Citation Nr: 21015135 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 06-35 502 DATE: March 16, 2021 ORDER A total disability evaluation based upon individual unemployability (TDIU), to include on an extra-schedular basis, prior to April 16, 2003 is denied. FINDING OF FACT For the period prior to April 16, 2003, the Veteran’s service-connected disabilities did not render him incapable of securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for establishing entitlement to TDIU, to include on an extra-schedular basis, prior to April 16, 2003, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service from November 1988 to November 1991. Review of the record indicates that this matter was previously remanded on multiple occasions, to include most recently in February 2020. In the February 2020 Board decision, the Board determined that a TDIU was warranted from April 16, 2003. Prior to the date identified, the schedular requirements for a TDIU had not been met. Therefore, a remand was deemed necessary to refer the Veteran’s claim to the Director of Compensation Services (DCS) for consideration of TDIU prior to April 16, 2003, to include on an extraschedular basis. As the requested development has been completed, this matter has been returned to the Board for appellate consideration. TDIU prior to April 16, 2003 The Veteran seeks a TDIU prior to April 16, 2003, to include on an extraschedular basis. Pursuant to a February 2020 Board Decision, the Veteran was granted a TDIU effective April 16, 2003. In the same decision, the regional office was directed to refer the claim to the DCS for consideration of entitlement to a TDIU prior to October 2003, to include on an extra schedular basis. Generally, a TDIU is assigned when a service-connected disability results in such impairment of mind or body that the average person would be precluded from following a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15. If there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be at least 70 percent. 38 C.F.R. § 4.16(a). However, 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 disability. 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 DCS for extraschedular consideration. In December 2020, the DCS rendered an administrative opinion. Therein, it was noted that prior to April 16, 2003, the Veteran was service-connected for migraine headaches evaluated at 50 percent disabling from June 1, 1994; intervertebral disc syndrome (IVDS) and spondylosis, thoracolumbar spine evaluated at 10 percent disabling from March 27, 2001; and impairment of feats of memory evaluated at 10 percent disabling from June 1, 1994. The combined overall evaluations were 60 percent disabling from June 1, 1994. According to the available evidence, the Veteran last worked in 1999 producing computer parts. In multiple lay statements, the Veteran reported headaches occurring several times per week. After onset, his symptoms persisted for 2 to 3 hours. As to his back condition, the Veteran reported an inability to push, pull, lift. Other limitations included difficulty ambulating, walking, lifting or standing for extended periods. Although he suffered from impaired memory, he maintained the ability to recall names and highly learned information. There is no evidence that the Veteran ever filed a request for disability benefits through the Social Security Administration. Although the record confirms that the Veteran’s service-connected conditions caused functional limitations, there is no evidence that the Veteran was rendered incapable of maintaining substantially gainful employment prior to April 16, 2003. Therefore, entitlement to a TDIU on extra-schedular benefits has not been established. While the Board recognizes the negative administrative findings, it will nevertheless conduct an independent evaluation of the evidence of record. In analyzing the meaning of “substantially gainful employment,” courts have concluded that “the test is whether a particular job is realistically within the physical and mental capabilities of the claimant.” Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), citing Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975). Accordingly, a veteran need not establish “100 percent unemployability” to prove an inability to maintain a “substantially gainful occupation;” the use of the word “substantially” suggests an intent to impart flexibility into a determination of the veteran’s overall employability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). To be granted TDIU, the veteran’s service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to age or to any impairment cause by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Unlike the general disability rating schedule, which is based on the average work-related impairment caused by a disability, a claim for “entitlement to TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must consider the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); see Friscia v. Brown, 7 Vet. App. 294 (1994); Beaty v. Brown, 6 Vet. App. 532 (1994); Moore v. Derwinski, 1 Vet. App. 356 (1991). In his VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability, the Veteran reported an inability to work since August 1999 due to chronic conditions that included back pain, memory loss, fatigue, headaches, and asthma. In his last employment endeavor, the Veteran worked for IBM producing computer parts. His highest level of education was listed as a high school diploma. Review of the record indicates that the Veteran’s claim for a TDIU was originally denied in a December 2001 rating decision. The Veteran did not appeal that decision. Again, in a January 2004 rating decision, the Veteran’s claim was denied. In June 2005, a VA Form 21-8940 was associated the claim’s file. Therein, the Veteran reported an inability to secure and maintain employment due to his service-connected disabilities, including a low back condition, memory loss/headaches and multiple non-service-conditions. The Veteran’s claim was denied for a third time in a rating decision, dated September 2005. The Veteran did not appeal that decision. Pursuant to Board’s decisions in August 2009 and January 2019, a claim for TDIU was inferred and remanded. In a February 2020 Board Decision, the Veteran’s claim for TDIU was granted and assigned an effective date of April 16, 2003. The date identified corresponds with the favorable findings that the schedular requirements were met. In the same decision, the Board remanded the Veteran’s claim to determine whether extra-schedular considerations support the grant of an earlier effective date. During the appeal period, the Veteran has been afforded multiple VA examinations. Among his service-connected disabilities, the medical evidence suggests that the Veteran’s lumbar spine disorder, migraine headaches, and memory impairment are most disabling. In July 2005, a private physician record suggested that the Veteran was unable to work due to multiple conditions that impaired his ability to management the physical strain and psychological stress associated with full-time employment. Specifically, the Veteran was deemed incapable of performing strenuous manual labor and performing heavy lifting overhead due to joint pain and chronic lumbar syndrome. Two years earlier, treatment records documented an ability to lift up to ten pounds and walk one third of a mile in April 2003. Other impairments include deficiencies in memory, concentration, and stamina which interfered with the Veteran’s ability to focus, work on consistent projects, and in groups. Due to his migraine headaches, his ability to work for prolonged periods on a computer screen was limited. Migraine headaches occurred twice weekly, with sensitivity to light and sound. Due to his physical and occupational impairments, the Veteran endorsed bouts with depressive symptoms. On examination in August 2007, the Veteran reported headaches five times per week, lasting from two hours to a full day after initial onset. In September 2016, a VA examiner concluded that the Veteran’s depressive disorder did not impair his ability communicate, follow instructions, use good judgment/insight, think abstractly, interact with customers and colleagues, adapt to work-related stress, or respond appropriately to supervision. Conversely, the examiner acknowledged that the Veteran would likely experience difficulty concentrating and remembering details of specific job tasks. A separate VA opinion, also dated September 2016, found that the Veteran’s thoracolumbar spine disability impaired his ability to engage in prolonged walking and standing or push, pull, and lift. In October 2018, an additional medical opinion was obtained to assess his ability to work. During the clinical interview, the Veteran reported an inability to work since 1999 due to his service-connected back pain, migraine headaches, and memory impairment. Given his frequent exacerbations of severe back pain, provoked by prolonged sitting, standing, and walking, and frequent migraines (triggered by stress or use of a computer screen), the physician opined that the Veteran would be unable to maintain employment. In support of the stated conclusion, the physician noted the Veteran’s complaints of worsening symptoms dating back to 1999. In November 2019, an updated opinion reached a similar conclusion with related rationale. A VA examiner determined that the Veteran’s thoracolumbar spine disability caused an inability to twist, turn, bend, lift, carry, jump, run, and walk for prolonged periods in June 2019. In making all determinations, the Board has fully considered all medical evidence and the lay assertions of record. Notably, multiple familial connections reported knowledge of the Veteran’s struggles with pain, physical limitations, memory/concentration deficits and depressive symptoms. Their impact on his activities of daily living and employability were described as significant. Considering the above, the Board finds that evidence does not support a finding the Veteran was incapable of maintaining employment prior to April 16, 2003, to include on an extraschedular basis. Through the appeal period, there is no evidence that the Veteran’s overall disability picture revealed exceptional symptoms prior to April 2003. As noted in the DCS administrative opinion, the record documents some physical limitations, headaches occurring twice weekly, and no impairment of memory as to highly skilled learning or training. However, from April 2003 forward, treatment records show complaints of debilitating headaches, an inability to lift objects heavier than ten pounds, walk more than one third of a mile, and memory impairments that interfere with concentration and stamina. The rating schedule was created as a guide to evaluating disabilities resulting from all types of diseases and injuries encountered, and the percentage ratings that are assigned represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. Accordingly, the Board finds that the Veteran had not been rendered unemployable due to his service-connected disabilities prior to April 16, 2003. 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). Thus, the Veteran’s claim of entitlement to a TDIU prior to April 16, 2003, must be denied. Timothy Berryman Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Whitaker, 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.