Citation Nr: A21020437 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 200529-90401 DATE: December 22, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, he is unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU due to service-connected disabilities have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty from August 1993 to May 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2020 rating decision. In the May 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. The Veteran testified before the undersigned Veterans Law Judge in August 2021 at a virtual Board hearing. A transcript of this hearing has been associated with the claims file. Entitlement to a TDIU due to service-connected disabilities is granted. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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). In arriving at a conclusion, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. A total disability rating may be assigned when the schedular rating is less than 100 percent where a Veteran 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, that disability is rated 60 percent or more, or if there are two or more disabilities, there shall be at least one disability rated 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 Veteran has established service connection for migraine headaches, rated 50 percent disabling; residuals of right ankle sprain, rated 20 percent disabling; residuals of left ankle sprain, rated 20 percent disabling; residuals of right fifth distal phalanx fracture and extensor tendon rupture, rated 10 percent disabling; functional non-organic gastrointestinal disorder, rated 10 percent disabling; status post tear of left anterior cruciate ligament (ACL) and partial tear of medial and lateral meniscus associated with residuals of left ankle strain, rated 10 percent disabling; painful scar of the left ankle, rated 10 percent disabling; left distal sural nerve neuropathy associated with residuals of left ankle strain, rating 10 percent disabling; residuals of right ear laceration, rated noncompensably disabling; and left knee scar, rated noncompensably disabling. The Veteran's combined rating for compensation purposes is 80 percent beginning August 4, 2006. 38 C.F.R. § 4.25. Therefore, he has met the threshold criteria for a TDIU during the pendency of the appeal period beginning February 2, 2020. 38 C.F.R. § 4.16(a). The remaining inquiry is whether he is unable to secure or follow substantially gainful occupation due solely to service-connected disabilities. In February 2020, the Veteran filed an application for TDIU. He expressed an inability to secure or follow substantially gainful employment due to his migraine headaches. He indicated that his disabilities first began to effect full-time employment in January 2015. He became too disabled to work in February 2019. He last worked full-time as a real estate agent, beginning in January 2010. He completed high school and had not had any training since he became too disabled to work. VA examinations from December 2013 marked "no" on the question as to whether the Veteran's scars and peripheral neuropathy disabilities had any impact on the Veteran's ability to perform work. No accompanying reasoning was offered. The December 2013 VA examination for ankle conditions indicated that the Veteran's service-connected ankle disability results in a restriction of the Veteran's weightbearing activities, including any prolonged weightbearing. A May 2020 VA examination for headaches, including migraines, reflects that the Veteran experiences migraines three to four times per week, lasting one to two days at a time. The Veteran described his migraine pain as a "throbbing, pulsating headache" that starts above his left eye, travels to the top of his head, and eventually spreads to the entire head. The Veteran indicated that he takes medication daily for his migraine condition. He also reported that often, rest in a quiet, dark, room provides very little relief. The VA examiner noted that the Veteran also experiences non-headache symptoms, including nausea, vomiting, sensitivity to light, and sensitivity to sound. The VA examiner confirmed that the Veteran suffered from very prostrating and prolonged attacks of migraine pain productive of severe economic inadaptability. During the examination, the Veteran reported that he has been unable to work as a realtor since 2015 due to his migraine headaches, which have worsened over the past year and a half. During the August 2021 Board hearing, the Veteran testified that during his migraines, his sensitivity to noise and light is very intense and stated that "anything is like screaming to me in my head." The Veteran stated that when he gets a migraine, he becomes nauseous and vomits towards the end of the migraine episode, which he indicated is usually on the second day. The Veteran reported that he frequently has migraines, indicating he gets them "back to back" and that he will often have one "for two to three days, not have it for a day or two, or it could come right back, in 24 hours... so once I have them, it's hard for me to do anything[.]" The Veteran testified that in 2015, he was selling real estate, which provided him the flexibility of creating his own schedule; however, his migraines worsened, and as a result he was unable to perform certain parts of his job (inspections, closings, etc.). Further, the Veteran testified that he would miss deadlines for sales because he was never aware of when his migraines would hit. The Veteran stated that "they were just starting to come so often that I just I couldn't do it anymore. I couldn't meet the deadlines. I couldn't, you know, be a real estate agent and give whoever my full attention because I could be down a couple, two, or three days." The Veteran also stated that he has not tried to obtain employment since 2015 because he is skeptical that anyone would hire him knowing how many days of work, he may have to miss due to his migraine disability. Following the August 2021 Board hearing, the Veteran submitted two lay statements from family members attesting to their observations regarding the severity of his service-connected migraine disorder. The Veteran's spouse stated that "[i]t is near impossible to plan or count on [the Veteran] being able to do/participate in any function or even day to day activities, let alone a work schedule. We cannot rely on him for rides for our youngest child, forget about being present for any kind of work schedule, as his migraines are unpredictable. He was forced to stop doing real estate, which he really enjoyed, as he was no longer able to devote the deserved time and attention to his clients." Resolving all doubt in favor of the Veteran, the Board finds the Veteran experiences functional limitations, due to his service-connected disabilities, primarily his service-connected migraines, that preclude substantially gainful employment. The Veteran competently reported, and medical evidence reflects, that his service-connected migraine disability impacts his ability to work in several different ways, including his ability to sit and stand for extended periods and to effectively complete work tasks due to frequent bouts of debilitating pain. The Board finds that such limitations would impact the Veteran's ability to perform all types of work as they effect both his ability to perform physical and mental tasks required to sustain substantial gainful employment. Moreover, such limitations essentially erode any occupations that would otherwise be available to the Veteran based on his education level and prior work history. The Board notes that the ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Affording the Veteran all benefit-of-the-doubt, the Board finds that he is unable secure or follow substantially gainful employment due to his service-connected disabilities. Accordingly, the Veteran's claim for a TDIU is granted. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. M. Lowman, 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.