Citation Nr: 21026080 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 15-12 565 DATE: April 29, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis prior to August 13, 2013, is granted. FINDINGS OF FACT 1. Prior to August 13, 2013, service connection for migraine headaches (30% from April 10, 2007 to February 27, 2011 and 50% from February 28, 2011) and tinnitus (rated at 10 percent from June 2, 2011). The Veteran’s combined disability rating prior to August 13, 2013 was 30% from April 10, 2007 to February 27, 2011; 50% from February 28, 2011 to June1, 2011; and 60% June 2, 2011. 2. Resolving reasonable doubt in the Veteran’s favor, prior to August 13, 2013, his service-connected disabilities precluded him from securing and following a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU on an extraschedular basis prior to August 13, 2013, have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 2003 to April 2007. In October 2017 and December 2018, the Board of Veterans’ Appeals (Board) remanded this appeal further development, including (in December 2018) a referral to the Director of Compensation and Pension Services (Director) for consideration of the assignment of an extraschedular rating prior to August 13, 2013. A response was obtained in January 2020. Subsequently, in March 2020, the Board denied the issue of entitlement to a TDIU on an extraschedular basis prior to August 13, 2013. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In November 2020, the Court granted a Joint Motion for Remand (JMR) requesting vacatur and remand of the Board’s decision. Entitlement to a TDIU on an extraschedular basis prior to August 13, 2013 The November 2020 JMR found that the Board erred in failing to address potentially favorable evidence of record. In requesting that this matter be returned to the Board, the JMR found that the Board should specifically address the applicable case of Ray v. Wilkie, 31 Vet. App. 58 (2019), and to refer the matter of entitlement to a TDIU on an extraschedular basis to the Director. After review of the record, the Board finds that the record already contains a January 2020 memorandum from the Director addressing entitlement to a TDIU, to include on an extraschedular basis, prior to August 13, 2013, and that the evidence of record demonstrates that a TDIU on an extraschedular basis is warranted prior to August 13, 2013. As a grant of the benefit sought is warranted based on the evidence of record, the Board finds that the Veteran is not prejudiced by appellate consideration of the claim at this juncture and that further development action is not necessary. The Veteran contends that entitlement to TDIU prior to August 13, 2013, to include on an extraschedular basis, is warranted. The Board notes that, generally, a total disability will be considered to exist when there is present any impairment of mind or body that 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 are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned 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, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The central inquiry is “whether [a] veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Halstead v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to a Veteran’s education, special training, and previous work experience, but not to his or her age or to the impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993).  For the veteran to prevail in a claim for TDIU, the record must reflect circumstances, apart from nonservice-connected conditions, that place him or her in a different position than other veterans who meet the basic schedular criteria. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high 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. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Court recently defined “substantially gainful employment” and, in so doing, held that the term includes both economic and noneconomic components. 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,” while the noneconomic component requires consideration of a veteran’s ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58 (2019). The Court set forth a number of factors to consider in making the latter determination, including the following: the Veteran’s history, education, skill, and training; his or her physical abilities, including any audio or visual limitations, as well as limitations in lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching; and his or her mental ability, including limitations in memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Id. Although the Veteran has not met the schedular percentage requirement prior to August 13, 2013, he may still be considered for a TDIU rating under 38 C.F.R. § 4.16(b) on an extraschedular basis, if unemployable by reason of service-connected disabilities that do not meet the percentage standards set forth in § 4.16(a). Rating boards should refer to the Director of the Compensation and Pension Service for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16 (a). His service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). Pursuant to the December 2018 Board remand, this matter was referred to the Director of Compensation and Pension Services for an opinion on the issue of a TDIU on an extraschedular basis prior to August 13, 2013. In January 2020, the RO issued a memorandum recommendation for denial of an extraschedular TDIU. In January 2020, the Director had concluded that an extraschedular TDIU was not warranted. However, pursuant to Wages v. McDonald, 27 Vet. App. 233, 236 (2015), nothing in the language of 38 C.F.R. § 4.16(b) purports to limit the Board’s scope of review of the Director’s decision, and the Board is the final authority on all benefits decisions under 38 U.S.C. § 7104(a). As such, the Board will make its own decision regarding whether a TDIU on an extraschedular basis is warranted. Prior to August 13, 2013, the Veteran was service connected for the following: migraine headaches (30% from April 10, 2007, and 50% from February 28, 2011) and tinnitus (10% from June 2, 2011). The Veteran had a combined schedular disability rating of 30 percent from April 10, 2007; 50 percent from February 28, 2011; and 60 percent from June 2, 2011. Thus, prior to August 13, 2013, he did not meet the schedular requirement for a TDIU. However, after reviewing the evidence, in the remand portion of the December 2018 decision, the Board found that referral of the TDIU issue for extraschedular consideration prior to August 13, 2013, was warranted and requested an opinion from the Director of Compensation and Pension Service. After indicating consideration of all relevant evidence including the Veteran’s education and work history, the Director then determined that the overall evidence fails to support the contention that any of the Veteran’s service-connected disabilities, or a combination thereof, prevented gainful employment prior to August 13, 2013. While the Board appreciates the Director’s opinion, that opinion appears to have been based on an incorrect standard. The Director noted that, to grant a TDIU on an extraschedular basis, the majority of the evidence should clearly show that the service-connected disabilities are by themselves the cause of the Veteran’s inability to obtain and maintain gainful employment. That standard is higher than the preponderance of the evidence standard that should have been applied. Thus, the Director’s opinion is of limited probative value. Hayes v. Brown, 9 Vet. App. 67 (1996). As such, the Board will now turn to a discussion of some of the favorable evidence of record. An August 2007 VA headaches examiner noted that, when the Veteran’s headache attacks occur, he cannot go to work. The examiner noted that the attacks occur about eight times a month and last for more than half a day. At that time, the Veteran reported that he was working in human resources. (He had continued working, as noted at VA treatment visits in August 2008.) At a November 2008 VA headaches examination, the Veteran reported that, when his headaches occur, he has to stay in bed and is unable to do anything. He reported that these headaches occurred about 10 times a month and lasted for almost a day and that, when the headaches come, he is unable to function and needs to be bedridden due to the pain, nausea, and sensitivity to light and sound. The examiner noted that the Veteran is occupationally limited when his headaches hit. In a January 2009 VA treatment visit, the Veteran reported getting a new human resources job in December of 2008. However, in June 2009, the Veteran reported having lost that job. In July and August 2009, the Veteran reported that he was working on going back to school after being laid off from his job. At a September 2010 VA headaches examination, the Veteran reported that he needs to lay down in a dark room when he gets his headaches and that he tried to remain working but was unable to do so. He reported he gets headaches 6 times per month which last 1 to 2 days at a time. The examiner noted that the Veteran’s migraine headaches result in increased absenteeism and that the Veteran reported he was laid off from his last human resources position in May 2009 and was back in school to obtain a bachelor’s degree. A February 2011 letter from the Veteran’s treating neurologist, Dr. A.B., explained that the Veteran experiences six severe migraine headaches per month and that, when these headaches occur, he is unable to function. The Veteran’s neurologist explained that the symptoms and prostrating nature of his headaches require that he lie down when they occur and prevent him from even being able to attend school full-time. The examiner opined that the Veteran would be unable to function in an employment situation due to the frequency and severity of his headaches. In an April 2011 statement, the Veteran reported that he was attending classes at a local college, but that, due to his headaches, he was unable to attend classes full-time. He reported that he still misses 1 to 2 days a week of classes due to migraines and that he had to miss multiple days of work per month at his prior employment. The Veteran reported the same information to his VA migraines examiner in April 2011 and the examiner noted that the Veteran reported needing bedrest over 70 times in the last year due to his migraines. The examiner noted that the Veteran was currently a student and had been laid off from his previous position. The examiner noted that the Veteran’s prostrating migraine attacks, which occur 4 to 6 times a month, result in increased absenteeism and lead to decreased concentration, inappropriate behavior, difficulty following instructions, vision difficulty, and pain. The examiner noted that the Veteran’s migraine headaches also prevent him from taking a full course load. At a June 2011 VA migraine headaches examination, the examiner indicated that the Veteran’s migraine headaches result in him needing to be out of school some days, but that there was no effect on his usual occupation. The examiner opined that, when the Veteran is not having a headache, he is able to work full time without any problems. However, the examiner also noted that the Veteran’s headaches occur as frequently as twice a week, can last up to 24 hours, and require him to lay down in a dark, quiet place, conditions that would not lend towards being able to work when his headaches occur. A response from the Veteran’s former employer, received in August 2011, explained that the Veteran worked until May 2009 when he was laid off due to his failure to qualify during his probationary period. An October 2011 VA tinnitus examination report indicated that the Veteran’s service-connected tinnitus does not have a significant effect on his employment. In an August 2013 statement, the Veteran stated that his migraine headaches impacted his ability to hold down a job. He reported that he had to use his earned leave and sick leave with prior employers and reported that in a month, he averages 5 to 10 migraine attacks that leave him bedridden and last anywhere from 8 hours to up to 2 days. During VA treatment visits throughout the spring of 2013, the Veteran repeatedly voiced his concerns about his ability to obtain employment and his ability to finish school part-time due to his migraine headaches. A private medical opinion is of record from May 2016, and such offers the best overall picture of the Veteran’s employability prior to August 13, 2013. The private examiner reviewed the Veteran’s claims file and gave a comprehensive overview of the pertinent medical evidence in the Veteran’s file prior to providing an opinion. While the examiner discussed both the Veteran’s migraine headaches and major depressive disorder, the examiner indicated that the Veteran’s migraine headaches alone, and in combination, render him completely disabled. In so concluding, the examiner noted that, by 2007, the Veteran was no longer capable of managing in a reasonable occupational environment, as he would need constant days off due to his headaches. The examiner indicated that the Veteran would be unable to go to work on a daily basis and stay at work and that he would be unable to interact appropriately with coworkers, the public, or supervisors in a consistent fashion. Based on the Veteran’s report of the severity and frequency of his migraine headaches, the examiner stated that the Veteran would be incapable of functioning in an occupational setting for 12 to 20 days a month and that there is no occupational setting wherein this level of absenteeism would be accepted. The examiner pointed out that, despite the Veteran’s attempts to return to school and to obtain other employment, he ultimately has not been able to function in those settings and that, given his disability picture, he would be unable to function in any occupational setting or to obtain or maintain substantially gainful employment. Given the above, the record indicates that the Veteran was laid off in May 2009, tried to go back to school part-time due to his migraine headaches disability, and worked for two months as a file clerk from June to August 2013, but has not been substantially, gainfully employed since at least 2009. While he tried to keep up with classes and obtain other jobs, he has been unable to maintain them due mostly to the incapacitating nature of his service-connected migraine headaches and his absenteeism when experiencing headaches. The majority of the VA examiners who commented on the functional impact of the Veteran’s service-connected migraine headaches, in particular, indicated that the disability would impact the Veteran’s ability to perform any type of occupation. Furthermore, the incapacitating nature of the Veteran’s migraine headaches—which can occur up to 20 days a month—clearly render him unable to perform in any occupational setting, whether physical in nature or not. When the Veteran gets migraine attacks, it is well documented that he is unable to function or focus on tasks. The majority of the VA examiners and the private examiner indicated that the Veteran’s migraine headaches prompt the need to lay down in a dark, quiet room. In those times, he would be unable to perform physical work, his headaches would render him unreliable and unproductive when they occur, and the evidence suggests that they occur very frequently. Ray v. Wilkie, 31 Vet. App. 58 (2019). As noted herein, the Veteran has already been granted a TDIU on a schedular basis effective from August 13, 2013, when the same service-connected disabilities at issue here—with the added service-connected major depressive disorder—met the schedular requirement for a TDIU. Thus, resolving reasonable doubt in the Veteran’s favor, the Board finds that, prior to August 13, 2013, his service-connected disabilities precluded him from securing and following substantially gainful occupation. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the appeal is granted. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Goreham 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.