Citation Nr: 21012526 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 00-14 421A DATE: March 4, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from March 14, 2004, is granted, subject to the law and regulations governing the payment of monetary benefits. FINDING OF FACT From March 14, 2004, the evidence of record demonstrates that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU from March 14, 2004, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1977 to June 1980 and from January 1987 to January 1990. This case is before the Board of Veterans’ Appeals (Board) on appeal from a May 1999 rating decision rendered by the Department of Veterans Affairs (VA)Regional Offices (ROs) in Waco, Texas. Jurisdiction over the appeal was since transferred to the RO in Detroit, Michigan. The Veteran provided testimony at a hearing before personnel at the RO in October 2001 and before the Board in May 2013. Transcripts of both hearings have been associated with the claims file. This claim was previously before the Board in June 2020, at which time it was remanded for further development. TDIU TDIU may be granted where a Veteran’s service-connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2017). Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) (2015) that an informal claim “identify the benefit sought” has been satisfied and VA must consider whether the Veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The central inquiry is, “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extraschedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). Marginal employment shall not be considered as constituting substantially gainful employment. 38 C.F.R. § 4.16(a). VA policy is to grant TDIU, regardless of the percentages, when service-connected disability actually renders a veteran unemployable. 38 C.F.R. § 4.16(b). Where there is evidence that a veteran is unemployable by reason of service-connected disability, but does not meet the percentage requirements, the Board is required to remand the claim, so that it can be referred to VA’s Director of Compensation Service for adjudication in accordance with 38 C.F.R. § 4.16(b). Once a referral for an extraschedular TDIU rating under § 4.16(b) is made by the Board, the Director of Compensation Service then determines whether an extraschedular TDIU evaluation under § 4.16(b) is warranted. At that juncture, only then does the Board have jurisdiction to decide the TDIU claim on the merits when it returns. Pursuant to 38 C.F.R. § 4.16(a), marginal employment or the ability to work sporadically shall not be considered substantially gainful employment. Marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court of Appeals for Veterans Claims, held that “substantially gainful employment” has both an economic and non-economic component. 38 C.F.R. § 4.16(b). The economic component includes the Veteran’s ability to earn more than a marginal income as evidenced by federal poverty thresholds. The non-economic component involves assessing the Veteran’s actual ability to work. Factors to be discussed include (1) the Veteran’s history, education, skill, and training; (2) whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and (3) whether the Veteran has the mental ability to perform the activities required by the occupation at issue. Entitlement to a TDIU, to include entitlement to an extraschedular rating for the period prior to October 23, 2008, and from May 1, 2013 The Veteran is service connected for migraine headaches at 50 percent disabling from February 10, 1999, and residuals of a traumatic brain injury (TBI) at 10 percent disabling from October 23, 2008, and zero percent disabling from May 1, 2013. The Veteran’s combined rating for his service-connected disabilities was 50 percent from February 10, 1999, 60 percent from October 23, 2008, and 50 percent from May 1, 2013. Thus, he does not meet the percentage requirements for schedular consideration for TDIU during the entire appeal period. However, pursuant to the January 2018 Board remand, the Veteran’s claim was referred to the Director of Compensation Service for an extraschedular evaluation under 38 C.F.R. § 4.16(b) (2019). A May1999 VA Neurological Disorders examination noted that the Veteran worked at a microchip processing plant in shipping and receiving for the past two years. The Veteran received a work physical examination in February 2001 for an evaluation to determine the stability of his chronic medical problem for employment. He was currently employed in sales and distribution. The Veteran stated his headaches occurred once or twice per week and were associated with dizziness, visual changes, nausea, occasional photophobia, and sonophobia. Based on the results of the examination, the Veteran was given medical clearance for his occupation but instructed to return if there was no improvement in his symptoms. The Veteran remained employed during a February 2002 VA Neurological Disorders examination but revealed that he developed a recent headache at work that forced him to leave early. A March 2005 Social Security Disability Report then reflects that the Veteran became unable to work on March 14, 2004. When he awoke in the morning, his head hurt so bad that sometimes he wished that he would not have awakened. The Veteran’s work history included working as a stock controller, a mail worker, a line worker, and a forklift driver. The Veteran’s longest held job was the forklift driver position, which he held from March 2001 to April 2002. He worked 8 hours per day for 5 days a week at a rate of $8.00 per hour. A December 2005 VA Neurology Consultation noted that the Veteran was working in the manufacturing field but was not currently working due to his migraines. In February 2006, the Veteran received a psychological evaluation to assess his cognitive status, needs, and recommendations. Based on the results, the psychologist opined that the findings suggested that the Veteran would have considerable difficulty obtaining and sustaining competitive employment given his psychological status. The Veteran received a VA Mental Disorders examination in January 2007 and reported that he had been unemployed for the past two and a half years. He last worked for a company refurbishing brakes but was laid off due to cutbacks within the company. Most of his employment involved working in warehouses, stockrooms, and receiving departments of various manufacturing companies. The Veteran reported that he typically did not hold jobs for long because he would “get fed up with my boss and walk out.” He also reported being fired from various other positions for “talking back” to supervisors. The Veteran also received a VA Neurological Disorders examination in January 2007 and reported that he would call in sick four to five times per month due to his migraine headaches. An April 2010 TBI examination found that the Veteran’s condition did not have an effect on his occupation. The Veteran received VA examinations for his TBI and migraines in January 2012 and the examiner found that neither condition impacted his ability to work. A vocational rehabilitation report was submitted in April 2013 and the counselor noted that the Veteran reported migraine headaches lasting two to three hours that required him to lie down. This need would greatly impact the Veteran’s ability to obtain and maintain employment, as most employers did not have a location for an employee to lie down for two to three hours. Furthermore, the need to lie down on a daily basis would impinge upon the Veteran’s ability to do assigned job tasks and he would not be able to continually perform the essential functions of any job. The Veteran submitted his Application for Increased Compensation Based on Unemployability, VA Form 21-8940, in March 2014 and indicated that his TBI prevented him from securing or following any substantially gainful occupation. He Veteran reported that he last worked full time in 2004 as a shipping and receiving clerk and also completed one year of college. The Veteran completed vocational rehabilitation to become a paralegal assistant in 2004. The Veteran again received VA examinations for his TBI and migraines in July 2015. The examiner found that the Veteran’s headache condition had “significant effects” on his ability to work; he may need to take two to three hours of rest when the headaches are severe. The examiner additionally noted, however, that the Veteran worked physical jobs for approximately 10 years but stopped because of paranoid thoughts. June 2018 VA headaches and TBI examinations found that the Veteran’s conditions did not impact his ability to work. An individual unemployment statement found that the Veteran’s service-connected conditions did not cause any restrictions for job activities. The Director of Compensation Service submitted an advisory opinion for extraschedular consideration of TDIU for the period prior to October 23, 2008, and from May 1, 2013. She noted that, in 2004, the Social Security Administration (SSA) found the Veteran was disabled primarily due to a psychiatric condition with migraine headaches considered a secondary diagnosis. She also noted the available medical records and also a statement from a vocational rehabilitation counselor indicating that the Veteran’s migraine headaches greatly impacted his ability to obtain and maintain employment. However, the Director concluded that, based on the totality of the evidence of record, extraschedular entitlement to TDIU was not shown prior to October 23, 2008, or from May 1, 2013, due exclusive to migraine headaches or TBI, nor was there any collective impact shown. The medical records indicated that the conditions were not totally incapacitating for occupational activity and the vocational counsel indicated that headaches would merely impact on occupational activities, not prevent them. Furthermore, there were several nonservice-connected disabilities identified which had not been differentiated from service-connected conditions. Since no service-connected disabilities were identified individually or collectively as the sole reason for the Veteran’s unemployability, the Director concluded that TDIU was not warranted on an extraschedular basis prior to October 23, 2008, or from May 1, 2013. The Veteran received a VA Headaches examination in April 2020 and the examiner found that the condition did not impact his ability to work. She found that the headaches had improved over the years based on the Veteran’s own statements and also his medical records. A primary care note from February 2020 indicates that the Veteran reported very occasional headaches and that they were likely related to nonservice-connected, untreated obstructive sleep apnea. Regarding the economic component of TDIU, the Board notes that the Veteran last worked full time on March 14, 2004 as a shipping and receiving clerk. He was unable, however, to recall how much he earned per month. The evidence indicates, however, that he made $8.00 per hour at his longest held job as a forklift driver two years earlier. The Board will resolve reasonable doubt in the Veteran’s favor and award entitlement to TDIU, beginning March 14, 2004, the date he last worked full time as a shipping and receiving clerk. Based on the evidence presented in this case, the Board finds that the evidence supports a finding that the functional impairment associated with the Veteran’s disabilities is of such nature and severity as to preclude substantially gainful employment beginning on this date. The Board highlights the Veteran’s limited education and limited employment history. He has primarily worked in a manual labor capacity, which is no longer feasible given the service-connected migraine headaches. Such positions require constant movement and interaction, but the evidence indicates that the Veteran needed to lay down for two to three hours when experiencing a migraine. There is no evidence that the Veteran possesses the training or experience to obtain employment where such accommodations are feasible. Therefore, resolving reasonable doubt in the favor of the Veteran, the Board finds that the evidence of record supports entitlement to an award of TDIU. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Daniels, 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.