Citation Nr: 21068918 Decision Date: 11/15/21 Archive Date: 11/15/21 DOCKET NO. 09-37 753 DATE: November 15, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted from February 20, 2007. FINDINGS OF FACT 1. The record evidence shows that service connection currently is in effect for an acquired psychiatric disability, to include depression and posttraumatic stress disorder (PTSD), evaluated as 30 percent disabling effective May 7, 2007, and as 70 percent disabling effective August 7, 2014, migraine headaches, evaluated as 50 percent disabling effective February 20, 2007, degenerative disc disease of the lumbosacral spine with intervertebral disc syndrome and lumbar strain, evaluated as 10 percent disabling effective February 20, 2007, and as 40 percent disabling effective April 30, 2018, hypertensive cardiovascular disease, evaluated as 30 percent disabling effective March 11, 1999, left hip osteoarthritis, evaluated as 10 percent disabling effective February 20, 2007, and as 20 percent disabling effective April 30, 2018, hypertension, evaluated as 20 percent disabling effective November 26, 2003, right hip osteoarthritis, evaluated as 10 percent disabling effective February 20, 2007, and as 20 percent disabling effective April 30, 2018, right lower extremity radiculopathy of the sciatic nerve, evaluated as 20 percent disabling effective April 30, 2018, left lower extremity radiculopathy of the sciatic nerve, evaluated as 20 percent disabling effective April 30, 2018, patellofemoral pain syndrome of the right knee, evaluated as 10 percent disabling effective March 11, 1999, lateral instability, post-operative patellofemoral pain syndrome of the left knee, evaluated as 10 percent disabling from February 20, 2006, to October 1, 2018, left hip limitation of adduction, evaluated as 10 percent disabling effective April 30, 2018, right hip limitation of adduction, evaluated as 10 percent disabling effective April 30, 2018, surgical scars of the left knee, evaluated as zero percent disabling effective July 23, 2018, and post-operative patellofemoral pain syndrome of the left knee, to include left knee instability, evaluated as 20 percent disabling effective March 11, 1999, 100 percent disabling effective July 23, 2018, and as zero percent disabling effective October 1, 2018. 2. The record evidence shows that the Veteran's combined disability evaluation for compensation is 90 percent effective February 20, 2007, and 100 percent effective August 7, 2014; thus, he meets the schedular criteria for a TDIU throughout the appeal period. 3. Taken together, and after resolving any reasonable doubt in the Veteran's favor, the record evidence shows that his service-connected disabilities, alone or in combination, preclude his employability. CONCLUSION OF LAW The criteria for a TDIU have been met from February 20, 2007. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from December 1976 to May 1989. This appeal has a long and complicated procedural history. It comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision which denied the Veteran's TDIU claim. In an April 2021 decision, the Board remanded the Veteran's claim of entitlement to a TDIU prior to August 7, 2014, to the Director, Compensation Service (Director), for a decision on extraschedular entitlement to a TDIU. In a July 2021 decision, the Board observed that the Veteran's appeal had been bifurcated into separate Legacy appeal streams involving an increased rating for migraine headaches and a TDIU. The Board also granted a higher 50 percent rating effective February 20, 2007, for the Veteran's service-connected migraine headaches in this decision. While the Veteran's TDIU claim was no remand, the Agency of Original Jurisdiction (AOJ) concluded in an August 2021 memorandum to the record that the Board's July 2021 decision granting a 50 percent rating for migraines rendered the Board's April 2021 remand to the Director for consideration of extraschedular TDIU moot because the Veteran now met the schedular criteria for a TDIU throughout the appeal period. Later in August 2021, the Decision Review Operations Center (DROC) referred the extraschedular TDIU claim to the Director. The Director responded in September 2021 that this claim was being remanded back to the DROC to make the determination of whether the Veteran was entitled to extraschedular TDIU. The claim subsequently was returned to the Board without a decision on the extraschedular TDIU claim. The Board notes here that, normally, compliance by the AOJ with its remand directives is not discretionary. See generally Stegall v. West, 11 Vet. App. 268 (1998). In this case, however, a review of the record evidence supports the AOJ's August 2021 determination that, because the Veteran currently meets the schedular criteria for a TDIU throughout the appeal period, the Board's April 2021 remand for a decision from the Director on extraschedular TDIU is moot. In other words, the circumstances surrounding the Veteran's TDIU entitlement changed materially with the Board's July 2021 decision granting a 50 percent rating for service-connected migraine headaches. In other words, the Board's July 2021 decision rendered compliance by the AOJ with the April 2021 remand directives impossible. Accordingly, and especially in light of the decision below granting TDIU on a schedular basis, the Board finds that it was harmless error for the AOJ not to comply with the April 2021 remand directives. See also Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), rev'd sub nom., Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Entitlement to a TDIU The Board finds that the evidence reasonably supports granting the Veteran's claim of entitlement to a TDIU. He essentially contends that his service-connected disabilities, alone or in combination, preclude his employability. The Board agrees. The record evidence shows that service connection currently is in effect for an acquired psychiatric disability, to include depression and PTSD, evaluated as 30 percent disabling effective May 7, 2007, and as 70 percent disabling effective August 7, 2014, migraine headaches, evaluated as 50 percent disabling effective February 20, 2007, degenerative disc disease of the lumbosacral spine with intervertebral disc syndrome and lumbar strain, evaluated as 10 percent disabling effective February 20, 2007, and as 40 percent disabling effective April 30, 2018, hypertensive cardiovascular disease, evaluated as 30 percent disabling effective March 11, 1999, left hip osteoarthritis, evaluated as 10 percent disabling effective February 20, 2007, and as 20 percent disabling effective April 30, 2018, hypertension, evaluated as 20 percent disabling effective November 26, 2003, right hip osteoarthritis, evaluated as 10 percent disabling effective February 20, 2007, and as 20 percent disabling effective April 30, 2018, right lower extremity radiculopathy of the sciatic nerve, evaluated as 20 percent disabling effective April 30, 2018, left lower extremity radiculopathy of the sciatic nerve, evaluated as 20 percent disabling effective April 30, 2018, patellofemoral pain syndrome of the right knee, evaluated as 10 percent disabling effective March 11, 1999, lateral instability, post-operative patellofemoral pain syndrome of the left knee, evaluated as 10 percent disabling from February 20, 2006, to October 1, 2018, left hip limitation of adduction, evaluated as 10 percent disabling effective April 30, 2018, right hip limitation of adduction, evaluated as 10 percent disabling effective April 30, 2018, surgical scars of the left knee, evaluated as zero percent disabling effective July 23, 2018, and post-operative patellofemoral pain syndrome of the left knee, to include left knee instability, evaluated as 20 percent disabling effective March 11, 1999, 100 percent disabling effective July 23, 2018, and as zero percent disabling effective October 1, 2018. The record evidence also shows that the Veteran's combined disability evaluation for compensation is 90 percent effective February 20, 2007, and 100 percent effective August 7, 2014; thus, he meets the schedular criteria for a TDIU throughout the appeal period. See 38 C.F.R. § 4.16(a) (2020). Taken together, and after resolving any reasonable doubt in the Veteran's favor, the record evidence shows that his service-connected disabilities, alone or in combination, preclude his employability. For example, on VA examination in January 1992, the Veteran reported that he had worked at Auto Zone since May 1989. He also reported losing 4 months of work due to disability. He was unable to put much weight on his knees and had to leave work early due to his knees "hurting." His employer "work[s] with this problem." On VA neurological disorders examination in September 1999, the Veteran reported that, although he was employed as an auto parts salesperson, "he has had to leave work about 15 times in the past year because of the headaches." On VA joints examination in September 1999, he reported that his bilateral knee disabilities interfered with his job "because of the need for frequent walking." On VA neurological disorders examination in January 2005, the Veteran reported working out of his home selling alarm systems. He last worked full time in 1997. He missed 60 percent of his work due to his headaches and does not drive when he experiences a headache. On VA joints examination in January 2005, he again reported work selling alarm systems. "He becomes tired and his knees become sore seeing three to four appointments approximately per day." On VA hypertension examination in January 2005, he reported getting headaches after seeing 3 to 4 sales prospects per day. In statements on a January 2005 VA Form 21-8940, he asserted that his service-connected bilateral knee disabilities, bilateral hip disabilities, and migraine headaches all prevented him from securing or following any substantially gainful occupation. He reported that he currently worked full-time in sales and had been in this job since January 2004. He became too disabled to work in 2001. He also reported losing 65 percent of his work time to illness. He stated that he could not leave his home to perform his sales job, instead contacting customers by telephone, because of the pain from his service-connected migraine headaches. In statements on a February 2005 VA Form 21-4192, the Veteran's current employer stated that he had been employed since January 2004 in sales and worked 20 hours a week. The employer also stated that the "Veteran is not working at this time because of...medical problems." The Veteran asserted in statements on a February 2007 VA Form 21-4138 that he had not worked since 2006. He also stated that his service-connected hypertension, lumbosacral spine disability, bilateral knee disabilities, and bilateral hip disabilities, and migraine headaches all prevented him from working. He asserted in statements on a February 2007 VA Form 21-8940 that he last had worked full time in 1997. His service-connected disabilities had affected his full-time employment in 2001. He became too disabled to work in 2006. He reported working 50 hours a week as a store manager for an Auto Zone store from 1989 to 1997 and losing 6 months of time to illness. He only earned $800.00 in the previous 12 months in income. He had zero current monthly income. He left his last job because of his disability. He had not tried to obtain employment since becoming too disabled to work. In a September 2007 VA Form 21-4192, the Veteran's former employer stated that he had been employed from February 2005 to February 2007 in sales. The Veteran had not lost any time in the 12 months preceding his last date of employment due to disability. He had worked on sales commissions "and set [his] own hours and work pace." The employer also stated that the Veteran "would rarely work. He stopped showing up for work. He is not eligible for rehire [because he is] not a good employee." On VA neurological disorders examination in October 2007, the Veteran reported he last worked in February 2007 selling burglar alarm systems. "He did it regularly and said he missed about two months out of a year because of headaches." Following this examination, the VA examiner opined that "the Veteran's headaches would make work, either sedentary or active, difficult, but would not, in and of themselves, preclude employment." On VA joints examination in August 2008, the Veteran reported that he had not worked in 2 years due to low back pain. He spent 4 hours in a chair 3 4 times per week "relaxing because of back pain." He was capable of riding in a riding lawnmower and working and doing repairs around his house. Following this examination, the VA examiner opined that the Veteran was incapable of employment as a door-to-door salesperson. He was incapable of lifting or carrying anything which weighed more than 25 pounds, climbing ladders, or climbing more than 1 flight of stairs at a time. He was capable of sedentary employment. On VA headaches Disability Benefits Questionnaire (DBQ) in July 2014, the Veteran reported that "he is unable to work secondary to his level of discomfort" when experiencing a migraine headache. On VA back (thoracolumbar spine) conditions DBQ in October 2016, the VA examiner stated that the functional impact of the Veteran's service-connected lumbosacral spine disability was "poor tolerance for general physical work, especially heavy physical work involving lifting or twisting motions. Also, poor tolerance for extended walking or driving limits options for many jobs." On VA headaches DBQ in October 2016, the VA examiner stated that the Veteran had visited the emergency room once for migraines in the previous 3 years which indicated that he likely suffers occasional severe migraine which interfere with his ability to work. On VA hip and thigh conditions DBQ in October 2016, the VA examiner stated that the functional impact of the Veteran's service-connected bilateral hip disabilities was, "Poor tolerance for extended walking, especially on stairs, limits tolerance for jobs that require walking long distances over the course of the day, and poor range of motion inhibits squatting and stair climbing ability." The October 2016 VA heart conditions DBQ examiner concluded that the Veteran's service-connected hypertensive cardiovascular disease had no functional impact. In statements on a May 2017 VA Form 21-8940, the Veteran asserted that multiple service-connected disabilities precluded his employability. His disability affected his full-time employment in 2001. He last worked full-time in February 2017. He became too disabled to work in 2004. He reported working 40 hours a week in a janitorial job since May 2013 and lost "1x per week" due to illness. His monthly earned income was $1370.00. He also stated that, although he had worked in sales from 2004 to 2009, "I missed a lot of time from work, especially during the last three years of employment, due to my worsening disabilities. I experienced severe migraines two to three times per week and they were completely incapacitating." He stated that he stopped working for 3 years after leaving this job "to focus on my health and find a combination of medications that might allow me to return to work." He stated further that his service-connected migraine headaches, bilateral knee disabilities, and hypertensive cardiovascular disease all interfered with his janitorial job. He concluded: I am only able to maintain my [current] employment because accommodations have been provided to me by my employer due to my service-connected [migraine] headaches, cardiovascular disease, and left knee disabilities. My employer allows me to miss work as needed, so long as I can complete my work when I am in the building. In a July 2017 opinion, a private vocational consultant concluded that the Veteran is unable to secure and follow substantially gainful employment due to his service-connected disabilities. This consultant based her opinion on what the Veteran reported to her about the occupational limitations he experienced as a result of his service-connected disabilities. On VA hip and thigh conditions DBQ in May 2018, the functional impact of the Veteran's service-connected bilateral hip disabilities was: [The] Veteran reports daily stiffness and pain in his bilateral hips that affects his daily life. [He] reports stiffness and soreness within walking, standing, or sitting within forty minutes...relative inability to bend because of severe pain...difficulty driving because of pain...[and] difficulty sleeping because of pain....[He] can no longer run, play basketball, shop with his wife or hang out with his kids. [He] reports increased moodiness and irritability because of his bilateral hip issues....[He has] hip flares where he is unable to do anything because of the hip pain at least once a week. These episodes last 1-2 days. [He] reports [that] he is unable to work because of headaches with joint pain in the back, knees, and hips. In a May 2018 addendum opinion, the VA clinician who conducted the Veteran's VA headaches DBQ that same month opined that his service-connected headaches "only requires significant intervention...occasionally. This is not indicative of severe economic loss from the headaches by themselves." On VA back (thoracolumbar spine) conditions DBQ in May 2018, the functional impact of the Veteran's service-connected lumbosacral spine disability was: [The] Veteran reports daily stiffness and pain in his back that affects his daily life...stiffness and soreness within walking, standing, or sitting within forty minutes...[and] relative inability to bend or twist because of severe pain. [He] has difficulty driving because of pain...[and] difficulty sleeping because of pain, even with medication and TENS unit...[He] can no longer run, play basketball, shop with his wife or hang out with his kids...[He] reports back flares where he is unable to do anything because the back locks up at least once a week. These episodes last 1-2 days. [He] reports [that] he is unable to work because of headaches/joint pain. On VA knee and lower leg conditions DBQ in March 2019, the functional impact of the Veteran's service-connected bilateral knee disabilities was, "Pain and lack of endurance impair kneeling and stair climbing." On VA headaches DBQ in December 2019, the VA examiner noted that the Veteran has characteristic prostrating attacks of headache pain once every month. His headaches were very prostrating and prolonged attacks of migraines pain were productive of severe economic inadaptability. He was working as a store manager and had lost 2-4 weeks of work in the previous 12 months due to his headaches. "[He] is unable to concentrate and focus to complete work-related tasks such as ordering supplies, making schedules, and interacting with employees secondary to his" headaches. Consistent with the Veteran's lay assertions, the record evidence shows that his service-connected disabilities, alone or in combination, preclude his employability and entitle him to a TDIU. It is undisputed that he met the schedular criteria for a TDIU throughout the appeal period. See 38 C.F.R. § 4.16(a). He has reported consistently that his service-connected disabilities interfered with his prior employment in sales and as a store manager. He also has reported consistently that these disabilities preclude his employability, although he reported that he was working as a store manager at his most recent VA headaches DBQ in December 2019. The Board also notes that he has not reported consistently his post-service employment history, the date(s) when he stopped working, or the service-connected disabilities which precluded his employability. For example, he initially reported on a January 2005 VA Form 21-8940 that he had worked full time in sales since 2004 but became too disabled to work in 2001. He then reported on a February 2007 VA Form 21-8940 that he last worked full time in 1997 and became too disabled to work in 2006. In a September 2007 VA Form 21-4192, a former employer stated that the Veteran simply stopped showing up for work and was not a good employee. Most recently, in a May 2017 VA Form 21-8940, the Veteran stated that his last full-time job ended in February 2017, he became too disabled to work in 2004, and he currently worked full time with accommodations from his employer. Despite these inconsistencies in what the Veteran reported concerning his post-service employment history and the impact of his service-connected disabilities on his employment, the medical evidence, taken together, reasonably supports finding that he is entitled to a TDIU. For example, VA examinations dated in 2005 show that he reported missing 60 percent of his work due to his service-connected migraine headaches. The October 2007 VA headaches examiner stated that the Veteran's service-connected migraine headaches made work difficult. The August 2008 VA joints examiner concluded that the Veteran was incapable of working as a door-to-door salesperson due to his bilateral knee disabilities although he was capable of sedentary work. The Veteran reported being unable to work due to his headaches at his July 2014 VA headaches examination. The October 2016 VA back (thoracolumbar spine) DBQ examiner concluded that the Veteran's service-connected lumbosacral spine disability "limits options for many jobs" due to his problems walking or driving as a result of this disability. The October 2016 VA headaches DBQ examiner found that the Veteran experienced occasionally severe migraine headaches which interfered with his ability to work. VA hip and back examinations in May 2018 documented his complaints of daily low back and bilateral hip pain and stiffness, difficulty driving and sleeping due to low back and bilateral hip pain, and flare-ups of low back and bilateral hip pain once a week lasting for 1 2 days at a time where he was unable do anything. The December 2019 VA headaches DBQ examiner found that the Veteran experienced very prostrating and prolonged migraines which resulted in severe economic inadaptability. These findings on VA examinations conducted during the appeal period are consistent with the findings in the private vocational consultant's July 2017 report which is based largely on what the Veteran reported to her concerning the functional impact of his service-connected disabilities on his employability. In summary, and after resolving any reasonable doubt in the Veteran's favor, the Board finds that the criteria for a TDIU have been met. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael T. Osborne, 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.