Citation Nr: 21008163 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 09-09 229 DATE: February 11, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities before March 14, 2016, is remanded. REASONS FOR REMAND The Veteran had active military service from January 1979 to June 1995. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2012, the Veteran and her husband, L. M., testified at a Board hearing before a Veterans Law Judge (VLJ). TDIU was raised as part of the increased rating for migraine headaches. A copy of the transcript is of record. As the VLJ who presided over the December 2012 hearing is no longer at the Board, the Veteran was afforded an opportunity for another hearing before a different VLJ. In a May 2017 correspondence, she declined. The issue was thrice before the Board in April 2013, December 2017, and February 2020. The most recent remand of February 2020 mandated that the RO request that the Veteran provide the address of her previous employer, Sauer Inc., evidence of her full work and educational history, and to readjudicate the claim. In March 2020, the Veteran was requested to provide her former employer’s mailing address. In May 2020, she was again requested to provide her former employer’s address and evidence pertaining to her full work and educational history. In August 2020, the RO adjudicated the claim in the form of a Supplemental Statement of the Case (SSOC). The Board finds that there has been substantial compliance. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Entitlement to a before March 14, 2016, is remanded. The Veteran contends that her service-connected migraine headache disability prohibits her from securing or following a substantially gainful occupation. In her December 2012 Board hearing, she testified that she stopped working in 2009 due to her headaches. Also, at the time of the hearing, the headaches kept her from finding work. Total disability exists 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 based on individual unemployability: that is, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one service-connected disability, it must be rated 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran’s advancing age. 38 C.F.R. §§ 3.341 (a), 4.19 (2018); Van Hoose v. Brown, 4 Vet. App. 361 (1993). When the Board conducts a TDIU analysis, it must consider the Veteran’s education, training, and work history. Pederson v. McDonald, 27 Vet. App. 276 (2015). During the period on appeal, the Veteran is service connected for migraine headaches at 50 percent disabling, effective April 10, 2007; lumbosacral strain and residual, fracture of the right foot, both at 10 percent disabling, effective April 10, 2007. The Veteran’s total disability rating before March 14, 2016, was 60 percent. Thus, the schedular criteria were not met. When the threshold criteria for consideration of a schedular TDIU are not met, the issue of entitlement to a TDIU may be submitted to the Director of the Compensation Service for extraschedular consideration where the Veteran is unable to secure or follow a substantially gainful occupation because of service-connected disabilities. 38 C.F.R. § 4.16 (b); Fanning v. Brown, 4 Vet. App. 225 (1993). The Board cannot assign an extraschedular rating in the first instance. Bagwell v. Brown, 9 Vet. App. 337 (1996). The Board must decide whether to remand this case for referral to the Director of the Compensation Service for consideration of an extraschedular TDIU. 38 C.F.R. § 4.16 (b). Although the Veteran did not provide an executed VA-Form 4198, the evidence of record shows an April 2014 dated VA 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, wherein she attributed her lack of employment to her migraine headaches. The Veteran reported therein, having been under a doctor’s care and/or hospitalized within the past 12 months. She indicated that the date she last worked full-time was August 2009, which was also the date that she became too disabled to work. The Veteran reported that she left her last job, as an assistant AQM, with Sauer Inc, because of her disability. She was employed with the company from August 2007 to August 2009 and missed many workdays and hours, which “had become a detriment to [her] employer.” Regarding her schooling, the Veteran indicated having a high school education with one year of college and not having had other education and training before becoming too disabled. The evidence of record contains a VA examination of November 2007 wherein the Veteran reported that she last worked in 2000 doing internal finishing for construction. She estimated that if she were still working, she would miss one to three days per week because of her headache. She also reported that when she got the headaches, she was unable to drive. In an April 2008 Statement in Support of Claim, the Veteran reported that she got migraines headaches approximately once a week and had been sent home from work as a result. Treatment records dated the same month indicate that she was employed in construction. Treatment notes dated in December 2008 note that she was employed with Sauer, Inc. Treatment notes dated in March 2010 reflected her employment status as “retired,” while notes dated in September 2011 indicate that she “quit in 2009” Sauer, Inc., where she was employed “for two years as a quality control manager.” The clinician noted her highest educational level attained: 13 1/2 years and assessed her educational level as “learning problems.” During a VA thoracolumbar spine medical opinion of March 2016, the examiner opined that the Veteran’s back disability would not impact her ability to work if the position did “not require more than 20 minutes at a time of standing; so preferably, a desk job.” The Board notes that even though this examiner did not determine, in light of the Veteran’s work history in construction and her education, what types of “desk job[s],” she would qualify for, “sedimentary employment,” per Dorland’s Illustrated Medical Dictionary, 1687 (32nd ed. 2012), “sedentary” is defined as “sitting habitually; of inactive habits;” “Pertaining to a sitting posture.” The Court has recently held that because VA does not define “sedentary employment” in its regulations for a TDIU, the Board must determine the meaning on a case-by-case basis. Withers v. Wilkie, 30 Vet. App. 139 (2018). Lastly, of the record is a March 2016 VA migraines headache examination, wherein the Veteran reported constant head pain, pain that was localized to one side of the head with nausea and sensitivity to light, and numbness of the face for more than two days. The examiner determined that her migraine headaches impacted her ability to work since she must lie down because of her symptoms. Based on the findings of this examination, the Board in December 2017 granted a 50 percent rating for migraine headaches, effective April 10, 2007, after a finding that the Veteran had “very frequent,” “completely prostrating,” and “prolonged” migraine headache attacks productive of severe economic inadaptability. The RO implemented the said grant in a January 2018 rating decision. Considering the evidence as presented, the Board finds that criteria for referral for assignment of an extraschedular TDIU under 38 C.F.R. § 4.16 (b) are met. Bagwell, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1996). Thus, the issue is remanded. Accordingly, the matter is REMANDED for the following action: (Continued on the next page)   1. Refer the Veteran’s claim to the Director of the Compensation Service to consider the issue of entitlement to TDIU on an extraschedular basis, under 38 C.F.R. § 4.16 (b). 2. If any benefit sought on appeal remains denied, issue a SSOC to the Veteran and his attorney and afford them a reasonable opportunity for response before returning the appeal to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Stevens, 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.