Citation Nr: 21013078 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 15-21 882 DATE: March 8, 2021 ORDER A total disability rating based on individual unemployability (TDIU) due to service connected-disabilities for the period of appeal prior to July 23, 2007, to include on an extraschedular basis, is denied. FINDINGS OF FACT 1. For the period of appeal prior to July 23, 2007, the Veteran’s service connected disabilities consisted of migraine headaches (30 percent), residuals of cerebrovascular accident (CVA) (10 percent), tinnitus (10 percent), nasal allergy with sinusitis (10 percent), conductive deafness (noncompensable), and post-operative residuals of a deviated septum (noncompensable). His combined total rating was 40 percent from March 2, 1993, and 50 percent from February 24, 1995. 2. The Veteran’s service-connected disabilities did not preclude him from securing and following substantially gainful employment consistent with his educational and occupational experience prior to July 23, 2007. CONCLUSION OF LAW The criteria for entitlement to a TDIU prior to July 23, 2007, are not met on a schedular or extraschedular basis. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1951 to January 1953. This claim stems from issues that had been in appellate status since the 1990s and has been remanded several times. Most recently, in April 2020, the Board remanded the issue of entitlement to a TDIU for the period of appeal prior to November 20, 2012. The remand directives included readjudication of the issue of entitlement to a TDIU for the period from July 23, 2007, to November 20, 2012, and referring the issue of entitlement to a TDIU prior to July 23, 2007, to the Director of Compensation Service for consideration of an extraschedular rating. Subsequently, in an April 2020 rating decision, entitlement to an earlier effective date of July 23, 2007, for the award of entitlement to a TDIU was granted. The remaining period of appeal, prior to July 23, 2007, has now been returned to the Board. In November 2020, the Director determined that an extraschedular TDIU prior to July 23, 2007, was not warranted. The Board therefore finds there has been substantial compliance with the remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to a TDIU prior to July 23, 2007. Total disability meriting a 100 percent schedular rating exists “when there is present any impairment of mind or body 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), 4.15. Where the schedular disability rating is less than 100 percent, a total rating due to individual unemployability may nonetheless be assigned if a veteran is rendered unemployable as a result of service-connected disabilities, provided that certain regulatory requirements are satisfied. See 38 C.F.R. §§ 3.341(a), 4.16(a). Total disability ratings for compensation may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular- renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16. “Marginal employment,” for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered “substantially gainful employment.” 38 C.F.R. § 4.16(a). Here, for the period prior to July 23, 2007, the Veteran’s service-connected disabilities consisted of migraine headaches (30 percent), residuals of cerebrovascular accident (CVA) (10 percent), tinnitus (10 percent), nasal allergy with sinusitis (10 percent), conductive deafness (noncompensable), and post-operative residuals of a deviated septum (noncompensable). His combined total rating was 40 percent from March 2, 1993, and 50 percent from February 24, 1995. Thus, the percentage requirements of § 4.16(a) are not met, and entitlement to a TDIU on a schedular basis is not warranted at any point during the period of appeal prior to July 23, 2007. The regulations provide that if the percentage requirements are not met, TDIU may be granted on an extraschedular basis in exceptional cases when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §§ 3.321(b), 4.16(b). In Bowling v. Principi, 15 Vet. App. 1, 10 (2001), however, the United States Court of Appeals for Veterans Claims (Court), citing its decision in Floyd v. Brown, 9 Vet. App. 88, 94-97 (1995), held that the Board cannot award TDIU under 38 C.F.R. § 4.16(b) in the first instance, because that regulation requires that the RO first submit the claim to the Director, Compensation Service, for extraschedular consideration. Under Wages v. McDonald, 27 Vet. App. 233 (2015) a decision of TDIU under 38 C.F.R. § 4.16 (b) by the Director of C&P is not evidence, and is not a policy decision, but is simply a decision or adjudication that is adopted by the RO and reviewed de novo by the Board. Regarding education and employment history, the Veteran indicated on a March 2011 Application for Increased Compensation Based on Unemployability that he had a bachelor’s degree in Management and had worked until 1994 when he became too disabled to work due to a stroke. The application is silent for mention of the type of work the Veteran did, or any past employers. The Board finds that prior to July 23, 2007, the Veteran’s service-connected disabilities did not preclude him from securing or following substantially gainful employment consistent with his educational and work background. In an April 1994 VA nose and sinuses examination, the Veteran reported having symptoms of a runny nose and eyes, and occasional frontal headaches. There was no interference with breathing space in the nose and the Veteran denied having dyspnea. In an April 1994 VA examination for diseases or injuries of the brain, the Veteran reported his migraine history, which included an “episode” in 1985 and again in 1990 with symptoms of photophobia, vomiting, and slurred speech. He was diagnosed as having a small transient ischemic attack (stroke) in 1990. He had another episode and was admitted to the hospital in May 1992 or 1993. From November 1993 to the time of the examination, the pattern had started again, and the Veteran noted that he had been diagnosed with “complex and confusional migraine.” In a May 1994 VA mental disorders examination, the Veteran reported having run his own business until approximately 15 years ago when he had some difficulty with HUD and had been in litigation ever since. He was not diagnosed with any psychiatric disorder. In an August 2003 VA examination, the Veteran reported that he was a retired manufacturing business CEO. He stated that his migraine headaches were non-disabling. One week prior, when he felt a migraine start while he was driving, he was able to continue driving. The migraines decreased his ability to think clearly, but he was able to work through them and not curtail any usual activities. In a February 2006 VA treatment record, the Veteran reported having difficulty hearing when the speaker was about 10 feet away and when listening to the television. In a June 2007 VA audiological examination, the examiner noted that the functional impairment due ot the hearing loss was judged to be minimal. The Director of Compensation Service submitted an extraschedular advisory opinion in November 2020. She indicated that consideration was given to all relevant evidence of record, including but not limited to the Veteran’s education, training, and work history, along with his medical history. The Director concluded that the overall evidence did not support the contention that service-connected disabilities supported an exceptional situation that prevented gainful employment prior to July 23, 2007. As such, entitlement to an extraschedular TDIU was not warranted. The Board recognizes that the Veteran is competent to report on the nature and perceived impact of his symptoms to the extent that they are capable of lay observation. Layno v. Brown, 6 Vet. App. 465 (1994). However, under the facts of this case, the Board finds that the Veteran has limited competence to opine on the occupational impact of such symptoms, as this is beyond his lay competence. Moreover, the Veteran has made contradictory statements about the reason for leaving his employment, noting that he was not working due to ongoing litigation. Upon review of the evidence of record, the Board finds that the Veteran’s service connected disabilities did not render him unemployable prior to July 23, 2007, and the claim must therefore be denied. The evidence as outlined above reflects the Veteran’s migraine headaches, residuals of a CVA, tinnitus, conductive deafness, nasal allergy and sinusitis, and deviated septum residuals did not render him unable to secure or follow a substantially gainful occupation. Rather, VA examination reports dated during this period of appeal are silent for mention of unemployability due to service-connected disabilities. In the August 2003 VA examination, the Veteran reported that his migraines were not disabling and did not curtail any usual activities. Moreover, as noted above, the Veteran indicated that he had stopped working due to litigation, not his service-connected disabilities. There is no other medical evidence suggesting that the Veteran was unable to work due to his service-connected disabilities. In reaching this conclusion, the benefit of the doubt has been considered; however, the preponderance of the evidence is against the Veteran’s claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Accordingly, the Veteran’s claim for TDIU on a schedular or extraschedular basis prior to July 23, 2007, is denied. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Nelson 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.