Citation Nr: 21024634 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 16-50 151 DATE: April 23, 2021 ORDER Entitlement to a finding of total disability based on individual unemployability (TDIU) prior to October 12, 2020, is granted. FINDING OF FACT Prior to October 12, 2020, the Veteran’s service-connected disabilities prevented her from securing and following substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to TDIU prior to May 10, 2010, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.41, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1970 to September 1971 and from December 1973 to November 1974. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The matter was previously before the Board in December 2019, when it was remanded as inextricably intertwined with the Veteran’s other claims. A December 2020 rating decision then granted entitlement to TDIU effective October 12, 2020, and, following some development, referred the question of entitlement prior to that date to the Director, Compensation and Pension Service, for consideration of extraschedular entitlement. In a January 2021 decision, the Director denied the benefit sought, and the RO issued a supplemental statement of the case (SSOC). The question of entitlement to TDIU prior to October 12, 2020, is now returned to the Board. 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. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU may be granted on an extraschedular basis if the evidence establishes that a claimant is unable to secure and follow a substantially gainful occupation because of a service-connected disability. See 38 C.F.R. § 4.16(b). Substantially gainful employment means, essentially, that the work provides income above the poverty level established by the United States Department of Commerce, without benefit of protected family employment or a sheltered workshop. 38 C.F.R. § 4.16(a). There is no requirement that employment be in a certain field or provide a certain standard of living or income level beyond the poverty level. Marginal employment or employment in a protected environment is not considered substantially gainful employment. Factors to be considered in determining entitlement to a TDIU include but are not limited to employment history, educational achievement, and vocational attainment. Age is not a factor. 38 C.F.R. § 4.16(a). Basic eligibility for TDIU is established where there is one disability rated 60 percent or more, or multiple disabilities rated at least a combined 70 percent, with one disability rated at least 40 percent. The Veteran meets the schedular requirement for TDIU only since October 12, 2020 onward; prior to that date, service connected migraines (50 percent) and low back disability (20 percent) combined to a 60 percent rating and are not a “single disability.” A Decision Review Officer (DRO) from the Oakland RO submitted the Veteran’s claim to the VA’s Director of Compensation and Pension for extraschedular consideration. The DRO included a recommendation that entitlement to a TDIU in an extraschedular basis be granted prior to October 12, 2020. The Director of Compensation and Pension found that service connection on an extraschedular basis was not warranted. The Board disagrees. The Veteran has prior work experience as a cashier, manicurist, and dental hygienist. The Veteran last worked as a cashier on January 11, 2019. During an August 2019 hearing, the Veteran testified that her migraines and back disability were significant factors that led to leaving her cashier position. She explained that she has four to five migraines a week that last up to four hours. Additionally, her frequent migraines would qualify as a prostrating attack requiring her to be isolated from light and noise and require medication and ice packs. The daily migraines resulted in the Veteran being unable to complete a full day of work without missing a least a portion of it due to her service-connected disabilities. An October 2020 VA back examination described the function impact of her back disability as being unable to bend at the waist to retrieve something off the ground or low height, unable to lift large items or heavy items, having difficulty sitting, standing or walking for prolonged periods of time, having difficulty ascending or descending stairs or climbing ladders, unable to drive for long distances. She must also change position frequently from sitting to standing, requires frequent rest periods or breaks. When flare-ups occur, pain is too intense to continue work, focus on tasks, or concentrate. She is easily fatigued and irritable due to sustained pain. The Veteran stated that she takes strong medication, including morphine, “around the clock” to deal with pain. The examiner also noted that the Veteran was unable to remove her own socks and shoes on her own during the exam. Prior to October 12, 2020, the Board finds that migraines, rated as 50 percent disabling from August 2011, and back disability, rated as 20 percent disabling from August 2011, impaired the Veteran to such an extent that she was unable to secure and follow substantially gainful in light of her vocational and occupational history. Although none of her prior occupations required heavy lifting, they all required sitting or standing for prolonged periods of time. In addition to the Veteran’s physical limitations, her migraines prevent her from being able to complete a full workday. As such, the Board finds that the preponderance of the evidence supports entitlement to a TDIU on an extraschedular basis prior to October 12, 2020 WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Nolan, Shane D. 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.