Citation Nr: 21020925 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 16-56 940 DATE: April 8, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted. FINDING OF FACT The competent and credible evidence demonstrates that it is at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for an award of a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from July 1988 to September 1992. His decorations include the Southwest Asia Service Medal and the Kuwait Liberation Medal. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision issued by the Department of Veterans Affairs (VA) Appeals Management Center (AMC). The AMC implemented a June 2015 Board decision that granted service connection for chronic headaches, assigning a 10 percent rating therefor from April 1, 2009. In March 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge, sitting in St. Louis, Missouri. A transcript of that hearing has been associated with the record. In an April 2020 decision, the Board granted an initial 50 percent rating for the Veteran’s chronic headaches. The Board also found that the record had reasonably raised the issue of his entitlement to a TDIU as part of parcel of his claim for a higher rating for headaches. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board remanded the TDIU issue to the agency of original jurisdiction (AOJ) for additional development, directing the AOJ to ask the Veteran to complete a VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability) and to obtain updated VA treatment records. In July 2020, the AOJ sent the application as directed and obtained updated VA treatment records. There has been at least substantial compliance with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to a TDIU The Veteran contends that he is unable to work due to his service-connected disabilities. He submitted a TDIU application in September 2020 in which he stated that his chronic headaches, vertigo, and fibromyalgia were service-connected disabilities that prevented work. A total disability rating for compensation may be assigned where the schedular rating is less than total and when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). If there is only one such disability, this disability shall be ratable at 60 percent or more, and 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. Unlike the rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. at 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). A veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Substantially gainful employment is employment which is ordinarily followed by the nondisabled 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). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-55 (1990). As an initial matter, the Board notes that the Veteran is currently service connected for chronic headaches with a 50 percent rating, right shoulder impingement with degenerative joint disease with a 30 percent rating, left shoulder rotator cuff syndrome with a 10 percent rating, and fibromyalgia with a 0 (zero) (noncompensable) rating. His combined rating is 70 percent. He thus meets the schedular requirements for a TDIU. In his September 2020 TDIU application, the Veteran stated that he previously worked full time as a mechanic, cashier, and machine specialist, and that he last worked full time in March or April 2003. He further stated that his wife was self-employed and had a small cleaning business, and that he sometimes accompanied her and helped but that he had not been able to go all the time on her scheduled days. He explained that his involvement was very minimal due to dependability and limitations, that she accommodated his disabilities, that it was only a couple of days a week, that he did not help when his headaches flared up, and that he worked at his own pace. He also described that he attempted to undertake the work in the cleaning business full-time in 2016, but that he did not work more than a few weeks due to his disabilities which caused absenteeism and poor quality work. The Veteran underwent a VA examination in August 2009 to determine the severity of his chronic headaches. The examiner stated that the disability had significant effects on the Veteran’s usual occupational functioning, resulting in the assignment of different duties, increased absenteeism, decreased concentration, inappropriate behavior, poor social interactions, problems with lifting and carrying, weakness or fatigue, pain, the need for more breaks, and that he sometimes could not go to work. The Veteran underwent another VA examination for the same purpose in November 2012, when the examiner opined that the Veteran would have frequent absenteeism due to headaches, estimated at 6 days a month. The Veteran underwent a VA examination to determine the severity of his shoulder disabilities in April 2014. The examiner opined that the Veteran was unable to work vigorously with either arm and was unable to work with his hands above shoulder level for any significant duration. The Veteran underwent an additional VA examination in April 2014 to determine the severity of his fibromyalgia. While the examiner indicated that the condition impacted his ability to work, he did not provide any additional information as to how it would do so. The Veteran underwent another VA examination in September 2016 to determine the severity of his chronic headaches. The examiner indicated that the condition impacted his ability to work but stated only that the Veteran reported that he stopped working in 2004 and that he claimed headaches prevented him from working. The Veteran underwent a VA examination for ear conditions, including vestibular and infectious conditions, in April 2017. The examiner diagnosed vestibular migraine and opined that the Veteran could not work due to migraine, vertigo, and nausea, and that he reported migraines lasting as long as several days accompanied by vertigo lasting for several days. The record also contains records pertaining to an August 2013 application for Social Security Administration (SSA) disability benefits. It appears from the records that SSA found that the Veteran was able to perform medium level work, including his past relevant work, and that he was not disabled pursuant to their guidelines. Although SSA determinations are not binding on the Board, they are relevant, and the records relied upon to make SSA determinations are probative evidence specifically in consideration of the Veteran’s claim for TDIU. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). Based on review of the record in its totality, the Board finds that the criteria for a TDIU have been met. The VA medical opinions from August 2009, November 2012, and April 2017 all strongly indicate or expressly state that the Veteran’s headaches prevent him from working. The April 2014 VA medical opinion regarding his service-connected shoulder disabilities shows that those disabilities also significantly impact his work function. While the April 2014 VA opinion regarding fibromyalgia and the September 2016 VA opinion regarding headaches do not provide information regarding specific limitations related to the Veteran’s occupational functioning, they also do not contradict or cast doubt on the findings of the other opinions of record, all of which indicate that the Veteran’s service-connected disabilities cause severe occupational limitations. The Board has considered the SSA decision of record and finds it to be unpersuasive. The decision was rendered in 2013, prior to when much of the VA examination and opinion evidence was obtained, and in any event, SSA decisions are not binding on the Board. See Collier, supra. Finally, the Board has considered the part-time cleaning work the Veteran has performed since 2003. Given his description regarding the number of hours and days worked, the fleeting nature of his ability to undertake the work, and the fact that it is a family business which can easily accommodate him, the Board finds that this employment, if even rising to that level, is marginal. 38 C.F.R. § 4.16(a); Moore, supra. Resolving reasonable doubt in favor of the Veteran, a TDIU is warranted. In arriving at this conclusion, the Board intimates no opinion, either legal or factual, as to the appropriate effective date of the award. That matter will be addressed by the AOJ when the award is effectuated. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Oldroyd, 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.