Citation Nr: 21023348 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 14-43 733 DATE: April 20, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) prior to February 28, 2008, is denied. FINDING OF FACT Prior to February 28, 2008, the Veteran was not precluded from securing and maintaining substantially gainful employment by reason of his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to TDIU prior to February 28, 2008, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.25, 4.26. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty in the United Army from August 1980 to August 1984. He had additional service in the Army Reserves from August 1984 to August 1986 and the Air National Guard from May 1991 to May 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans’ Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. This matter was remanded in June 2018. There has been at least substantial compliance with the Board’s remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to TDIU prior to February 28, 2008, is denied. The Veteran seeks entitlement to TDIU prior to February 28, 2008, claiming that he was unable to work due to service-connected disabilities, specifically his service-connected headaches. TDIU has already been granted from February 28, 2008. TDIU on a schedular basis prior to February 28, 2008, is not warranted because the Veteran did not meet the numeric requirements for schedular TDIU under 38 C.F.R. § 4.16 (a). Where the schedular rating is less than total, a TDIU may be assigned when it is found that a veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16 (a). Prior to February 28, 2008, the Veteran was service connected for residuals of left eyebrow laceration, rated as 10 percent disabling; a left eyebrow scar, rated as 10 percent disabling; and headaches, assigned a noncompensable (0 percent) rating. His combined disability evaluation was 20 percent. Thus, the Veteran did not meet the requirements for TDIU on a schedular basis. Additionally, he does not meet the criteria for referral for extraschedular TDIU. If a claimant is found to be unemployable because of service-connected disabilities, but does not meet the percentage standards set forth in § 4.16(a), the rating authority should refer the matter to the director of the Compensation Service for extraschedular TDIU consideration. 38 C.F.R. § 4.16 (b). The question is whether the Veteran was unable to pursue a substantially gainful occupation due to his service-connected disabilities prior to February 28, 2008. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed.Cir.2001). Whether the Veteran could actually find employment is not determinative, as the focus of the inquiry is on “whether the veteran is capable of performing the physical and mental acts required by employment.” Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Board cannot consider entitlement to TDIU on an extraschedular basis in the first instance, but it is required to ensure that all cases where there is evidence of unemployability due to service connected conditions are referred to the Director for initial consideration under 38 C.F.R. § 4.16 (b). Bowling v. Principi, 15 Vet. App. 1 (2001). The term “unable to secure and follow a substantially gainful occupation” in § 4.16(b) is defined as having two components: one economic and one noneconomic. See Ray v. Wilkie, 31 Vet. App. 58, 73 (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. The non-economic component includes consideration of the following: the Veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Id. In determining whether the Veteran is entitled to a TDIU, neither his nonservice-connected disabilities nor his advancing age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Fanning v. Brown, 4 Vet. App. 225 (1993); Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993); and Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992). The test of individual unemployability is whether the Veteran, as a result of his service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation that is consistent with his level of education, prior work experience, and training. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. The initial extraschedular referral decision under § 4.16(b) should address whether there is “sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities.” Ray v. Wilkie, 31 Vet. App. 58, 66 (2019). Here, for the following reasons, a preponderance of the evidence weighs against a remand for referral for extraschedular consideration of TDIU. There is conflicting evidence of record regarding when the Veteran was last employed and the cause of his unemployment. In a June 2004 Statement in Support of Claim, the Veteran reported that he was missing work because of his headaches. On the VA Form 21-8940, Application for Increased Compensation based on Individual Unemployability benefits received in December 2009, the Veteran contended that he was unable to work due to back problems and migraine headaches. He reported his last date of full-time employment in November 2008 as a truck driver for Phoenix Courier, with highest earnings in one month of $1,600.00. He noted working from May 2008 to November 2008 for Phoenix Courier. Prior to that, he worked for American Furniture as a delivery driver from February 2008 to April 2008 and for Trailways Bus Company from May 2007 to January 2008. The highest earnings in one month from American Furniture were $1,100.00 and from Trailways Bus were $2,200.00. On the VA Form 21-8940, Application for Increased Compensation based on Individual Unemployability benefits received in July 2011, the Veteran contended that he was unable to work due to a psychiatric disorder, neck and back arthritis, left hand injury, and migraine headaches. He reported his last date of full-time employment was in January 2009 as a truck driver for Phoenix Courier. The highest earnings in one month was noted be $1,300.00. However, he also reported working 40 hours per week from October 2009 to April 2010 for Phoenix Courier, which appears to contradict his claim that he last worked full-time in January 2009. He also listed prior employment for American Furniture as a delivery driver from August 2003 to May 2004 and for Trailways Bus Company from May 2008 to January 2009. The highest earnings in one month for American Furniture were $800.00 and for Trailways Bus were $1,400.00. In December 2012, the Veteran submitted another VA Form 21-8940, Application for Increased Compensation based on Individual Unemployability. He claimed to be unable to work due to migraine headaches and scars. He reported his last date of full-time employment was in July 2009 as a truck driver for Phoenix Courier. He worked 40 hours per week from February 2009 to July 2009 for Phoenix Courier and earned $1,200.00 every two weeks. Prior to that, he worked for Trailways Bus Company from May 2008 to January 2009. His highest earnings in one month for Trailways Bus were $1,7800.00. In July 2015, the Veteran submitted a fourth VA Form 21-8940, Application for Increased Compensation based on Individual Unemployability. He contended he was unable to work due to migraine headaches, spinal stenosis, and depression. He reported his last date of full-time employment to be in January 2010 as a bus driver for Capitol Trailways. He worked there 40 hours per week from August 2009 to January 2010, and his highest earnings in one month were $2,400.00. Prior to that, he worked for Phoenix Courier as a truck driver. He reported that he worked 40 hours per week from February 2009 to August 2009 for Phoenix Courier, and his highest earnings in one month were $2,100.00. He also reported working for American Furniture as a truck driver from May 2003 to August 2004. A completed VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits from Trailways Bus Company reported that they employed the Veteran as a bus driver from September 26, 2007, to January 8, 2008, but that his employment ended when they fired him. They did not provide a reason for the Veteran's termination. Completed VA Forms 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits from Phoenix Courier were received in 2009, 2013, and 2015. All noted that the company had employed the Veteran as a part-time truck driver from April 22, 2008, to November 20, 2008, but had to let him go because he had a suspended license which he did not tell them about. The total amount of compensation for this period of employment was $10,381.78. At a February 2004 VA neurological examination, the Veteran reported that for many years he was able to work as a truck driver despite his headache disorder, but had recently developed diabetes and was unable to drive his truck because of his use of insulin. At a September 2006 VA examination, the Veteran complained of three to four headaches a week, which he reported had interfered with his work in the past. A VA neurological examination of February 28, 2008 noted that the Veteran has post-traumatic headaches, migrainous and muscle contraction in nature, which had increased in frequency and severity. The migrainous type headaches were prostrating, occurring two to three times per week, lasting up to a day at each time. The examiner stated that the Veteran is unable to work during this type of headache, and certainly unable to sustain typical type of work as a driver or work at an occupation where he is exposed to excessive light or from which he cannot safely take breaks. At a July 2009 VA examination of the Veteran's service-connected scar and residuals of laceration, left eyebrow, the Veteran complained of pain, tenderness, twitching of the muscles underlying the scars, and migraine headaches with photophobia. The Veteran reported that his migraines force him to stop all activity, particularly physical activity. Based on the Veteran's self-report, the examiner concluded that the Veteran's migraines would cause moderate to severe impairment with both sedentary and physical employment. The examiner described the Veteran's left eyebrow scar as superficial. He stated that it is not unstable or deep. There was no underlying soft tissue loss or damage, inflammation, edema, or keloid formation. Although the scar is on the Veteran's face and the Veteran considers it disfiguring, there is no significant gross distortion or asymmetry of any features or sets of paired features of the face, no significant gross distortion or asymmetry of the paired features of the eyebrows, no areas of induration or inflexibility of skin in the area of the scar, and no limitation of motion or other limitation of function caused by the scar. A VA neurological examination of June 30, 2010, reported that the Veteran was previously employed as a bus driver but has not worked for the past two years for medical reasons. The report noted that there would be no work restrictions on a neurological basis. There were no incapacitating episodes within the past 12 months. VA headache examinations of March 28, 2013, and April 29, 2013, noted a diagnosis of migraine and tension headaches. The report noted that the headache condition impacts the ability to work. The examiner explained that headaches occurring up to three times per month could interfere with some types of employment, but also pointed out that in the past, the Veteran was able to work with his headaches. VA treatment records reflect that the Veteran was hospitalized in July 2004 for depression, in August 2004 for schizoaffective disorder, and December 2004 for depression. He was hospitalized in December 2008 for suicidal ideation. The record also reflects that Veteran was incarcerated for robbery beginning in May 2005 through March 2007. The above evidence reflects that that the Veteran was gainfully employed prior to February 2008 as a driver and that when he was not employed, the cause was not his service-connected disabilities, but rather his nonservice-connected psychiatric problems and a nearly two-year incarceration. Neither of the Veteran's former employers, Phoenix Courier and Trailways Bus Company, reported that they terminated his employment because of a service-connected disability. Rather, Phoenix Courier terminated the Veteran's employment because he was driving without a license, while Trailways Bus Company fired him. Furthermore, the preponderance of the evidence weighs against finding that the Veteran's residuals of left eyebrow laceration, rated as 10 percent disabling; a left eyebrow scar, rated as 10 percent disabling; and headaches, assigned a noncompensable (0 percent) rating, were alone so disabling as to prevent him from finding or maintaining substantially gainful employment prior to February 28, 2008. The Veteran's left eyebrow scar is superficial and causes no more than minimal impairment. And while the Veteran has claimed that his headaches are so severe that he could not work, the Board does not find these contentions to be credible. The Veteran apparently continued to work as a driver from 2007 into 2010, which contradicts his contentions that his headaches are so severe that he was unable to work. Additionally, the Veteran has at times made statements attributing his inability to work to nonservice-connected disabilities including diabetes mellitus, a back disability, and an acquired psychiatric disability. Such statements not only contradict his contentions that he is unable to work because of his headaches, but they contradict the reasons provided by his former employers for why his past employment has ended. The Board notes that credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995). Here, because of the Veteran's inconsistent statements, the Board finds his testimony concerning the severity of his service-connected disability and the effects of those disabilities on his occupational functioning to have limited probative value. Therefore, the Board finds that the preponderance of the evidence weighs against finding that the Veteran was unemployable solely by reason of his service-connected disabilities prior to February 28, 2008, such that referral for an award of extraschedular TDIU is warranted. For all the above reasons, entitlement to a TDIU prior to February 28, 2008, is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A. Zenzano Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E.D. Anderson, 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.