arm disability (other than service-connected residuals of fractured right fifth finger with scar) associated with service-connected cognitive residuals of traumatic brain injury (TBI) is remanded. 3. A separate compensable rating for a seizure disorder associated with service-connected cognitive residuals of TBI is remanded. The Board finds that remand is required for an adequate VA opinion. In denying the Veteran separate compensable ratings for a hand and arm disability and a seizure disorder, the Board relied entirely on an April 2020 VA examination opinion. In a July 2020 Board decision, a separate compensable rating for a hand and arm disability was denied as the examiner from the April 2020 examination denied that there was any remaining diagnosable disability. The examiner disagreed with a 2017 examination in which a different examiner diagnosed apraxia. The April 2020 examiner noted that the diagnosis of apraxia was inconsistent with the evidence of record because the Veteran did not exhibit hand tremors. The April 2020 examiner, however, failed to address evidence of record indicating that the Veteran did have hand tremors. A July 2016 treatment record indicated that the Veteran's hand tremors were worsening and noted an action/postural tremor. The VA examiner from the April 2020 examination also determined that the Veteran did not have a diagnosable seizure disorder. The examiner stated that there was no pathology in the claims file to support a diagnosis, referencing prior neurological and cardiac workups that failed to show seizures. It is now noted, however, that the Board and the examiner failed to address pertinent evidence of record. In October 2015, a VA neurology provider opined that the Veteran had probable epileptic seizures. The Veteran also had another possible seizure according to July 2016 VA records. A December 2016 VA examiner diagnosed the Veteran with a seizure disorder, noted that the Veteran's seizures had been witnessed, and determined that the Veteran's needed medication to control the condition. Because the examiner did not address pertinent medical evidence of record when concluding that the Veteran did not have a hand and arm disability and a seizure disorder, the April 2020 opinions are inadequate for adjudication purposes. A remand is needed to obtain an additional VA opinion. The matters are REMANDED for the following action: 1. Forward the Veteran's migraine claim to the Director of Compensation Service for consideration of an extraschedular rating in accordance with 38 C.F.R. § 3.321(b)(1) for his service-connected migraines. The Director is asked to determine whether the Veteran's complaints of vertigo, loss of awareness, and accompanying syncopal episodes are attributed to his migraines to possibly warrant extraschedular consideration. 2. Schedule the Veteran for an examination by an appropriate clinician to address the nature, severity, and etiology of any hand and arm disability and any seizure disorder. The examiner must opine whether it is at least as likely as not that the hand and arm disorder and seizure disorder are residuals of the service-connected traumatic brain injury. The examiner must address the July 2016 VA record noting hand tremors, October 2015 VA records noting possible epileptic seizures, July 2016 VA records noting a possible seizure, and the diagnosis of a seizure disorder by a VA examiner in December 2016. A complete, well-reasoned rationale must be provided for any opinion offered. If any requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board AK 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.