Citation Nr: 21007171 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 10-06 276 DATE: February 8, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted, subject to the regulations governing payment of monetary awards. FINDING OF FACT The Veteran’s service-connected disabilities (maxillary sinusitis associated with residuals of deviated septum with septoplasty, rated 50 percent; posttraumatic migraine-type headaches associated with residuals of deviated septum with septoplasty, rated 30 percent prior to June 28, 2016, and 50 percent from that date; left ear suppurative otitis media, rated 10 percent; residuals of deviated septum with septoplasty, rated 0 percent; and bilateral eye cornea/conjunctiva conditions with lens conditions, including cataracts and retina, macula or vitreous conditions, and pseudophakia, rated 0 percent) are rated 80 percent, combined, and are reasonably shown to be of such nature and severity as to preclude his participation in any regular substantially gainful employment consistent with his education and occupational experience. CONCLUSION OF LAW The schedular criteria for a TDIU rating are met, and a TDIU rating is warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from December 1952 to December 1956. These matters are before the Board of Veterans’ Appeals (Board) on appeal October 2009 rating decision, which in relevant part, continued to deny a TDIU rating. In November 2012, a Travel Board hearing was held before the undersigned in Philadelphia, Pennsylvania; a transcript is in the Veteran’s record. In February 2013, the case was remanded for additional development. An April 2020 Board decision increased the rating for maxillary sinusitis to 50 percent throughout, denied a compensable rating for residuals of deviated septum with septoplasty, and remanded entitlement to service connection for a bilateral eye disability and a TDIU rating. A December 2020 rating decision granted service connection for bilateral eye cornea/conjunctiva conditions with lens conditions, including cataracts and retina, macula or vitreous conditions, and pseudophakia, rated 0 percent effective July 13, 2009. Accordingly, that matter is no longer before the Board. Entitlement to a TDIU rating is granted. Legal Criteria A TDIU rating may be assigned, where the schedular rating is less than total, when the Veteran is unable to maintain a substantially gainful occupation as a result of service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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 must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Total disability will be considered to exist when there impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation; provided that permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 4.15. Substantially gainful employment is defined as work that is more than marginal and that permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). In Faust v. West, 13 Vet. App. 342 (2000), the U.S. Court of Appeals for Veterans Claims (CAVC) defined substantially gainful employment as “an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran’s earned annual income.” The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The dispositive question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to his age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In a claim for a TDIU, the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination instead is for the adjudicator. See 38 C.F.R. § 4.16(a); see also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background and Analysis The Veteran’s service-connected disabilities (maxillary sinusitis associated with residuals of deviated septum with septoplasty, rated 50 percent; posttraumatic migraine-type headaches associated with residuals of deviated septum with septoplasty, rated 30 percent prior to June 28, 2016, and 50 percent from that date; left ear suppurative otitis media, rated 10 percent; residuals of deviated septum with septoplasty, rated 0 percent; and bilateral eye cornea/conjunctiva conditions with lens conditions, including cataracts and retina, macula or vitreous conditions, and pseudophakia, rated 0 percent) are rated 80 percent, combined. The 38 C.F.R. § 4.16(a) schedular rating requirements for a TDIU rating are met. The remaining (and dispositive) question is whether the service-connected disabilities render the Veteran incapable of maintaining regular substantially gainful occupation consistent with his education and work experience. The Veteran contends he is unable to work due to his ear, eye, and headache disabilities. See April 2009, July 2009, and August 2017 VA Form 21-8940’s. He reported that he worked as a welder from 1971 until 1985 (40+ hours per week for a private company). He reported that he missed some time from work due to a back injury. He also reported that he completed one year of high school, earned a GED, and has not had any additional education or training. Postservice treatment records prior to the period for consideration note the Veteran was on “disability” secondary to a work-related back injury in 1985. See November 1988, May 1991, and July 1991 treatment records. [A July 2011 memorandum notes that Social Security Administration (SSA) medical records have been destroyed.] On May 2009 VA sinus examination, the Veteran reported constant nasal congestion. He also reported purulent discharge, headaches, sinus pain, and sinus tenderness at least monthly but less than weekly. The examiner noted a history of non-incapacitating episodes (six times per year, lasting 7-14 days in duration), but no history of incapacitating episodes. Following interview and examination of the Veteran, the examiner opined that such disabilities (residuals of deviated septum and chronic otitis media) have no impact on sports, bathing, dressing, toileting, and grooming; mild impact on traveling and feeding; moderate impact on chores and shopping; and severe impact on recreation and exercise (noting that he cannot get water in his ears or he will get an ear infection). A July 2009 VA optometry record notes a reported history of “Dark curtain covering vision in the left eye. Has happened four times since 1985…The last episode was approximately 2 weeks ago of a duration of approximately five minutes.” The Veteran also reported “flashes which resemble lightning in the left eye which last for two minutes; they occur two times a month without any incidence of headache or blurry vision.” On August 2009 VA eye examination, the Veteran reported a single transient loss of right eye vision in 2001. He reported bilateral blurred vision. Regarding his left eye, he reported continued episodes of transient visual disturbances (with the last episode occurring six to eight months prior) during which a curtain comes down over one or both eyes for 2-10 minutes with associated nausea. The diagnoses were blepharoconjunctivitis in both eyes, cataracts in both eyes, mild age-related macular degeneration of the left eye, and a history of transient visual disturbance in both eyes, consistent with ocular migraine. The ophthalmologist did not provide an opinion regarding the impact of such symptoms on the Veteran’s ability to work. In a September 2009 statement, the Veteran reported experiencing headaches. Regarding his vision, he wrote, “…mostly my left eye would have partial and complete loss of sight, it would start with a distorted vision like light streaker and all kind of vision patterns like maintaining outline of objects, etc. and would progress to where it was like a shade closing off my sight, sometimes this would last up to 10 minutes and one time over 15 minutes...so far I’ve always regained my sight.” On July 2011 VA sinus examination, the Veteran reported congestion, excess nasal mucus, itchy nose, sinus pain and tenderness, sneezing, and headaches. The examiner noted a history of near constant non-incapacitating episodes, but no history of incapacitating episodes. Following interview and examination of the Veteran, the examiner opined that such disabilities (residuals of deviated septum with maxillary sinusitis) have no impact on sports, feeding, bathing, dressing, toileting, and grooming; moderate impact on traveling, chores and shopping; and severe impact on recreation and exercise. A July 2012 private treatment record notes sinus symptoms including drainage, dry throat, congestion, cough, headaches, and occasional nausea. At his November 2012 Board hearing, the Veteran testified that he experiences visual streaks and feeling dizzy every “few months.” He reported sinus drainage with continuous mucus. He also reported headaches that can last up to one month in duration, described as a “sharp” pain where “the whole top of [his] head pinches.” He stated that he can go a few months without the sharp headaches but that he has a constant “slight pressure on the temple.” Regarding his ability to work, the Veteran testified that he is not worried about injuring himself if his “eyes kick out,” but that he fears endangering others. In response to questioning from the undersigned regarding his ability to perform manual labor, the Veteran reported he does not know how long he could perform the work because “when I get sick I gotta quit…I have to find a spot to lay down or I’m gonna fall down.” He related such periods to “when [his] eye kicks out and then [he] gets weakness in the head and [he has] to stop.” On June 2016 VA headache examination, the Veteran reported headaches that occur three to five times per month and last half a day to two days in duration. He reported left eye loss of vision for 10 to 15 minutes (sometimes right eye, too, when severe) and that vision clears thereafter. The headaches manifest in pain around the left eye, temple, and forehead and feels like stabbing, throbbing/pounding with nasal congestion, nausea, and “sometimes vomiting.” The examiner (a neurologist) diagnosed very prostrating headaches with prolonged attacks productive of severe economic inadaptability. He indicated that the Veteran’s headache disability impacts his ability to work, noting his statement that when he worked, he used to have to sit down until the headache passed “sometimes 30 to 45 minutes due to loss of vision,” and that during “intense headaches [he] was unable to function due to nausea, vomiting, and loose motions.” [It was noted that the Veteran has been retired for 30 years due to a back injury.] On May 2017 VA (fee basis) sinus examination, the Veteran reported congestion, running nose, coughing up a lot of mucus, and difficulty breathing. The examiner did not diagnose non-incapacitating or incapacitating episodes in the past 12 months. The examiner, a nurse practitioner, opined there is no impact on the Veteran’s ability to work. In May 2017, VA attempted to contact (via postal letter) the Veteran’s former employer. In June 2017, the mail was returned as undeliverable with a message that explains the business “expired in the 1990’s.” In a September 2017 statement, the Veteran’s attorney reported that the Veteran’s former employer is no longer in business; he provided a consent form to obtain SSA records. [As noted above, SSA records are not available.] On August 2017 VA (fee basis) headache examination, the Veteran reported continuing headaches manifested by pain on both sides of the head, nausea, vomiting, sensitivity to light and sound, and changes in vision, typically lasting less than one day in duration. The examiner (a nurse practitioner) did not diagnose prostrating attacks (or headaches productive of severe economic inadaptability); she opined that there is no impact on his ability to work. On August 2017 VA (fee basis) ear conditions examination, the Veteran reported “very painful” ear infections “at least once a month,” treated with antibiotic drops. He denied current pain but reported manifestations can include itching, external ear canal discharge, and hearing impairment. Left ear suppurative otitis media was diagnosed. The examiner, a nurse practitioner, opined that the ear disability impacts the Veteran’s ability to work due to dizziness and ear pain which make it “difficult to walk or stand for prolonged periods of time.” On November 2018 VA (fee basis) headaches examination, the Veteran reported headaches which he treats with over-the-counter (OTC) medications, such as Alka-Seltzer. He reported headaches that manifest in pulsating or throbbing head pain (localized on one side of the head), nausea, vomiting, sensitivity to light and sound, changes in vision, and a sensation of pins and needles down the side of the face. He reported that some of the headaches “at times” can last about one week. The examiner diagnosed prostrating attacks once every month, but did not diagnose prostrating attacks productive of severe economic inadaptability. The examiner, a nurse practitioner, opined that the headaches impact on the Veteran’s ability to work because he reports that headaches make him feel fatigued and that he must stop “or he will fall down.” She wrote the headaches cause difficulty concentrating and cause him to “stop what he is doing when being active.” In a January 2019 addendum, the November 2018 examiner noted that the Veteran still has prostrating attacks due to headaches and noted that he complained of “nonstop headaches that have become more intensive since injury as time has gone on, but can control it somewhat with OTC Tylenol and rest.” An April 2019 VA optometry record notes the Veteran’s reports of a longstanding history of ocular migraines described as “zig-zags in vision that move around and change shape, lasting a few minutes or sometimes longer.” He reported the symptoms have been stable for 60 years. An October 2019 VA treatment record (with the June 2016 VA examining neurologist) notes the Veteran’s report of exacerbation of headaches over the prior one to two years. The neurologist noted the character (including left-sided visual changes) of the headaches is the “same as he described 3 years back to me” on examination, but the “frequency is increased.” The Veteran reported left-sided headaches 2-3 times per week, and 2-3 “bad ones every month.” The Veteran expressed willingness to try new medication; Doxepin was prescribed (noting the Veteran’s report of difficulty sleeping). At an October 2019 Board hearing (before a different Veterans Law Judge, regarding the propriety of the reduction of the rating assigned for headaches), the Veteran testified that his migraine pain is rated 3-9/10 on the pain scale, and that he experiences headaches rated 8-9/10 “a couple times a week.” He testified that he does not believe he ever told a VA examiner that he has a migraine [only] once a month. A December 2019 VA noncontrast CT of the head showed mild cerebral atrophy and progressive microvascular ischemic changes compared to December 2012 CT without acute intracranial pathology, and chronic maxillary sinus disease. A January 2020 VA neurology record notes complaints of persistent low grade headache with exacerbation 2-3 times per month, when he uses Alka-Seltzer for relief. The Veteran indicated willingness to try new medication; a sample of low dose Flexeril was prescribed. [An April 2020 telephone encounter record notes his report that the Flexeril has helped his headaches and neck pain.] On December 2020 VA (fee basis) eye examination, the diagnoses were bilateral cornea/conjunctiva conditions, lens conditions (including cataracts and pseudophakia), retina, macula, or vitreous conditions (including left eye anterior stromal scars), and macular degeneration in both eyes since 2009. The Veteran reported decreased vision in both eyes, left worse than right. Corrected vision was 20/40 bilaterally. There were no incapacitating episodes attributable to an eye condition in the prior 12 months. The examiner (an optometrist) opined that the eye conditions do not impact the Veteran’s ability to work. He noted that the Veteran’s cataracts were removed in 2014, the macular degeneration “is mild,” and the “subjective transient visual disturbances are more likely than not part of migraine syndrome.” The Veteran has a limited (9th grade, with GED) education; he has no additional education or training. His occupational experience has been in a skilled trade with moderately physically demanding work (as a welder for more than 14 years). Although the functional impact of his headache disability prior to June 2016 has not been singularly reviewed (or opined upon) by a qualified medical provider, the evidence shows that since the June 2016 VA headaches examination (conducted by a VA neurologist) his headache disability manifests in very prostrating headaches with prolonged attacks productive of severe economic inadaptability. The examiner explained that if a headache manifested while working, the Veteran would need to sit down until it passed (30 to 45 minutes due to loss of vision), and during intense headaches he would be unable to function due to nausea, vomiting, and loose motions. Notably, the June 2016 examiner treated the Veteran in October 2019 and opined the headaches had increased in frequency since June 2016. [The Board notes that the headache disability has been assigned a 30 percent rating for the period prior to June 2016, suggesting that the Veteran experienced monthly prostrating attacks, but not frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, during that period.] The Veteran’s sinusitis manifests in near-constant non-incapacitating episodes (albeit not incapacitating episodes) which cause moderate impact on traveling, chores and shopping, and severe impact on recreation and exercise. See July 2011 VA sinus examination report. [Notably, the reported levels of impairment also considered the Veteran’s reports of headaches.] The Board finds such disability would have a moderate to severe impact on moderately physically demanding work, such as welding. The Veteran’s left ear suppurative otitis media impacts the Veteran’s ability to work due to dizziness and ear pain which make it “difficult to walk or stand for prolonged periods of time.” See August 2017 VA (fee basis) ear conditions examination report. During his reported monthly (or more frequent) ear infections, such disability would impact upon his ability to perform moderately physically demanding work. Finally, although the Veteran’s bilateral eye disability was most recently opined to not impact on his ability to work (noting his corrected 20/40 vision bilaterally on December 2020 VA (fee basis) eye examination), the record throughout shows consistent reports of monthly (or more frequent) visual disturbances including flashes, patterns, blurriness, outlines, and a feeling of dizziness, and periodic (annually, or less frequent) incidents of temporary left eye vision loss due to a dark curtain (likely associated with his migraine disability). Such manifestations, although sporadic, would impact upon the ability to engage in a skilled trade work, particularly near other workers. The Board finds the combined impact of functional impairment from the Veteran’s service-connected disabilities is such that he would be precluded from participating in any regular substantially gainful employment consistent with his education and occupational experience. The Board notes that several VA examiners have opined that the symptoms associated with separate service-connected disabilities, by themselves, do not preclude him from maintaining gainful employment. However, those opinions do not address the combined effect of all of the Veteran’s service-connected disabilities (on his ability to maintain employment). The Board also notes that the Veteran has been found by SSA to be unemployable due a nonservice-connected disability. That finding is not inconsistent with, and does not preclude, a determination that his service-connected disabilities, of themselves, also render him unemployable. Resolving remaining reasonable doubt in the Veteran’s favor, as required (see 38 C.F.R. § 4.3), the Board finds that a TDIU rating is warranted. [The effective date of the award is a downstream issue for the AOJ to address in the first instance.] GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dupont, 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.