Citation Nr: 21015192 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 12-33 945A DATE: March 16, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), on an extraschedular basis, is denied. FINDING OF FACT The Veteran’s service-connected disabilities are not shown to preclude the Veteran from obtaining or maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from October 1973 to November 1973, and then in the United States Army from June 1974 to June 1977, and from July 1977 to June 1998. In September 2016, the issue was raised under Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) and remanded by the Board of Veterans’ Appeals (Board). In September 2020, the issue was again remanded for extraschedular consideration. TDIU The Veteran contends that his service-connected post traumatic headaches prevent him from securing or following any substantially gainful employment. See Veteran’s Application for Increased Compensation Based on Unemployability (VA Form 21-8940) received June 2017. In the Board’s recent September 2020 decision, the claim was remanded for referral to the Director of Compensation Service for consideration of a TDIU on an extraschedular basis. Thereafter, the record shows that entitlement to a TDIU, to include on an extraschedular basis, was adjudicated by the AOJ in the first instance. See Supplemental Statement of the Case (SSOC) dated December 2020. As explained below, after a review of the competent evidence of record, the Board finds that entitlement to a TDIU, to include on an extraschedular basis, is not warranted. Total disability will be considered to exist 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. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and that, 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 70 percent or more. 38 C.F.R. § 4.16(a). If, however, the veteran does not meet these required percentage standards set forth in 38 C.F.R. § 4.16(a), he still may receive a TDIU on an extraschedular basis if it is determined that he is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. 38 C.F.R. § 4.16(b); See also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, there must be a determination as to whether there are circumstances in this case, apart from any non-service connected conditions and advancing age, which would justify a total rating based on unemployability. See Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. “While the term ‘substantially gainful occupation’ may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent.” Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). Assignment of a TDIU evaluation requires that the record reflect some factor that “takes the claimant’s case outside the norm” of any other veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Id. The Board is precluded from assigning an extraschedular rating in the first instance. Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008); see also Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Here, the Veteran does not meet the schedular rating criteria for a TDIU. He is service connected for post traumatic headache disorder, rated at 50 percent; residuals of fracture, left ankle rated at 10 percent; noncompensable scar eyebrow; with a combined disability rating of 20 percent from August 1998, and 60 percent from September 2010. See 38 C.F.R. §§ 4.16(a), 4.25, 4.26. As the Veteran does not meet the applicable percentage standards, the Board must consider whether the Veteran is nevertheless unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, in particular his post traumatic headaches. See 38 C.F.R. § 4.16(b). In his formal application (VA Form 21-8940) received in June 2017, the Veteran indicated he worked for DHS/TSA in Security, last worked full-time in June 2015. He indicated he completed two years of college. A response from the Veteran’s previous employer indicates that the Veteran worked full-time for the Transportation Security Administration from May 2002 to June 2015 and had voluntary retirement. There were no concessions made by reason of disability. See Form VA 21-4192 Request for Employment Information in Connection with Claim for Disability Benefits received October 2017. The record shows a September 2015 VA examination for headaches. The VA examiner indicated that the Veteran’s headaches impacted his ability to work. In the description, the examiner noted, “Veteran states that he retired from being a TSA instructor because of his headaches in June 2015.” See VA examination dated September 2015. In compliance with the Board’s September 2016 remand, the Veteran was afforded a VA contract examination in July 2017. The examiner indicated that the Veteran’s headaches impacted his ability to work. The examiner described the impact and stated, “[d]uring a headache episode the veteran is unable to concentrate and is unable to be around lights. He has to lay down in bed, in a dark room during headache episode. The veteran cannot function in a work place environment due to needing to lay in bed in a dark quiet environment.” See VA contract examination dated July 2017. In compliance with the Board’s September 2020 remand, the record shows a December 2020 Advisory Opinion issued by the Director of Compensation Services. The Director indicated consideration of the medical evidence showing that “the veteran has prostrating attacks of headache pain which requires him to lay in bed in a dark quiet environment during the headache episodes. These episodes occur 3 to 4 times a month.” Although the Director noted some limitation, the Director explained that “[t]ere are many jobs in the workforce that require only light activity and for which a person with a high school education would be capable of performing… In this instant case, it should be noted the Veteran has multiple years of college education, thus there is an aptitude shown to be able to learn new skills. Additionally, there are job opportunities where employers allow their employees to work from home which would allow for breaks during the workday to lay down in a quiet dark room until the episode is over.” After giving consideration of relevant evidence, including Veteran’s education, training and work history, the Director determined that the overall evidence failed to support the contention that any of the service-connected disabilities or a combination of the effects of those disabilities support an exceptional situation that prevented gainful employment. See December 2020 Advisory Opinion from B.M., Executive Director of Compensation Service. A review of the evidence of record, taken in total, does not suggest that the Veteran is unable to obtain or maintain substantially gainful employment solely as a result of his service-connected disabilities, namely his post traumatic headaches. Indeed, the record shows that September 2015 and July 2017 VA examiners finding the Veteran’s headaches impacted his ability to work. However, the July 2017 examiner specifically described that the functional impact was “during a headache episode”. During these episodes, which occur 3 to 4 times a month, the Veteran “has to lay down in bed, in a dark room during headache episode.” To that end, the Board assigns greater weight to the December 2020 Advisory Opinion from the Executive Director of Compensation Service. The Director provided a similar analysis with consideration of the Veteran’s education, training and work history, and determined that extraschedular TDIU was not established. The Board agrees that the competent evidence of record does not support a finding that the Veteran’s service-connected disabilities or a combination of the effects of those disabilities support an exceptional situation that prevent gainful employment. Lastly, the Veteran has also not identified or submitted evidence demonstrating that his service-connected disabilities preclude him from securing and maintaining substantially gainful employment. The rating schedule was created as a guide to evaluating disability 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, TDIU including on an extraschedular basis is denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. An, Associate 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.