Citation Nr: 21014664 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 14-06 946A DATE: March 15, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran’s service-connected disabilities render him unable to secure and follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for an entitlement to a total disability rating based on individual unemployability (TDIU) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1994 to May 1996. This matter comes before the Board of Veterans’ Appeals (Board) from an October 2009 decision by the Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge during a July 2017 Travel Board hearing. A transcript of that proceeding is associated with the claims file. In December 2017, the Board remanded this appeal, and there has been substantial compliance with the remand directives. Outstanding private and VA treatment records have been obtained and associated with the claims file. The RO also notified the Veteran that the request for employment information from prior employers were returned as undeliverable and requested that the Veteran ensure that correct contact information has been provided (see October 2019 VA correspondence), to which the Veteran failed to respond. To the extent the record is incomplete, that is a direct result of the Veteran’s failure to cooperate, and the Board will not order that this development be attempted again. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist or with the conduct of his Board hearing. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. In deciding a claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. See Gilbert, 1 Vet. App. at 53. In making this determination, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran claims he can no longer maintain employment due to his service-connected migraine and back condition. He argues he has almost entirely limited mobility and uses a VA-prescribed cane, has limited ability to lift weights or sit for more than 5-15 minutes (if not, his legs go numb and he get cramps and muscle spasms/pain) due to his back condition. He also added that reading causes severe migraines. As for functional impairment due to headaches, he reported sensitivity to light as well as problems maintaining attention and concentration, and noted that he cannot talk/function and has to lie down when he has headaches. Initially, the Board notes that the Veteran has multiple service-connected disabilities, with at least one disability rated 40 percent or more, with a combined rating of 70 percent throughout the appeal period. He meets the schedular TDIU criteria under 38 C.F.R. § 4.16(a). Therefore, a TDIU is warranted if the evidence shows that he has been unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, considering his specific educational and employment background, but without regard to age, non-service connected disabilities, or previous unemployability status. See 38 C.F.R. §§ 4.16(a), 4.19. After a full review of the record, and resolving reasonable doubt in favor of the Veteran, the Board finds that this is the case here. Therefore, entitlement to a TDIU is granted. On VA 21-8940 forms for TDIU, the Veteran indicated that he became too disabled to work as of November 1995 and that he last worked full-time as of May 1996 in the military. He further noted that he last worked as of June 2005 as a part-time busser at a restaurant (about $200 a month), which he noted was terminated due to his limited ability to work as even the moderate working condition was intolerable due to his back condition and migraine headaches. There were various other part-time jobs he reported to have held previously, to include customer service jobs at PetSmart (about 6 months in 2003) and Home Depot (a few months in 2003), a part-time sandwich maker (Subway in 2004), a temporary service work (Star Staffing in 2003), and “trustee” work at a shelter in 2005 (but see October 2007 correspondence, showing that the Veteran lived at the shelter, but never worked there). He testified during the July 2017 Board hearing that he has not had any other jobs within the prior five years. As for the Veteran’s educational history, review of the evidence shows that he attended ITT Technical Institute close to two years (but was unable to finish), focusing on the electronics engineering technology and a computer-aided drafting programs (from November 1992 to May 1993 and September 1996 to September 1997, see April 2005 Vocational evaluation notes; see also April 2012 VA 21-8940 form, indicating that he could not complete the program due to his disabilities (“migraines and back flare ups led to his missing classes”)). It appears he had applied for Chapter 31 benefits about three times, but was unable to complete the program. Although unclear as to why, he chose not to pursue, or was unable to complete, the required work for determining his feasibility for employment. See November 2002 VA correspondence; July 2003 Vocational Rehabilitation and April 2005 VA correspondences (noting that he had previously participated in Chapter 31 but stopped his participation prior to reaching his goals). The VA vocational evaluator’s notes in April 2005 indicate that he “was inducted into Chapter 31 in April 2003, but he was allegedly fired (at PetSmart) due to customer complaints, to include an issue of him not wanting to handle/show customers birds during a period of time when he was sick”. At a December 2004 appointment, he reported he was performing volunteer work at a hospital per Chapter 31 guidelines in order to provide a reliable indication of his feasibility for employment, but he was unable to do so due to his unreliable transportation situation (his mother gave him a ride as she also worked there), and he also reported during the vocational exploration session that he was not doing volunteer work due to being in too much pain—to include throbbing and worsening migraine headaches and backaches. The vocational evaluator at the time determined that as he was unable to complete the vocational assessment process, his feasibility for employment appeared questionable. See February 2004 VA certified vocational evaluator’s notes. While the Veteran testified that he began receiving Social Security Administration (SSA) disability benefits around 2007, he was not sure which of his disabilities were the basis for the award of benefits. The records provided from the Social Security Administration do not provide pertinent records as to what disabilities the Veteran began receiving benefits (see also May 2013 and January 2011 VA treatment records, documenting the Veteran’s report that he receives SSDI, but does not otherwise relay as to based on what disabilities he is receiving these benefits). However, the records contain an April 2007 examination done by Dr. S. for SSA, and that doctor completed a list of work-related activities the Veteran could or could not do. The diagnosed disabilities include cervical spine degenerative disc disease, which the Veteran is not service-connected for, but does indicate restrictions on physical activities such as lifting, carrying, sitting, standing and walking with a note that the Veteran has to change positions continuously and that he had severe low back pain and pain in the legs. It was also noted he had severe migraine headaches quite frequently and could not work around a lot of fluorescent lights or be in noisy areas. After reviewing all pertinent records and resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran warrants a TDIU. Initially, the Board acknowledges that the only VA 21-4192 forms of record indicate “no concessions made by reasons of disabilities” and list either “quit” or “insubordination” for reason for termination (see VA 21-4192 forms for Subway and Rosewood Restaurant). The reason for termination for other jobs that the Veteran had held (i.e. Home Depot) are unclear—as the requested VA 21-4192 forms were not provided. With regards to his job at Subway, he indicated that he was fired for missing work—and specifically explained that he got tired of explaining to the employer that he was missing work due to his migraines and flare-ups affecting his ability to get up and walk in the morning. See April 2012 VA 21-8940 form. As for the reasons for termination for his PetSmart job, he explained that it was due to difficulties with headaches, attendance and performance. When asked about attendance problems, although he partly attributed it to his GI/bowel problems (to include leakage problems which he believed might be related to his service-connected back problem—however, none of the VA examinations indicated neurologic abnormalities to include bowel or bladder problems associated with his back condition), he clarified it was due to his headaches (testified he has severe headaches about a third of the time per month, at least every week, with each episode lasting from about three to five days) and affirmed that he has missed days from work due to headaches specifically. At his Board hearing, he reported sensitivity to lights as well as problems maintaining attention and concentration, and noted that he cannot talk/function and has to lie down when he has headaches. The most recent VA examinations show no or only minimal functional impairments due to his service-connected disabilities. See November 2019 DBQ headache examination, showing no functional impact relating to headaches other than pain as he continues to carry out usual activities or daily living and normal physical findings noted on exam, and the Veteran reporting several recurrent migraines a month; see November 2019 DBQ back examination, documenting the Veteran’s report of inability to walk for a prolonged period but the examiner indicating no functional limitation or impairment, and finding no neurologic abnormalities (bowel or bladder problems) or assistive devices associated with his back condition). There are also favorable private opinions which are not entirely persuasive as they fail to distinguish functional impacts as due to his service-connected disabilities versus non-service connected disabilities (ie. neck disability). For example, the April 2006 private medical opinion merely provide a conclusory statement, indicating his diagnosis for low back and neck and that he is unable to work due to the severity of these symptoms. A September 2011 private medical opinion indicated the Veteran reported an inability to maintain gainful employment due to pain with sitting/standing/arm, leg, and back pain and that he is also unable to maintain sedentary work due to severe back pain; the medical provider opined that patients with severe lumbar degenerative disc disease usually have increased pain with prolonged sitting and bending, consistent with his MRI and x-ray findings. However, in light of the Veteran’s education history, work history (primarily of customer service work, requiring prolonged sitting/standing, some heavy lifting, and depending on the workplace, might have fluorescent lighting), and medical evidence showing functional impairments associated with service-connected disabilities (prolonged sitting activities, heavy lifting, and working under fluorescent lighting), it would be highly unlikely that he could work in similar jobs as the ones that he had held in the past. He does not have sedentary work experience, nor any office work experience. Therefore, the Board finds that the Veteran warrants a TDIU despite all the unfavorable findings discussed above. On balance, and resolving reasonable doubt in favor of the Veteran, the evidence is at least in equipoise that the combined effects of the Veteran’s service-connected disabilities have rendered him unable to secure and follow a substantially gainful occupation. Affording him the benefit of the doubt, entitlement to a TDIU on a schedular basis is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lee 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.