Citation Nr: A21008376 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 200213-62550 DATE: April 26, 2021 ORDER Entitlement to an initial compensable rating for posttraumatic headaches, claimed as migraine headaches, previously claimed as residuals of fire-related trauma, is denied. Entitlement to an initial compensable rating for bilateral hearing loss is denied. As of January 24, 2014, entitlement to a total disability rating based on individual unemployability (TDIU) is granted. REMANDED Entitlement to a TDIU prior to January 24, 2014 is remanded. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran’s posttraumatic headaches were not manifested by characteristic prostrating attacks that occur at a frequency equal to an average of at least one in two months. 2. For the entire appeal period, the Veteran had no worse than Level V hearing in the right ear and Level I hearing in the left ear. 3. Resolving all doubt in the Veteran’s favor, his service-connected disabilities render him unable to secure or follow a substantially gainful occupational consistent with his education and work history for the period after January 24, 2014. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for posttraumatic headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8100. 2. The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 3. As of January 24, 2014, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1955 to May 1957. By way of background, in January 2014, a Department of Veterans Affairs (VA) Regional Office (RO) denied the Veteran’s claim for service connection for headaches. Later, in a September 2014 rating decision, the RO granted service connection for bilateral hearing loss and denied service connection for headaches. The Veteran requested reconsideration of the denial of service connection for bilateral hearing loss as well as the noncompensable rating assigned to his headache disability, and the RO again denied the Veteran’s claim for service connection for headaches in a January 2015 rating decision. The Veteran timely appealed such decision, and the RO then granted service connection for posttraumatic headaches in a February 2018 rating decision. The Veteran submitted a timely notice of disagreement as to the rating for such disability, and in an April 2018 decision the RO confirmed the noncompensable ratings for the Veteran’s bilateral hearing loss and headaches. Following another timely appeal of such ratings, the RO issued a March 2020 statement of the case, after which the Veteran submitted a Decision Review Request: Board Appeal (Notice of Disagreement) (VA Form 10182) under the Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA). In such election, he withdrew his appeals in the legacy system and requested Direct Review of the evidence considered by the AOJ. Consequently, the Board’s review is limited to the evidence of record at the time of the issuance of the notification of the statement of the case on March 7, 2020, which becomes the AOJ rating decision when a Veteran opts-in to the modernized appeal system following the issuance of such procedural document. 38 C.F.R. § 3.2400 (c)(2). The Board notes that the Veteran has stated that his service-connected disabilities, to include his bilateral hearing loss and headaches, render him unemployable. Consequently, the Board has assumed jurisdiction of a claim of entitlement to a TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). In this regard, while the Veteran has claimed, in part, that symptoms of his service-connected bilateral leg and back disabilities have rendered him unemployable, such claim remains on appeal as part and parcel of such increased ratings claims for bilateral hearing loss and headaches. See Payne v. Wilkie, 31 Vet. App. 373 (2019); Harper v. Wilkie, 30 Vet. App. 356 (2018). Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found—a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. 1. Entitlement to an initial compensable rating for posttraumatic headaches, claimed as migraine headaches, previously claimed as residuals of fire-related trauma. The Veteran asserts that the severity of his posttraumatic headaches warrants a compensable rating. Such disability is rated as noncompensably disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8100, which provides that migraine-type headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are rated at 50 percent. Headaches with characteristic prostrating attacks occurring on an average once a month over last several months are rated at 30 percent. Headaches with characteristic prostrating attacks averaging one in two months over the last several months are rated at 10 percent. Headaches with less frequent attacks are rated at 0 percent. 38 C.F.R. § 4.124a. The rating criteria do not define “prostrating;” nor has the United States Court of Appeals for Veterans Claims (Court). Cf. Fenderson, supra (in which the Court quotes Diagnostic Code 8100 verbatim but does not specifically address the matter of what is a prostrating attack). By way of reference, the Board notes that, according to Webster’s New World Dictionary of American English, Third College Edition (1986), p.1080, “prostration” is defined as “utter physical exhaustion or helplessness.” A very similar definition is found in Dorland’s Illustrated Medical Dictionary 1367 (28th Ed. 1994), in which “prostration” is defined as “extreme exhaustion or powerlessness.” Also, the term “productive of severe economic adaptability” has not been clearly defined by regulations. The Court has, however, explained that “productive of” for purposes of Diagnostic Code 8100 can either mean producing, or capable of producing. See Pierce v. Principi, 18 Vet. App. 440, 445 (2004). Thus, migraine headaches need not actually produce severe economic inadaptability to warrant a 50 percent rating under Diagnostic Code 8100. Id. at 445–46. Similarly, “economic inadaptability” does not equate to unemployability, as such would undermine the purpose of regulations pertaining to a total disability rating based on individual unemployability. Id. at 446; see also 38 C.F.R. § 4.16. The Board notes, however, that the migraine headaches must be, at a minimum, capable of producing severe economic inadaptability in order to meet the 50 percent criteria. Here, the Board finds the criteria for a compensable rating for the Veteran's service-connected migraine headaches are not met at any time during the appeal period. Specifically, the evidence does not reflect characteristic prostrating attacks that occur at a frequency equal to an average of at least one in two months. In this regard, in February and April 2018, the Veteran was afforded VA examinations to evaluate the severity of his headache disability. The VA examiners both noted that the Veteran does not experience characteristic prostrating attacks of migraine or non-migraine pain. In a February 2018 VA examination assessing symptoms of the Veteran’s traumatic brain injury (TBI), it was noted that the Veteran’s headaches occurred on a daily basis but were only mild to moderate in severity. While other VA medical records during the course of the appeal referenced the Veteran’s headache diagnosis and pain, none included evidence that the Veteran experienced any prostrating attacks of headache pain. The Board recognizes that the Veteran is competent to describe his observable symptomatology. In this respect, the record shows he has consistently reported daily, mild to moderate headaches, with pulsating or throbbing head pain, pain localized to one side of the head, pain worse with physical activity, and sensitivity to light. However, in the instant case, although the Veteran believes that such symptoms warrant a compensable rating for such disability, the VA physicians examined the Veteran, acknowledged his reported symptoms as to his disability, and described the manifestations of such disability considering the rating criteria. In this case, the Board concurs with their finding that the medical evidence does not demonstrate symptoms of migraine headaches the severity of which equal “utter physical exhaustion” or “helplessness” to warrant a higher rating. After reviewing the totality of the evidence, therefore, and even in consideration of the Veteran’s subjective reports of migraine headache symptoms, the Board finds the criteria for a compensable rating have not been met at any time during the appeal period. 2. Entitlement to an initial compensable rating for bilateral hearing loss. Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from Level I, for essentially normal acuity, through Level XI, for profound deafness. 38 C.F.R. § 4.85(h), Table VI. In order to establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. These results are then charted on Table VI, or Table VIA in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule. 38 C.F.R. § 4.85. An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. VA treatment records from the entire period on appeal reflect the Veteran’s complaints of bilateral hearing loss and the receipt of hearing aids. However, the audiometric findings noted therein are consistent with those documented upon VA audiological examinations in January 2014 and April 2018, and do not include audiometric findings that show that a higher degree of impairment of hearing acuity exists at any point during the appeal period. In this regard, the January 2014 audiological examination report reveals that the pure tone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hz were 40, 35, 50, and 60, respectively, in the left ear, and 80, 85, 100, and 80, respectively, in the right ear. The pure tone threshold average in the left ear was 46 decibels and the average in the right ear was 86 decibels. No exceptional pattern of hearing loss was shown. Speech discrimination was 96 percent in the left ear and 76 percent in the right ear. It was noted that the Veteran reported being unable to communicate with others or hear the television if he does not wear his hearing aid. For the left ear, the average pure tone threshold of 46 decibels, along with a speech discrimination percentage of 96, warrants a designation of Roman Numeral I under Table VI. For the right ear, the average pure tone threshold of 86 decibels, along with a speech discrimination percentage of 76, warrants a designation of Roman Numeral V under Table VI. Applying the percentage ratings for hearing impairment found in Table VII, Level I hearing in one ear and Level V hearing in the other ear results in a noncompensable rating. The April 2018 audiological examination report included similar findings and the examiner noted that the Veteran had no increase in the severity of his bilateral hearing loss. In this regard, the April 2018 audiological examination report reveals that the pure tone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hz were 45, 40, 50, and 60, respectively, in the left ear, and 85, 85, 100, and 85, respectively, in the right ear. The pure tone threshold average in the left ear was 49 decibels and the average in the right ear was 89 decibels. No exceptional pattern of hearing loss was shown. Speech discrimination was 96 percent in the left ear and 76 percent in the right ear. It was again noted that the Veteran reported trouble communicating without a hearing aid. For the left ear, the average pure tone threshold of 46 decibels, along with a speech discrimination percentage of 96, warrants a designation of Roman Numeral I under Table VI. For the right ear, the average pure tone threshold of 86 decibels, along with a speech discrimination percentage of 76, warrants a designation of Roman Numeral V under Table VI. Applying the percentage ratings for hearing impairment found in Table VII, Level I hearing in one ear and Level V hearing in the other ear results in a noncompensable rating. The Board notes that also of record is a February 2015 VA audiological examination. At such time, the Veteran was noted to have pure tone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hz of 50, 45, 55, and 65, respectively, in the left ear, and 80, 90, 100, and 85, respectively, in the right ear. The pure tone threshold average in the left ear was 54 decibels and the average in the right ear was 90 decibels. The Board notes that such findings are consistent with the January 2014 and April 2018 audiograms. However, while such reflects audiometric testing of puretone thresholds at the required frequencies, it is not clear whether the type of speech discrimination test performed was the specific controlled speech discrimination test (Maryland CNC) required for VA rating purposes. 38 C.F.R. § 4.85 (a) (an examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test). Consequently, such audiological examination cannot support a compensable rating for the Veteran’s bilateral hearing loss. Consequently, the Board finds that audiometric testing conducted throughout the appeal period shows findings consistent with a noncompensable rating under DC 6100. To the extent that the Veteran contends that his bilateral hearing loss is more severe than currently evaluated, the Board observes that, while he is competent to report symptoms capable of lay observation, to include difficulty communicating without a hearing aid, he is not competent to report that his hearing acuity is of sufficient severity to warrant a compensable rating under VA’s tables for rating hearing loss disabilities because such an opinion requires medical expertise (training in evaluating hearing impairment), which he has not been shown to possess. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Despite the foregoing, the Board acknowledges the Veteran’s aforementioned reports of the difficulties associated with his bilateral hearing loss. However, even after considering such contentions as to the effects of the disability on his daily life, the Board finds that the criteria for a compensable rating are not met. See Lendenmann, supra. In this regard, in Doucette v. Shulkin, 28 Vet. App. 366 (2017), the United States Court of Appeals for Veterans Claims held that the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment as these are the effects that VA’s audiometric tests are designed to measure. The Veteran has not otherwise described functional effects that are considered exceptional, or that are not otherwise contemplated by the assigned evaluation. Id. Thus, his complete disability picture is compensated under the rating schedule. The Board has also considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran’s service-connected bilateral hearing loss; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disability is not warranted. Further, neither he nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, in regard to the initial rating claim adjudicated herein. Doucette, supra. Therefore, the Board finds that an initial compensable rating for bilateral hearing loss is not warranted. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim. Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal and his initial rating claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 3. Entitlement to a TDIU. The Veteran contends that he is unable to work due to his service-connected disabilities. Specifically, in March 2020, he stated that his age, level of education, and symptoms of his service-connected disabilities render him unable to secure or keep a job. In statements received in 2018, the Veteran specifically argued that both his headaches and his difficulty understanding what is communicated to him render him unable to work. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran 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, such disability shall be ratable as 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. 38 C.F.R. § 4.16 (a). Rating boards should submit to the Director of Compensation Service (Director) for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16 (a). See 38 C.F.R. § 4.16 (b). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. Unlike the regular disability 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. 447, 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) (level of education is a factor in deciding employability); Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran’s master’s degree in education and his part-time work as a tutor). 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. The ultimate question, however, 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, 363 (1993). “Substantially gainful employment” is considered “work that involves doing significant productive physical or mental duties and is done for pay or profit” even if the work “is done on a part-time basis or if a claimant is paid less, or is given less responsibility than when the same claimant worked before.” In other words, a “substantially gainful occupation” is “one that provides annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the veteran’s earned annual income” prior to when he was last employed. See Faust v. West, 13 Vet. App. 342, 356 (2000) (citing analogous Social Security Administration regulations). Marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16 (a). Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. By way of background, the Veteran is service-connected for chronic gastritis, which was rated as 40 percent disabling as of May 31, 2013; unspecified anxiety disorder, rated as 30 percent disabling as of January 24, 2018; TBI, rated as 10 percent disabling as of May 31, 2013; tinnitus, rated as 10 percent disabling as of January 24, 2014; residual scar associated with TBI, rated as noncompensable as of May 31, 2013; posttraumatic headaches rated as noncompensable as of May 31, 2013; and bilateral hearing loss, rated as noncompensable as of January 24, 2014. His combined disability rating was 60 percent as of May 31, 2013 and 70 percent as of January 24, 2014. While the Veteran did not meet the threshold schedular requirement for a TDIU for the entire appeal period stemming from his initial increased ratings claims for his bilateral hearing loss and posttraumatic headaches, a TDIU may nonetheless be assigned on an extra-schedular basis pursuant to C.F.R. § 4.16(b) for the period prior to January 24, 2014. Such will be addressed in the Remand portion below. In connection with his claim, the Veteran submitted VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, in February 2018. In such application, he indicated that his tinnitus, bilateral hearing loss, and posttraumatic headaches, as well as his non-service connected back, right and left leg disabilities, prevented him from securing or following any substantially gainful occupation. He indicated that he last worked 70 hours per week from January 10, 1980 to August 15, 1989 in his self-owned food store. He indicated that he left this job due to symptoms of his service-connected disabilities, with an emphasis on his bilateral hearing loss and tinnitus preventing him from working due to difficulty communicating. He further indicated that he had not sought employment since he became too disabled to work. He also did not indicate that he had education or training other than high school and military training, though the Board notes that evidence of record does indicate that he attended at least some higher education courses after his separation from military service. The Board notes that the evidence of record indicates that both the Veteran’s service-connected and non-service connected disorders have impacted his ability to work. In this regard, in January 2014, a VA audiologist noted that the Veteran reported having trouble working due to an inability to communicate with others when he is not wearing his hearing aid. Later, in February 2018, a VA neurologist evaluated the severity of the Veteran’s TBI symptoms and stated that such prevented him from managing his business; however, in a clarification e-mail, the examiner stated that the TBI-related headaches impacted his performance but did not completely prevent the Veteran from working. Rather, the neurologist found that the Veteran’s memory loss resulting from his TBI did prevent him from managing his businesses. In a VA mental status examination conducted in February 2018, the Veteran’s service-connected unspecified anxiety was also found to impact his ability to work. In this regard, the examiner noted that the Veteran’s mood instability limits his social interaction, causing him difficulty when communicating with the public or cooperating with coworkers. In an April 2018 VA examination report, the Veteran’s hearing loss was noted to result in limited occupational impairment. Specifically, it was noted that he would often have trouble carrying on a conversation over the phone or participating in a meeting with any type of environmental noise. The April 2018 VA examiner found that the Veteran’s bilateral hearing loss would allow him to working only in a quiet environment, such as an office with limited noise. The examiner also found that, while likely annoying, the Veteran’s tinnitus did not affect the Veteran’s ability to work. Later, in April 2018, another VA examiner evaluated the Veteran’s posttraumatic headache disability and noted that, as a result of his frequent headache episodes, the Veteran was only capable of performing sedentary duties at work and would need to take breaks to manage his headache episodes. In regards to the Veteran’s non-service connected conditions which he has claimed impact his ability to work, the Board recognizes that medical evidence of record supports the Veteran’s claim that his back and right and left leg disabilities impact his functional and occupational abilities. In a February 2018 VA medical examination evaluating the Veteran’s non-service connected arthritis, the examiner found that this condition impact the Veteran’s ability to work by limiting his ambulation and standing position. Furthermore, the February 2018 VA examiner found that the Veteran’s thoracolumbar spine disorder prevented him from lifting or carrying objects more than 10 or 15 pounds. Also in February 2018, a VA medical examiner considered the Veteran’s cervical spine condition and noted that such impacts his ability to work. In this regard, the Veteran is limited to a sedentary type of job with the restrictions on any cervical twisting and bending, or any heavy lifting, carrying, pushing, or pulling movements. Finally, such disorder was also noted to prevent prolonged standing or ambulation. Based on a review of the foregoing evidence and resolving all doubt in favor of the Veteran, the Board concludes that the Veteran is entitled to a TDIU as of January 24, 2014—the date he met the schedular requirements for such award. In this regard, the Board acknowledges that the Veteran has, in part, attributed his inability to work to his age and his non-service connected disabilities. However, probative medical evidence of record shows that symptoms of the Veteran’s service-connected disabilities alone—to include memory loss, difficulty communicating due to his bilateral hearing loss, and unspecified anxiety disorder—have rendered him unable to secure or follow a substantially gainful occupation consistent with his education and work history. Thus, the Board resolves all doubt in the Veteran’s favor and finds that his service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation consistent with his education and work history as of January 24, 2014. Therefore, a TDIU is warranted as of such date. REASONS FOR REMAND As explained above, the Veteran’s claim of entitlement to a TDIU is granted as of January 24, 2014. However, he contends he has been unable to secure and follow a substantially gainful occupation since the 1980s due to his service-connected disabilities. In this regard, while he does not meet the schedular threshold criteria for a TDIU prior to January 24, 2014, the evidence of record suggests he may have been unable to secure and follow a substantially gainful occupation due to his service-connected disabilities for the period on appeal prior to such date. Specifically, the VA neurologist evaluating the Veteran’s TBI symptoms indicated that his posttraumatic headaches and memory loss have impacted his ability to work for the duration of the pendency of the appeal. Under such circumstances, the Board finds that this matter should be referred to the Director of Compensation Service for extra-schedular consideration of a TDIU for the period prior to January 24, 2014, pursuant to 38 C.F.R. § 4.16(b). The matter is REMANDED for the following action: (Continued on the next page)   Refer the Veteran's claim of entitlement to a TDIU prior to January 24, 2014, to the Director of Compensation Service for extra-schedular consideration pursuant to 38 C.F.R. § 4.16(b). Z. SAHRAIE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Breckenridge, 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.