Citation Nr: 21009795 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 15-25 915 DATE: February 23, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is denied. FINDING OF FACT The Veteran was not unable to secure or follow a substantially gainful occupation due to his service-connected headache disability. CONCLUSION OF LAW The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) due to the Veteran’s service-connected headache disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321(b), 3.400, 4.3, 4.7, 4.14, 4.21, 4.71a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1971 to June 1972. This matter come before the Board on Veterans’ Appeals (Board) on appeal of a September 2010 rating decision by a Department of Veteran’s Affairs (VA) Regional Office (RO). In March 2019, the Board rendered a decision denying entitlement to a TDIU. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). On February 7, 2020, the parties agreed to a Joint Motion for Remand (JMR) moving the Court for an Order vacating and remanding the Board decision. By an Order dated February 24, 2020, the Court granted the parties JMR and remanded the matter to the Board for actions consistent with the JMR. Most recently, in August 2020, the Board remanded the matter for additional development. The Board finds that the Regional Office (RO) substantially complied with the Board’s remand instructions and an additional remand to comply with the Board’s directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998). Neither the Veteran nor his representative has otherwise raised any issues with regard to the duty to notify or duty to assist as they pertain to the issue denied in this decision. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issue denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in the decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) The Veteran seeks entitlement to a TDIU, asserting that “permanent brain damage” prevents him from securing or following any substantially gainful occupation. See VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, received February 2010. A TDIU may be granted where a veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or higher, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or higher, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his or her age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341 ,4.16, 4.19. “Substantially gainful employment” is defined as work that is more than marginal and that permits the individual to earn a living wage. See Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment is not considered substantially gainful employment. “Substantially gainful employment” contains economic and noneconomic components. The economic component means “an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person,” and the noneconomic component requires consideration of a veteran’s ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The determination of whether a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability is a factual determination rather than a medical question. Therefore, responsibility for the ultimate determination of whether a veteran is capable of securing or following substantially gainful employment is placed on the VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); see also 38 C.F.R. § 4.16; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran seeks entitlement to a TDIU, asserting that “permanent brain damage” prevents him from securing or following any substantially gainful occupation. In his application for a TDIU, the Veteran noted that he had worked only as an automotive technician from 1988 to 2006, and that he left his last job/self-employment because of his service-connected disability. The Board notes that the Veteran is service connected solely for migraines, rated as 50 percent disabling under 38 C.F.R. § 4.124A, Diagnostic Code 8100, from September 22, 2009. This is the maximum rating available under Diagnostic Code 8100. The Veteran's service-connected disability ratings alone did not meet the criteria for consideration of TDIU on a schedular basis. The Board may not, in the first instance, grant a TDIU on an extraschedular basis. See Bowling v. Principi, 15 Vet. App. 1 (2001). Here, however, the matter of entitlement to an extraschedular TDIU due to service-connected disabilities had already been referred to the Director of Compensation Service. While the opinion of the Director concluded that TDIU was not warranted on an extraschedular basis, such opinion is not binding on the Board. The Director's extraschedular decision is one of fact and is reviewable by the Board on a de novo basis; it may serve to inform the Board's review, but it is not evidence. Kuppamala v. McDonald, 27 Vet. App. 447, 456-58 (2015). Upon review, the medical records show that the Veteran has a history of seizures and that following the May 2010 VA examination, the examiner stated that “[the Veteran’s] frequent headaches and seizures that are uncontrolled at times will prevent him from seeking gainful employment.” In a July 2010 addendum, however, the same examiner clarified that “[t]he veteran’s uncontrolled seizures prevent him from seeking gainful employment. The migraine headaches do not prevent him from seeking gainful employment.” The Veteran reported that “if he takes Naprosyn when he feels a headache is coming on, he can avoid it.” The Board acknowledges the Veteran’s contention that his seizures were caused by medication (Celexa) he was prescribed by VA for treatment of depression and that this justifies the grant of TDIU. Unfortunately, the Board is unable to grant the benefit sought. Without addressing any theory regarding causation, the fact remains that service connection is not in effect for seizures. A January 2014 rating decision denied entitlement to compensation under 38 U.S.C. § 1151 for brain injury (including seizures). Therefore, any occupational impairment because of this condition cannot be considered when determining whether a TDIU is warranted. The Veteran’s treatment records demonstrate that he continues to have intermittent headaches, that are relieved with Naproxen. See April 2018 and October 2018 treatment records. In a June 2020 note, the examiner states, “has been having migraines but if he takes one [Aleve] he can abort headache.” The July 2020 note provided a similar assessment. There are also notes, within the record where the Veteran denies having headaches. In August 2020, the Veteran was afforded a VA examination for his headache condition. The examiner indicated that the Veteran’s conditions have worsened since 2010. The Veteran reported having pulsating or throbbing head pain which can result in nausea, vomiting, sensitivity to light, sensitivity to sound, changes in vision, and sensory changes. The Veteran reported that typical head pain lasts one to two days. The examiner noted that the Veteran has prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. The examiner described the functional impact as headaches are triggered or worsened with bright lights and loud noises. The Veteran reportedly is unable to function in a working role during headaches due to pain inhibiting ability to focus and function at work. The examiner noted that the Veteran reported that his prostrating headaches occur more frequently than once a month. In a September 2020 treatment note, the examiner indicated that the Veteran reported that his “headaches are coming on but relieved with Naproxen.” In view of the above, the Board finds that the records show that due to his service-connected disability, that he would need an environment that does not inherently include loud sounds and bright lights and that he would need to be able to take his medications. With such limitations the Veteran would not be able to perform his prior work as a mechanic. However, he would be able to perform a number of jobs, such as clerical work, sorting, inspection work, and security monitoring. The Board acknowledges that the Veteran reported in his August 2020 examination that he was unable to work. However, the Veteran’s medical history demonstrates that he has intermittent headaches, but they would not prevent him from securing substantial employment. The Veteran’s statements are also contradictory with the record because he stated he has not been able to work since the 1990’s, yet his work history shows that he worked part time as a mechanic. The Board is not suggesting the part-time work is substantial employment. However, the Board notes that the Veteran was holding the same type of employment that he said his headache disability prevented him from doing prior to the Veteran quitting his job. In addition, the Veteran’s treatment records, a month after the VA examination, demonstrate that the Veteran’s headaches are controlled. Finally, while the determination of whether a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability is a factual determination rather than a medical question. The Board notes that the May 2010 examiner separated the Veteran’s service-connected headache disability from his nonservice-connected seizure disability. The examiner opined that the Veteran would not be able to work because of “uncontrolled seizures,” but he would be able to secure employment with his service-connected headache condition. The Board also notes that the 2010 examination is over 10 years old. Thus, the Board affords this examination minimal probative weight. The Board affords substantial weight to the Veteran’s contemporaneous treatment records as statements made for the purposes of medical diagnosis or treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive a proper diagnosis or treatment. See White v. Illinois, 502 U.S. 346, 356, 112 S.Ct. 736 (1992). The Board differentiates this from the August 2020 VA examination because this examination was used solely for rating purposes. The Board has considered the Veteran’s special training and previous work experience. See 38 C.F.R. §§ 4.16. The Veteran has completed high school and a year of college. The Board finds that the Veteran’s education level is not inconsistent with an ability to perform work of an unskilled or semi-skilled nature, such as clerical work, sorting, inspection work, and security monitoring. The Veteran has past work experience as a mechanic. The Board finds that although the Veteran may no longer be able to perform his past work, his work history would not have prevented him from transitioning to an unskilled or semi-skilled occupation, or from securing or following an unskilled or semi-skilled occupation, which do not require special training and can be learned on the job site. The Board does not doubt that the Veteran’s service-connected disability limited his occupational functioning. However, as discussed above, the Veteran retained the functional capacity to perform the duties required of any number of jobs that would allow an environment that does not inherently include loud sounds and bright lights and that he would be able to take his medications, such as clerical work, sorting, inspection work, and security monitoring. The Board also acknowledges that the Veteran’s nonservice-connected conditions, to include seizures, may further limit him such that he cannot secure or follow a substantially gainful occupation. However, the nonservice-connected disabilities are not for consideration. As such, the evidence of record does not show that the Veteran was unable to secure or follow a substantially gainful occupation due to his service-connected disabilities at any time during the relevant period. The preponderance of the evidence is against a finding of entitlement to a TDIU, the benefit-of-the-doubt doctrine is not for application, and the appeal must be denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Quist, 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.