Citation Nr: 21028643
Decision Date: 05/11/21	Archive Date: 05/11/21

DOCKET NO. 13-15 643
DATE: May 11, 2021

ORDER

Entitlement to a total disability rating based on individual unemployability (TDIU) as a result of service-connected disabilities from April 23, 2012 is granted.

FINDING OF FACT

From April 23, 2012, the Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation consistent with his education and occupational experience.

CONCLUSION OF LAW

From April 23, 2012, the criteria for entitlement to a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from October 1972 to September 1975.

This matter came to the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision by a Veterans Affairs (VA) Regional Office (RO). The case was previously before the Board in June 2017 and August 2018 but was remanded for further development. Most recently, the Board remanded the issue in an October 2019 decision to provide the Veteran and his representative further opportunity to submit evidence in support of his claim. 

Entitlement to a TDIU.

The Veteran contends he is entitled to a TDIU. 

A TDIU 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 a single service-connected disability rated at 60 percent or more; or as a result of two or more service connected disabilities, provided at least one disability is rated at 40 percent or more, and there are additional service connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). 

As of April 23, 2012, the Veteran had a combined rating of 80 percent, including, in part, a 50 percent rating for post-concussion cephalalgia. As such, from April 23, 2012, the Veteran meets the schedular requirements of a TDIU.

The Board finds that the Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation consistent with his education and occupational experience.

The evidence of record indicates the Veteran has three years of college as well as a total of four years at a technical school. The Veteran's primary employment was as a truck driver, constituting his role in his last three jobs. The Veteran last worked in November 2009 with no subsequent employment. The evidence of record consistently shows the Veteran complaining of daily headaches involving prostrating attacks that can last from hours to days. (See January 2012 VA examination, June 2015 private examination, September 2017 VA examination, and October 2018 Disability Questionnaire). Such prostrating attacks prevent the Veteran from performing both physical and sedentary work, due to him having to stop work and retreat to a dark room during such attacks. In consideration of the above, and resolving reasonable doubt in the Veteran's favor, the Board finds a TDIU is warranted from April 23, 2012, which corresponds to the date of receipt of his increased rating claim.

 

 

M.W. Kreindler

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Lee Feldman, 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.