Citation Nr: 21014416 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 13-20 748 DATE: March 12, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis is granted. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, he is unable to secure and follow a substantially gainful occupation by reason of his service-connected headache disability. CONCLUSION OF LAW The criteria for the assignment of a TDIU on an extraschedular basis are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1966 to November 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The procedural history of this case has been summarized in previous Board decisions and remands. Most recently, in October 2019, the Board denied the claim on appeal. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2020 Order, pursuant to a May 2020 Joint Motion for Remand (JMR), the Court vacated and remanded the Board’s October 2019 decision. In October 2020, the Board remanded the appeal. The Board’s remand directives have been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). In October 2020, the Veteran submitted two VA Forms 21-22a (Appointment of Individual as Claimant’s Representative) appointing two different attorneys, Carrie Mobley and Stephanie Bentley. Both of these attorneys are from the same office. By letter received in January 12, 2021, the attorneys revoked representation. By letter issued January 21, 2021, the RO acknowledged the revocation of representation and acknowledged the current representative, as listed on the title page. Due process correspondence was also issued to the current representative. The Board considers the Veteran’s current representative as listed on the title page. See January 2020 VA Form 21-22. There is no prejudice to the Veteran, to include considering the grant of benefits rendered below. Entitlement to a TDIU on an extraschedular basis. The Veteran contends that he has been unable to work since July 2009 due to his service-connected headache disability. Total disability ratings for compensation may be assigned when a veteran is unable to secure and follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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); see Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment). Consideration may be given to the Veteran’s level of education, special training, and previous work experience when arriving at this conclusion; factors such as age or impairment caused by nonservice-connected disabilities are not to be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19. “Substantially gainful employment” is that employment “which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). In the Court’s March 2019 Panel Decision, it explained that “substantially gainful employment” contains economic and noneconomic components. Ray v. Wilkie, 31 Vet. App. 58 (2019). 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,” while the noneconomic component requires consideration of a veteran’s ability to secure or follow that type of employment. Id. Section 4.16(a) provides a rating hurdle for schedular consideration of a TDIU. If there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more 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. Where a Veteran does not meet the percentage requirements, but there is evidence that the Veteran is unable to obtain or maintain substantially gainful employment, the claim for TDIU will be referred to the Director of VA’s Compensation and Pension Service. 38 C.F.R. § 4.16(b). If the Veteran does not meet the percentage requirements, the Board cannot grant TDIU in the first instance, but must first ensure that the TDIU claim is referred to the Director of Compensation and Pension for adjudication. Bowling v. Principi, 15 Vet. App. 1 (2001); see also Christensen v. Wilkie, 2019 U.S. App. Vet. Claims LEXIS 1907 (explaining that the 2018 amendment to 38 C.F.R. § 3.321(b) did not alter the requirement that the Board refer a claim for an extraschedular TDIU to the Director of Compensation Service in the first instance). Here, resolving all reasonable doubt in favor of the Veteran, the Board finds that a TDIU is warranted for the entire appeal period. The Veteran’s claim for a TDIU was raised as part-and-parcel of his increased rating claim for his service-connected headache disability that was previously before the Board. Thus, the appeal period mirrors the appeal period for that increased rating claim. Accordingly, the appeal period begins on November 29, 2009, one year prior to the date VA received his increased rating claim for his headache disability. The Veteran is only service connected for chronic cluster headaches, rated 10 percent disabling prior to November 29, 2010, and 50 percent disabling thereafter. The Veteran does not meet the schedular requirements for assignment of a TDIU under 38 C.F.R. § 4.16(b) at any point during the appeal period. Turning to whether referral for extraschedular consideration under 38 C.F.R. § 4.16(b) is warranted, the Board notes that in November 2020 the RO referred the TDIU claim to the Director of VA Compensation and Pension Services for extraschedular consideration pursuant to an October 2020 Board remand directive. The Director of VA Compensation and Pension Services denied entitlement to TDIU on an extraschedular basis. The Veteran’s work history consists primarily consists of work as a plumber and a forklift driver. See June 2001 Veteran’s Application for Increased Compensation Based on Unemployability (VA 21-8940); May 2014 VA 21-8940; February 2015 Social Security Administration (SSA) Work History Report. The Veteran last worked in July 2009. Id. The evidence of record shows that the Veteran only has a high school education. See June 2001 VA 21-8940; May 2014 21-8940. In a July 2011 Notice of Disagreement, the Veteran reported that he is unable to hold a job for any long period of time because he continually calls in sick or takes off early. He also noted that while he has had many sympathetic employers who have tried to work with him, the outcome is always the same; he either is fired, laid off, or forced to quit due to the severity of his headaches. A January 2014 VA treatment record shows that the Veteran reported that in recent years he would miss one to two days of work each week due to his headaches. In an April 2014 statement, the Veteran’s sister-in-law reported that the Veteran would have headaches almost every day. She also noticed that he was working less, if at all, and that he would have a different job. She noted that he would either be laid off for missing too many days or calling in sick or would have to quit because the pain became too much to bear. The Veteran’s ex-spouse and daughter reported similar information in April 2014 statements. Throughout the appeal period, the evidence of record shows that the Veteran has experienced two to three headaches daily that last for approximately two to three hours. See July 2015 VA examination; February 2017 VA examination; February 2020 VA examination; VA treatment records. During these episodes, the Veteran must be in a dark, quiet area and is unable to talk to anyone or carry on with any activity. See February 2017 VA examination. The Veteran has consistently reported that his headaches increased to this severity and frequency in July 2009 at which time he was no longer able to work. See May 2014 VA 21-8940; July 2015 VA examination; August 2015 correspondence. The Veteran underwent VA examinations for his headaches in December 2010, July 2015, February 2017, and February 2020. The December 2010 VA examiner did not address whether the Veteran’s headache disability affected his ability to work. The July 2015 VA examiner opined that the Veteran experienced moderate functional impairment due to his headache disability. The examiner noted that the Veteran was able to function in his occupation as a plumber with his headaches for 30 years until he electively stopped working in 2009. Thus, he concluded that the Veteran was capable of sedentary to moderate physical activity. However, the evidence of record does not show that the Veteran worked as a plumber for 30 years; rather, he worked as a plumber since approximately 1996, and while he had several jobs during this time period, he changed jobs frequently or went periods of time without a job. See June 2001 VA 21-8940; February 2015 SSA Work History Report; July 2016 correspondence. Additionally, how the Veteran functioned in employment prior to the appeal period is irrelevant in this case, as during that time, the Veteran’s headaches were not of the severity and frequency that they have been since the beginning of the appeal period. The February 2017 VA examiner opined that the Veteran would be a burden to an employer based on the fact that his headaches occur two to three times a day, last two hours each, and he must be in a dark, quiet area unable to talk or do any activity during his episodes. The February 2020 VA examiner opined that the Veteran’s headache condition impacted his ability to work because he cannot concentrate on work during his headaches. Based on a review of all of the evidence of record, and resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran’s service-connected headache disability would reasonably preclude the Veteran from maintaining substantially gainful employment. In light of the Veteran’s work history and education, he would be able to work in an unskilled/semi-skilled physical labor position. However, while the Veteran would likely be able to obtain one of these positions, the Board finds that it is unlikely that he would be able to maintain the position given the severity, frequency, and duration of his cluster headaches. The Veteran’s headaches occur two to three times per day and last approximately two to three hours each time, and during these episodes the Veteran is unable to complete any tasks and must be in a dark, quiet room. Generally, a typical employer is not going to permit an employee to take even one two to three-hour break each day to treat headaches, and any sick or annual leave used for these episodes would likely exceed the amount allowed by a typical employer. Furthermore, even if the Veteran were to use leave pursuant to the Family and Medical Leave Act when he experienced episodes, given the frequency of his headaches, he likely would exhaust the 12 weeks of leave permitted in just a few months. Additionally, as noted in the Board’s prior remand, the Veteran’s inability to accomplish mental or physical tasks during these episodes would likely result in difficulty sustaining concentration, pace, and performance generally required to maintain a typical job. Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds that his service-connected headache disability would reasonably preclude his ability to maintain substantially gainful employment. In coming to this conclusion, the Board acknowledges that the evidence of record indicates that the Veteran became unemployable in July 2009. However, as such was more than one year prior to the date VA received his claim for an increased rating for his headache disability, the proper effective date for a TDIU is November 29, 2010, the date of his increased rating claim. As such, a TDIU is granted from November 29, 2010. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mortimer, Erin 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.