Citation Nr: 21006423 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 18-43 994 DATE: February 4, 2021 ORDER Beginning June 5, 2014, entitlement to total disability based on individual unemployability (TDIU) is granted. REMAND Prior to June 5, 2014, entitlement to TDIU is remanded. FINDING OF FACT Beginning June 5, 2014, the Veteran had one service-connected condition rated 40 percent disabling or more with a combined rating of at least 70 percent, which rendered him unable to maintain or secure a substantially gainful occupation. CONCLUSION OF LAW Beginning June 5, 2014, the criteria for entitlement to TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1983 to November 1986. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In the decision now on appeal, the RO awarded the Veteran service connection for headaches; he was granted a 50 percent disability rating effective December 1, 2005 (the claim previously was the subject of multiple Board remands). The effective date corresponded to the date the Veteran filed his claim to reopen, as service connection for headaches previously was denied via a September 1987 rating decision. In a March 2017 Notice of Disagreement (NOD), Counsel for the Veteran indicated that he was appealing “all issues in the Rating Decision”; for headaches, the boxes for both the “Evaluation of Disability” and “Effective Date of Award” were checked off. Counsel indicated that they were seeking entitlement to TDIU as part of the Veteran’s rating, which should be granted back to the date of the claim—December 1, 2005. On March 22, 2017, Counsel also submitted a formal application for TDIU. Therein, the Veteran indicated that he is unemployable due to his service-connected headaches, has not worked in the past five years, and has completed high school. In a June 2017 rating decision, the RO awarded the Veteran TDIU effective March 22, 2017—the date he filed his formal application. In an August 2017 NOD, Counsel appealed the effective date of TDIU, noting that he previously appealed the original November 2016 rating decision, which awarded service connection for headaches, arguing that the Veteran was entitled to a TDIU rating effective December 1, 2005. In an April 2019 decision, the Board, among other things, denied the Veteran’s appeal for an earlier effective date for TDIU. Counsel appealed that determination to the United States Court of Appeals for Veterans Claims (Court). The Office of the General Counsel for VA and the Veteran (collectively referred to as “the Parties”) resolved that appeal by way of a Joint Motion for Partial Remand (JMPR). The Parties agreed that the April 2019 decision, with respect to the issue herein, should be vacated and remanded to the Board. The Parties faulted the Board for determining that the Veteran’s effective date could not extend back to December 1, 2005—the date on which the Veteran’s claim for headaches was filed—because the claim was one for service connection and not an increased rating. August 21, 2020, JMPR at 3. To this end, the Board previously overlooked the fact that the Veteran appealed the initial rating of his service-connected headaches and the fact that, pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453–54 (2009), TDIU can be raised as part and parcel of an increased rating claim or as part of the initial adjudication of a claim, such as an appeal of an initially assigned rating. Id. Thus, the Board provided an inadequate statement of reasons or bases for denying the Veteran’s earlier effective date claim, requiring readjudication. In an August 25, 2020, Order, the Court adopted the Parties’ JMPR. Thus, it is against this backdrop that the Board now will readdress this claim. 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 totally disabled. A finding of total disability is appropriate when there is present any impairment of mind or body, 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), 4.15, 4.16. A claim for a total disability rating based upon individual unemployability presupposes that the rating for the service-connected disability is less than 100 percent, and only asks for TDIU because of subjective factors that the objective rating does not consider. Vettese v. Brown, 7 Vet. App. 31, 34–35 (1994). Where the schedular rating is less than total, a total disability rating for compensation may be assigned 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, provided that, if there is only one such disability, that disability shall be ratable at 60 percent or more. If there are two or more disabilities, then there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). The term substantially gainful occupation is not specifically defined for purposes of the regulations governing TDIU. Marginal employment, however, is not considered substantially gainful employment. Marginal employment includes situations in which an individual’s annual income does not exceed the poverty threshold for one person. Employment may be marginal even when the individual’s earned income exceeds the poverty threshold if such individual is employed in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a). The Veteran’s disabilities and their various components (evaluations and effective dates) are as follows: headaches (50 percent effective December 1, 2005), double cyst formation on the upper occipital region (noncompensable from November 29, 1986; 30 percent from June 5, 2014; and 50 percent from December 15, 2017), lumbosacral strain (40 percent from August 28, 2018), persistent depressive disorder (30 percent from January 9, 2015), right knee strain (10 percent from August 28, 2018), and ), left knee strain (10 percent from June 10, 2019). Using the combined ratings table in 38 C.F.R. § 4.25, the earliest date at which the Veteran meets the schedular criteria for TDIU is June 5, 2014. As of that date, the Veteran had a combined rating of at 70 percent with a disability rated at least 40 percent (headaches). The record reflects that, beginning June 5, 2014, the Veteran was unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. A September 2015 VA examination for the Veteran’s headaches indicates that the Veteran experiences migraine attacks productive of severe economic inadaptability, which, during an acute attack, would limit the Veteran’s ability to concentrate on work. A March 2017 disability benefits questionnaire (DBQ), completed by Dr. H.S., indicates that the Veteran “suffers from prostrating attacks of migraine pain accompanied with occasional nausea and vomiting, light and sound sensitivity and reduced power of concentration. He would not be able to maintain substantial gainful employment due to the amount of work missed and would require frequent unscheduled breaks.” Dr. H.S. also provided a Residual Functional Capacity Evaluation indicating that the Veteran would miss two–three days of work per week due to his headaches. A December 2017 VA examination of the Veteran’s headaches revealed that the “Veteran’s headache frequency and intensity would not allow him to maintain or obtain even sedentary work.” In the Board’s view, the evidence of record supports the award of TDIU for the period he meets the schedular criteria under 38 C.F.R. § 4.16(a) from June 5, 2014. The Board finds that the severity of the Veteran’s service-connected disabilities preclude the Veteran from securing and maintaining substantially gainful employment. Thus, the Board finds that the Veteran is entitled to an effective date of June 5, 2014, for the award of TDIU. REASONS FOR REMAND Entitlement to an effective date prior to June 5, 2014, for TDIU requires remand. As the Veteran does not meet the schedular requirements for TDIU prior to this date, the only remaining questions is whether he was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities on an extraschedular basis under 38 C.F.R. § 4.16(b). The Board does not have jurisdiction to authorize an extraschedular rating in the first instance. Floyd v. Brown, 9 Vet. App. 88 (1996). It may, however, determine that a particular case warrants referral to the Director, Compensation Pension, for extraschedular consideration under 38 C.F.R. § 4.16(b). A December 2010 VA examination indicates that the Veteran’s headaches make it difficult to perform daily activities such as driving and chores. If the Veteran’s headaches would prevent him from performing these simple tasks, then certainly it would prevent him from working. And as described in the decision section above, there is medical evidence indicating impediments to securing and maintaining substantially gainful employment due to the severity of his service connected headaches. Indeed, under 38 C.F.R. § 4.124a, Diagnostic Code 8100, the 50 percent rating for the Veteran’s service-connected headaches contemplates symptoms that are “productive of severe economic inadaptability.” In the Board’s view, these factors are sufficient to refer the claim for extraschedular consideration under 38 C.F.R. § 4.16(b). Additionally, the Veteran should be sent another formal application for TDIU to help elicit his past employment history. While in his March 2017 application for TDIU he indicated that he has not worked in the last five years, that only covers through December 2012. As noted, the possibility of TDIU extends back to December 1, 2005, so the Board requires the Veteran’s complete employment history as of that date. This is necessary because if the Veteran was working full time in a substantially gainful occupation, then TDIU would not be proper. Thus, on remand, the Veteran should be sent a complete TDIU application package to obtain his full employment history. The matter is REMANDED for the following action: 1. Provide to the Veteran a complete application for TDIU so as to elicit all of his employment history form December 1, 2005, through June 5, 2014. 2. Refer to the Director, Compensation Pension, the claim for entitlement to TDIU on an extraschedular basis, from December 1, 2005, to June 5, 2014. The Director’s determination must be associated with the claims file. 3. Conduct any other development deemed necessary and then readjudicate the Veteran’s claim. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded for additional development or other appropriate action by the Board or United States Court of Appeals for Veterans Claims must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Trevor T. Bernard, 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.