Citation Nr: 21075253 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 12-19 150 DATE: December 20, 2021 ORDER A total disability due to individual unemployability (TDIU) rating is granted, subject to the laws and regulations governing the awards of monetary benefits. FINDING OF FACT The weight of the evidence shows that it is at least as likely as not that the Veteran is unable to maintain a substantially gainful employment due to the functional limitations imposed by her service-connected disabilities. CONCLUSION OF LAW The criteria for a TDIU rating have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran honorably served on active duty from May 1974 to April 1975. In a May 2009 rating decision, the Regional Office (RO) granted service connection for migraine headaches and sinusitis, evaluated as noncompensable and effectuated from May 2008. The Veteran appealed the assigned ratings. In November 2016, the Veteran testified at a Board hearing, a transcript of which is of record. In July 2017, the Board remanded the claim for a medical examination. In August 2018, the Board granted the rating increases for migraine headaches at 50 percent and for sinusitis at 10 percent. Upon further considering the Veteran's TDIU claim as part and parcel of her increased ratings claim, the Board found that her combined disability rating did not meet the regulatory rating thresholds for a schedular TDIU consideration and remanded the claim for the RO to consider whether the claim should be referred to the Director of Compensation Service for assigning a TDIU on an extraschedular basis. In November 2019, the Director denied the claim and the appeal was returned to the Board. In April 2020, the Board denied the claim. The Veteran appealed to the United States Court of Appeals for Veterans' Claims (Court). In December 2020, the Court granted a joint motion for remand (JMR), vacating and remanding the April 2020 Board's decision. The parties to the JMR agreed that, in denying the Veteran's TDIU claim, the Board appears to have deferred to the Directors decision, while largely omitting the application of the pertinent laws and regulations to the Veteran's circumstances. In accordance with the Court's directives, upon considering all evidence of record afresh, particularly the previously unavailable vocational assessment from Vargas Vocational Consulting, viewed in light of pertinent laws and regulations, the Board has found that the criteria for a TDIU rating award have been met. It is the well-established VA policy that all veterans who are unable to secure and follow a substantially gainful occupation due to service-connected disabilities shall be rated totally disabled, even if the combined schedular disability rating is less than total. See 38 C.F.R. § 4.16(b). As such, a total rating is assigned, so long as the evidence of record shows that an impairment of mind and/or body imposed by service-connected disabilities is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15. To that end, the ultimate question before the Board is whether or not the Veteran's service-connected disabilities render her incapable of performing physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In making such a determination, the Board considers the impact of the Veteran's service-connected disabilities on her physical and mental ability to perform the essential work-related tasks, viewed in light of her vocational skillset as shown by such factors as her education, vocational training, and employment history. See Ferraro v. Derwinski, 1 Vet. App. 326 (1991). In this case, the November 2016 Board hearing, the Veteran testified that she last worked full-time in permanent position as a teacher in 1996 and since then had been unable to maintain a substantially gainful employment due to the functional impact of her migraine headaches and sinusitis. She explained that her migraines about once a week affected her the "day before, day when [she is] totally down and then the day after." During the attacks, she experiences vertigo, hypersensitivity to light, sound, and smell, and often get sick or nauseated. During these weekly migraine attacks, which disable her for several days at a time, she does not leave the house or drive because her migraine attacks are completely prostrating, and she is unable to do anything. These reports are wholly consistent with the August 2017 examination report reflecting that she "cannot function during a headache." The examiner notes that she becomes very nauseated on the first day and on day two she develops the headache and lies down in a quiet, dark room due to sensitivity to light and sound. As reflected in a November 2021, based on the review of over 1400-page claims file and telephonic interview with the Veteran, the vocational expert opined that the evidence of record depicts a disability picture incongruent with the requirements of competitive employment. In sum, the vocational expert explains that the duration, frequency, and severity of the Veteran's migraine symptoms lasting 1-3 day per week when she has to lie down in a dark quiet place in addition to exacerbations by sinusitis attacks lasting as long as 10 days four times per year significantly impact her vocational abilities to such a degree that she is unable to meet the basic pace, productivity, and attendance requirements of even an unskilled sedentary work, let alone effectively applying her education and experience as a teacher. With that, the vocational expert concluded that the Veteran's reduced abilities ranging from her inability remain focused on tasks to complete, her inability to produce even a minimal amount of work on a consistent and reliable basis, and her inability to meet the regular attendance expectations, ultimately render her an underproductive and unreliable employee, which substantially exceeds tolerance levels of most employers. The Board agrees. By implication, the Board finds that it is at least as likely as not that the Veteran is unable to maintain a gainful occupation on account of the functional limitations imposed by her service-connected disabilities, which satisfies the criteria for awarding a TDIU rating. Accordingly, a TDIU rating is granted. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alex Bardin, Associate 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.