Citation Nr: 21010257 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 13-04 193 DATE: February 24, 2021 ORDER A total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU) is denied. FINDING OF FACT The weight of the evidence does not suggest that the Veteran is unable to obtain or maintain substantially gainful employment as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for a TDIU rating have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1952 to March 1956. The Veteran provided testimony before the undersigned Veterans Law Judge at a May 2016 Board hearing. A complete transcript is of record. VA received the Veteran’s claim for an increased rating for headaches on June 23, 2009. During the development of his claim, there was an indication that his service-connected headaches would limit his ability to work in many jobs. The question of a TDIU was raised by the record and found to be part and parcel of his increased rating claim on appeal. As such, the relevant period on appeal, regarding the TDIU claim begins on June 23, 2009. This appeal was previously before the Board in July 2016 and in August 2017. The August 2017 Board decision remanded the TDIU for a VA examination, which was provided in May 2019. As such, the Board finds that there has been substantial compliance with the August 2017 Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998).  TDIU The Veteran was last employed in May 1994, as a lead supervisor at a paper mill. See VA 21-8940 dated November 3, 2016. He reported that he could no longer work because of his traumatic brain injury (TBI) and headaches. Id. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is 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, the disability shall be ratable at 60 percent or more, and that, if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. “While the term ‘substantially gainful occupation’ may not set a clear numerical standard for determining a TDIU, it does indicate an amount less than 100 percent.” Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). Assignment of a TDIU evaluation requires that the record reflect some factor that “takes the claimant’s case outside the norm” of any other Veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Id. In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court interpreted the phrase “unable to secure and follow a substantially gainful occupation” to have two components: one economic and one noneconomic. 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 more than determining the presence or absence of employment producing income exceeding any particular threshold. The ultimate inquiry on the Veteran’s ability to secure or follow that type of employment. The Court also provided that to determine whether a Veteran can secure and follow a substantially gainful occupation, attention must be given to the Veteran’s history, education, skill, and training; whether the Veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. The Veteran’s service-connected disabilities are headaches, rated at 50 percent, effective June 23, 2009; emphysema rated at 10 percent, effective July 12, 1957 and at 30 percent, effective, May 16, 2019; scars associated with emphysema, rated at 10 percent, effective January 27, 2005; residuals of TBI rated at 10 percent, effective June 23, 2009; tinnitus rated at 10 percent, effective August 9, 2010; bilateral hearing loss rated as noncompensable; and a scar rated as noncompensable. As previously stated, the period on appeal begins on June 23, 2009. Since that date, the Veteran has a combined disability rating of 60 percent, with at least one disability rated at 40 percent or more. His service connected disabilities combined to 70 percent as of August 9, 2010. As such, the Veteran has met the schedular rating criteria for a TDIU as of August 9, 2010. See 38 C.F.R. § 4.16 (a). A review of the evidence of record, which includes the Veteran’s VA treatment records, his lay statements, to include his testimony, and his VA examination reports, when taken in total, shows that his service-connected disabilities do cause him impairment. However, they do not establish that the Veteran is unable to obtain or maintain substantially gainful employment as a result of his service-connected disabilities. The Veteran was afforded a VA examination in April 2010 for headaches. He reported that after he left the military, he experienced on and off headaches. He reported that his headaches did not affect his employment at the paper mill and he never missed work due to them. The examiner reported that the Veteran had non-prostrating attacks of headache pain, about twice a month. The Veteran was afforded a VA examination in November 2013 for residuals of TBI. The examiner reported that the Veteran did not have cognitive difficulties due to his TBI; however, the examiner did report that he had difficulties with headaches. The examiner indicated that the Veteran’s headaches had increased since the last VA examination, in terms of frequency and severity. The examiner reported that the Veteran had prostrating headaches that lasted one-three days and was characteristic of migraine headaches. The examiner reported that the Veteran’s headaches would affect the ability to work, stating that the frequency and duration, of at least one day, three times a month, would limit his ability to work in many jobs or require significant accommodation. The Veteran was afforded a VA examination in April 2015 for his respiratory disability. The examiner indicated that the Veteran did not require corticosteroid medication; did not require a bronchodilator; did not require the use of antibiotics; and did not require outpatient oxygen therapy for his respiratory condition. The examiner reported that the Veteran’s respiratory condition would not impact his ability to work. The examiner also opined that the Veteran’s non-service-connected cardiac condition was more likely than not, responsible for his limitation in exercise tolerance. The Veteran provided testimony at a May 2016 Board hearing. The issue of a TDIU was brought up, however, the Veteran did not specifically describe the impact his various service-connected disabilities had on his ability to work (the Veteran’s representative at the Hearing did suggest that a doctor had suggested that his headaches would impact his working). Based on the Veteran’s representative’s assertion in July 2017 that his headaches had worsened, the Board remanded for a new VA examination to determine the current severity of his headaches. The examiner was asked to answer the following; (1) what side effects does the Veteran’s current headache medication cause; (2) how, if at all, does any medication the Veteran takes for his headaches impact his activities of daily living and occupational functioning; (3) does the Veteran experience any cognitive impairment as a result of his TBI; (4) describe any functional impairment caused by the Veteran’s current service-connected disabilities; and (5) if the examiner found functional impairment, they should describe how the Veteran is impaired, and what, if any, accommodations he may need to function, particularly in an occupational environment. The Veteran was afforded a VA examination for headaches in September 2017. The examiner reported that the Veteran had characteristic prostrating headaches, once every month. However, he did not have very prostrating and prolonged attacks of headache pain. The examiner reported that the Veteran’s headaches would impact his ability to work because he would require time off of work to rest or significant accomodation at his place of work to rest during prostrating headaches, occurring up to three times per month and lasting up to three days at a time. Regarding the August 2017 Board remand directives, the September 2017 VA examiner addressed those questions. The examiner reported that the Veteran’s current headache medication was Tylenol and did not cause any side effects and that there was no impact on the activities of daily living and occupational functioning. The examiner reported that the Veteran did not have any cognitive impairment as a result of his TBI because he was able to work without difficulty for over thirty years after his TBI. The examiner noted a 2009 head CT scan, which showed a skull defect, but brain parenchyma appeared normal, arguing against a severe TBI that would cause cognitive impairment. In answering the question about any functional impairment caused by the Veteran’s current service-connected disabilities, the examiner reported that headaches were the only TBI residual that affected him and explained that his other service-connected disabilities are not related to his TBI. Here, the September 2017 VA examiner addressed all of the August 2017 Board remand directives. As such, the Board finds that there has been substantial compliance with the August 2017 Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998).  The Veteran was afforded a VA examination for emphysema in October 2018. The examiner reported that the Veteran had evidence of mild obstruction on PFT testing, as well as atypical emphysema on CT imaging. The examiner reported that the respiratory disability would impact his ability to work because it would preclude physically active occupations, but less physically active and non-physical type occupations remained feasible. The Veteran was afforded a VA examination for headaches in May 2019. The examiner reported that the Veteran had characteristic prostrating headaches, once every month. However, he did not have very prostrating and prolonged attacks of headache pain. The examiner reported that the Veteran’s headaches would not affect his ability to work. The Veteran was afforded a VA examination for emphysema in May 2019. The examiner reported that his emphysema would impact his ability to work because it would limit physically demanding activities. The Veteran was afforded a VA examination for TBI residuals in May 2019. The examiner noted that the Veteran suffered from TBI related headaches, but did not otherwise have other residuals. The examiner did note that the Veteran had memory complaints, but reported that the onset of the memory problems came over 40 years after the TBI, which made it less likely than not that it was related to the TBI. The examiner reported that the Veteran’s residuals from TBI, not including headaches, did not impact his ability to work. The Veteran was afforded a VA examination for tinnitus and hearing loss in June 2019. The examiner reported that the Veteran’s tinnitus and hearing loss would impact the ordinary conditions of daily life, including the ability to work, because he could not hear much of anything without his hearing aids and the tinnitus was annoying to the Veteran. While it is ultimately a rating consideration as to whether the Veteran is able to obtain or maintain substantially gainful employment, the medical evidence of record in this case does not suggest that the Veteran has been so functionally limited solely by his service-connected disabilities as to be unable to obtain or maintain substantially gainful employment. VA medical opinions that weigh against the Veteran’s claim for a TDIU are persuasive and found to have great probative value, as they were provided after the examiners had an opportunity to interview the Veteran, review his record, and conduct physical examinations of the Veteran. Although the VA examiners have reported that the Veteran’s headaches and emphysema may impact his ability to work, there has been no indication that it would preclude work entirely. For example, the November 2013 and September 2017 VA examiners reported that his headaches would limit his ability to work in many jobs because he would need to miss work or require significant accommodation, to allow him a place to rest during a headache. The October 2018 and May 2019 VA examiners for emphysema reported that his respiratory condition would preclude physically active occupations, but also reported that less physically active and non-physical type occupations remained feasible. Here, the Veteran’s service-connected headaches and emphysema have been found to cause the Veteran impairment and impact his ability to work; however, some interference with work is anticipated as a result of service connected disabilities, and it is for that reason that compensable disability ratings are assigned. In this case, none of the VA examiners of record have indicated that it would preclude work entirely. The headaches would necessitate the need to take time off of work, or have a place to rest during a headache and the emphysema only allowed for less physically demanding or non-physical type work. Here, the Veteran has been found to be able to perform occupational duties, although with some limitations and/or accommodations. The Board notes that the Veteran has not submitted any medical opinion regarding the inability to sustain substantially gainful employment due to his service-connected disabilities. The Board recognizes that the Veteran is currently assigned the highest schedular rating for headaches, at 50 percent, based on the findings of the November 2013 VA examination. The November 2013 VA examiner reported that the Veteran suffered from very frequent prostrating and prolonged attacks of migraine pain, the criteria for a 50 percent rating. However, the two subsequent VA examinations in September 2017 and in May 2019 found that although he continued to experience headaches, they did not cause very prostrating and prolonged attacks of headache pain. Here, the Board finds that the finding that the Veteran suffers from very prostrating and prolonged attacks of headache pain to be an anomaly. The Veteran underwent two subsequent clinical examinations after the November 2013 VA examination and neither VA examiner reported very prostrating and prolonged attacks of headache pain. The Board also acknowledges that the September 2017 VA examiner reported that the Veteran could hypothetically need to rest 3-9 days per month for prostrating headaches, because they occurred up to 3 times a month, and lasted up to three days at a time. However, the Board notes that the examiner reported in the same examination report that the average amount of prostrating attacks of headache pain over the last several months was one. The Board finds that the hypothetical situation presented by the September 2017 VA examiner, that he could need 9 days of time off during a month, is the worst case scenario, and does not coincide with the actual clinical findings of approximately one prostrating attack of headache pain per month. Similarly, the May 2019 VA examiner also reported that the average amount of prostrating attacks of headache pain over the last several months was one. Here, the clinical findings of record do not corroborate the hypothetical situation presented by the September 2017 VA examiner. As such, the Board believes that the Veteran is adequately compensated for headaches by the 50 percent rating under Diagnostic Code 8100. The Board acknowledges that a lay person may be competent to report symptoms he experiences. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Board notes that the Veteran is not competent to report on the level of occupational impairment his service-connected disabilities cause. Id. Here, the Veteran has reported significant headache symptoms and impairment caused by his emphysema. However, he is not competent to identify a specific level of disability according to the appropriate Diagnostic Code or to assess whether the symptoms preclude employment. The medical findings directly address criteria under which a TDIU is assigned. The Board finds the opinions of the VA examiners of record to be the only competent medical evidence of record, and therefore is afforded greater weight than the Veteran’s subjective complaints. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). While the Board does not wish to minimize the nature and extent of the Veteran’s overall disability picture, the evidence of record does not support his claim that his service-connected disabilities, in concert, are sufficient to render him unable to obtain or maintain substantially gainful employment. Here, the Board is sympathetic to the Veteran’s assertions does believe that his headaches and emphysema cause him impairment. The Board acknowledges that he suffers from prostrating headaches and has trouble with physical activities due to emphysema. The Board also believes that these disabilities cause him occupational impairment. However, the Board is bound by the laws and regulations governing the award of TDIU benefits. Here, the VA examiners of record have not reported that these disabilities would preclude obtaining or maintaining substantially gainful employment. Instead the VA examiners have reported that he could perform less physical or non-physical type jobs and could take time off of work and accommodations could be made, so as to allow the Veteran to perform occupational duties. In addition, the Veteran has not identified or submitted any competent medical evidence or opinions demonstrating that his service-connected disabilities, individually or in concert, preclude him from securing and maintaining substantially gainful employment and entitle him to a TDIU. While the Veteran may not be able to perform physical jobs due to emphysema and may need to take time off of work and may need accommodations due to his headaches, a TDIU is only warranted when service-connected disabilities prevent obtaining or maintaining substantially gainful employment. Here, it simply is not shown that the Veteran’s service-connected disabilities result in such a limitation. Accordingly, a TDIU is not warranted. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Fu, 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.