Citation Nr: 21005532 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 18-54 022 DATE: February 1, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU), to include on an extraschedular basis, prior to February 22, 2019 is denied. A TDIU on an extraschedular basis from February 22, 2019 is granted, subject to the rules and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. Prior to February 22, 2019, the Veteran’s service-connected disabilities did not render him unable to secure or follow substantially gainful employment. 2. From February 22, 2019, the evidence is at least in equipoise as to whether the Veteran's service-connected disabilities rendered him unable to secure or follow substantially gainful employment. CONCLUSIONS OF LAW 1. Prior to February 22, 2019, the criteria for an award of a TDIU on an extraschedular basis were not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16(b). 2. From February 22, 2019, the criteria for an award of a TDIU on an extraschedular basis have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1963 to July 1965. In January 2020, the Board remanded the current claim for additional development. Entitlement to a TDIU on an extraschedular basis. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § § 3.340(a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § § 4.16(a). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. The Board must evaluate whether there are circumstances in the veteran’s case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU. 38 C.F.R. §§ 3.341(a), 4.19; see Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § § 4.16(b). During the applicable appeal period, the Veteran was service-connected for conversion reaction manifested by headaches (30 percent prior to May 23, 2016 and 50 percent from May 23, 2016), scalp scar with alopecia (10 percent), tinnitus (10 percent), hemorrhoids (0 percent), and bilateral hearing loss (0 percent). As there is not one disability rated at 60 percent or higher, or one disability rated at 40 percent or more and combined rating of at least 70 percent, the threshold minimum percentage rating requirements for the assignment of a TDIU have not been met. The Board notes, however, that even though the Veteran does not meet the schedular criteria for consideration of a TDIU, consideration must still be given as to whether a TDIU may be granted on an extraschedular basis. 38 C.F.R. § 4.16(b). Entitlement to a TDIU on an extraschedular basis must be determined in the first instance by VA’s Director of Compensation Service. Id. As discussed further below, the claim has already been referred to the Director of Compensation Service (Director) for extraschedular consideration. Although VA is required to obtain the Director's decision before awarding extraschedular TDIU benefits in the first instance, the Board is not bound by the Director's decision or otherwise limited in its scope of review that determination. Wages v. McDonald, 27 Vet. App. 233, 236-38 (2015) (citing 38 U.S.C. § 511(a), 7104(a); 38 C.F.R. § 4.16(b)). Therefore, the Board will review the Director’s determination de novo. The record indicates that the highest level of education the Veteran has obtained was a freshman in high school. He also reported working as a pipe fitter at a naval shipyard from 1966 to 1991. See April 2020 Veterans Application for Increased Compensation Based on Unemployability. The Veteran underwent a VA examination for his migraines in July 2015 and despite symptoms of flare-up pulsating or throbbing head pain that lasted less than one day, there were no prostrating attacks of headache pain and no functional impairment was noted. The same July 2015 VA examiner also evaluated the Veteran’s hemorrhoids and scalp scar and indicated that the Veteran had hemorrhoids with minimal rectal itching/bleeding and a scalp scar measuring 6 centimeters (cm) by 2 cm, with no functional impairment. In February 2017, the Veteran underwent a VA examination to evaluate his tinnitus and bilateral hearing loss. The examiner documented functional impairment consisting of difficulty hearing others such that he must read people’s lips and ask them to repeat themselves. The examiner also documented that the Veteran’s tinnitus was distracting and made him anxious. VA treatment records show continuous treatment for migraine/headache pain with symptoms of aura and photophobia, hemorrhoids with medication therapy, and scalp pain due to folliculitis. See September and October 2017, November 2018, and November 2019 VA Treatment records. In May 2016, during a private psychological evaluation, the Veteran reported that his headaches occurred consistently, one to two times per month, and caused depression. In October 2017, the Veteran was receiving treatment for his paranoid schizophrenia and his VA psychologist indicated that, due to his mental and physical conditions, he was not able to work in any capacity either full or part time. On February 22, 2019, the Veteran underwent another VA examination to evaluate the severity of his migraines. The Veteran reported that his headaches occurred 2 to 3 times per month and were prostrating in nature. He also reported that when he had headaches he had to retreat to a dark room, and he must sleep until his headache improves. The examiner documented that the Veteran had migraine or nonmigraine characteristic prostrating attacks of migraine headache pain once every month. The examiner also documented that the Veteran was unable to report for work on days that he had headaches, and this occurred approximately 2 to 3 times per month. The Veteran’s scalp scar and hemorrhoids were also evaluated on February 22, 2019 by two different examiners. The examiners documented no functional impairments associated with these disorders. In August 2019, the Veteran underwent a private evaluation for his migraines. The private examiner documented that the Veteran had characteristic prostrating attacks of migraines more frequently than once per month. The examiner stated that the Veteran had 2 to 3 prostrating attacks per week and he had to lay down in a dark quiet room for several hours before he could resume functioning. The examiner also stated that due to the Veteran’s migraine headaches he would be incapable of maintaining the focus necessary to perform simple repetitive work-like tasks on a sustained basis and would miss work at least 3 to 5 days per month. In January 2020, the Veteran underwent another VA examination to evaluate his bilateral hearing loss. The examiner documented functional impairment consisting of difficulty understanding most people and has to ask people to repeat themselves and he cannot hear the television. The Veteran reported, however, that he did not think that his hearing affected his ability to work. Based on the foregoing evidence, the Board finds that, prior to February 22, 2019, entitlement to a TDIU on an extraschedular basis is not warranted. Namely, the record shows that, while the Veteran may have been unemployable due to the combination of his nonservice-connected paranoid schizophrenia and his physical disabilities, the record does not show that his service-connected disabilities, alone, prevented him from being able to secure or follow a substantially gainful occupation. As indicated above, while the Veteran received continuous treatment for his migraine/headaches, there is no indication that this disorder, in combination with his scalp scar, hemorrhoids, tinnitus, and bilateral hearing impairment, caused functional impairment such that he would be unable follow or maintain substantially gainful employment. From February 22, 2019, however, the Board finds that the evidence is at least in equipoise as to whether entitlement to a TDIU on an extraschedular basis is warranted. In reaching this decision, the Board acknowledges the December 2020 decision by the Director of Compensation Service which concluded that the cumulative evidence did not support a finding of extraschedular TDIU based on service-connected conditions alone. However, as noted above, the Board is not bound by the Director’s decision. Furthermore, while it appears that the Director considered the impact of the Veteran’s service-connected disabilities on the Veteran’s ability to obtain and maintain gainful employment, the Director did not consider that the Veteran’s migraines would cause him to miss multiple days of work per month. Namely, as of February 22, 2019, the evidence indicates that the Veteran had headaches that were prostrating in nature and he would have to sleep until his headaches improved. The evidence also suggests that, due to his migraine headaches, he would be incapable of maintaining the focus necessary to perform simple repetitive work-like tasks on a sustained basis and he would miss at least 3 days of work per month. As such, in resolving all reasonable doubt in favor of the Veteran, the Board finds that an inability to work at least 3 days of work per month is consistent with an inability to maintain substantially gainful employment. Accordingly, from February 22, 2019, entitlement to a TDIU on an extraschedular basis is granted. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Metzner, Paul 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.