Citation Nr: 21010955 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 16-25 359 DATE: February 26, 2021 ORDER A total disability rating due to individual unemployability is granted from July 16, 2014. FINDING OF FACT The evidence is sufficient to establish that the Veteran has not been able to secure or maintain substantially gainful employment due to his service-connected disabilities from July 16, 2014. CONCLUSION OF LAW The criteria for a total disability rating for individual unemployability due to service-connected disabilities have been met from July 16, 2014. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 4.15, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1978 to September 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a February 2020 decision, the Board found entitlement to a total disability rating due to individual unemployability (TDIU) part and parcel of an increased-rating claim and remanded the TDIU claim for referral to the Director, Compensation Service. As that development has been completed, the claim may now be adjudicated on the merits. Dyment v. West, 13 Vet. App. 141, 146–47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). A TDIU may be assigned if the schedular rating is less than total, 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. 38 C.F.R. § 4.16(a). To be considered for assignment of a schedular TDIU the Veteran’s service-connected disabilities must meet the following criteria: (1) if there is only one such disability, this disability shall be ratable at 60 percent or more; or (2) if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. Id. The Veteran’s claim for an increased rating, of which the TDIU claim is part and parcel, was received on July 16, 2015, and therefore the appeal period under consideration starts from July 16, 2014. 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o)(2); Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). The Veteran’s service-connected disabilities include migraine headaches, rated at 50 percent from July 16, 2014; left knee status post-torn medial meniscus, rated at 10 percent from July 16, 2015; and, loss of teeth due to dental surgery, rated noncompensable from July 16, 2015. As the Veteran’s combined disability rating is not 70 percent or greater, a TDIU may not be granted by way of 38 C.F.R. § 4.16(a), and therefore the Board’s February 2020 decision referred the matter to the Director, Compensation Service under the terms of 38 C.F.R. § 4.16(b). As that process has been completed, the Board will now consider whether the Veteran is unemployable due to service-connected disabilities and therefore may be entitled to an “extraschedular” TDIU. A Veteran is unemployable if he is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). A substantially gainful occupation is one 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. Ray v. Wilkie, 31 Vet. App. 58, 72–73 (2019). In evaluating a Veteran’s ability to secure and follow a substantially gainful occupation, consideration may be given to his level of education, skills and training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities. Id.; 38 C.F.R. §§ 3.341, 4.16, 4.19. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran has the physical and mental ability to perform the types of activities required by the occupation at issue, not whether the Veteran can find employment. Id.; 38 C.F.R. § 4.16(a). Turning to the evidence, the Veteran has stated that he last worked full-time in 1997 or 1998. He worked in truck driving and in retail, but jobs were hard to keep due to passing out from his service-connected migraine headaches. When driving, he would need to stop in the middle of a run to take a nap due to bad headaches, and this would make his deliveries late. Later, he lost his driving license due to his headaches. At a March 2013 VA examination, the Veteran was found to have 20 headache days per month, typically lasting five to six hours. The Veteran stated he had continuously had headaches nearly every day. The examiner found that the Veteran very frequently had prostrating headache pain, which impacted his ability to work. The Veteran’s private treatment provider explained in a December 2013 letter that the Veteran qualified for Botox treatment, the prerequisite for which was 15 headache-days a month, and that the Veteran had been having headaches even more frequently than that. The doctor wrote that the Veteran is unable to work and has a loss of productivity because of his headaches. At a March 7, 2016 VA examination, the Veteran reported headaches every two to three days, lasting from three hours to a few days. Prostrating attacks were very frequent, occurring more than once per month, and were prolonged. The Veteran’s symptoms included pain, nausea, sensitivity to light and sound, changes in vision, sensory changes, and syncope. At the May 1, 2019 Board hearing, the Veteran testified that every day to every other day he has a headache that causes him to pass out, collapsing and losing consciousness for a few seconds before getting his bearings and regaining the ability to stand up. He stated that the attacks occurred with about five minutes of warning, which meant that he could not go anywhere without someone to help him; for instance, he had lost his driver’s license for a year due to the condition. The migraines lasted four to five hours, although sometimes all day. The Veteran described that the headaches and the associated symptoms made it hard to keep a job, not least because he had to rely on having someone with him at all times in case he passed out. He had attempted jobs as a driver and in retail but had been limited by his disability. Following the Board’s prior February 2020 remand, the Director, Compensation Service issued a November 2020 memorandum finding that the overall evidence supported that the Veteran’s service-connected migraine headaches showed an exceptional situation that prevented gainful employment from July 16, 2014. Based on all the evidence of record, the Board agrees that the evidence is sufficient to establish that the Veteran’s service-connected disabilities have rendered him unemployable since July 16, 2014. The Veteran’s training and experience is in truck driving, but his migraine headaches impaired him while he was still driving and, as the Veteran testified that his migraines now manifest in episodes of passing out, they outright prevent him from safely driving and have prevented him from continuously maintaining a driving license. Both the medical evidence and the Veteran’s own testimony show that his headaches manifest to such a degree and frequency—half of days or more, and causing prostrating attacks or even to lose consciousness and need assistance recovering—that the Board finds the symptoms would preclude obtaining and maintaining employment in any other area, such as the Veteran’s attempts to work in retail. Ray, 31 Vet. App. at 72–73. Accordingly, an extraschedular TDIU is granted from July 16, 2014. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 4.15, 4.16(b). K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Davis, 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.