Citation Nr: 21028663 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 09-09 229 DATE: May 11, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) prior to March 14, 2016 is granted. FINDING OF FACT The Veteran's service connected disabilities prevent her from securing or following substantially gainful employment prior to March 14, 2016. CONCLUSION OF LAW The criteria for a total disability rating based on individual unemployability prior to March 14, 2016, have been met. 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1979 to June 1995, to include over 6 years of foreign service. For her meritorious service, she was awarded (among other decorations) the Army Commendation Medal and the Army Achievement Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in March 2008 by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared for a hearing before the Board in December 2012. A transcript of the hearing is of record. As the Veterans Law Judge who presided over that hearing is no longer at the Board, the Veteran was afforded an opportunity for another hearing before a different VLJ who would decide her case. In May 2017 correspondence, she declined. This matter was previously remanded by the Board in April 2013, December 2017, February 2020, and February 2021 for additional development. It is now before the Board for further appellate review. 1. Entitlement to TDIU prior to March 14, 2016 The Veteran asserts that she is entitled to a TDIU prior to March 14, 2016, on an extraschedular basis, due to her service-connected disabilities. Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestead v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training and previous work experience in arriving at a conclusion, but not to age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Substantially gainful employment must be reviewed in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Moore v. Derwinski, 1 Vet. App. 356 (1991), Timmerman v. Weinberger, 510 F.2d 439 (8th Cir. 1975). 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). But even if the Veteran does not meet these threshold minimum percentage rating requirements, he can still receive a TDIU, albeit instead on a special extra-schedular basis under the alternative provisions of 38C.F.R. §4.16(b), if it is shown he is indeed unemployable owing to his service-connected disabilities. In that circumstance, however, the Board is precluded from granting the TDIU in the first instance, having instead to refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension (C&P) Service for this initial consideration. See Barringer v. Peake, 22 Vet. App. 242 (2008). This does not, however, preclude the Board from determining whether this special consideration is warranted. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran is currently service connected for migraine headaches at 50 percent; lumbosacral strain at 20 percent; residuals of a right foot fracture at 10 percent; and radiculopathy of the lower right extremity as secondary to the lumbosacral strain at 10 percent, for a combined rating of 70 percent from March 2016. For the timeframe of April 2007 to March 2016, the Veteran had a combined rating 60 percent. Thus, the Veteran was eligible for entitlement to a schedular TDIU from March 2016. The Veteran asserts however, that she is entitled to a TDIU on an extraschedular basis on the grounds that her migraines have prevented her from working since August 2009. As the Board cannot grant an extraschedular TDIU in the first instance, this matter was previously remanded in February 2021 for consideration from the Director of Compensation Service. The Director of Compensation Service has since returned their decision and the Board can proceed with the adjudication of the appeal. The Veteran appeared for a VA examination in November 2007. During the examination, the Veteran reported that she last worked in 2000 doing internal finishing for construction. The Veteran estimated that if she had been working at the time of the examination, she would miss about one to three days a week due to headaches. She also reported that she could not drive when she has a headache. The Veteran submitted a statement in support of her claim in April 2008. In her statement, she reported that she has been sent home from work due to her migraines. She also stated that she had headaches usually once a week. Additionally, she stated that her right foot hurts when she tries to do any prolonged standing or walking. The Veteran and her spouse appeared for a hearing before the Board in December 2012. During the hearing, the Veteran testified that she has headaches two to three times a week. Her spouse confirmed that she has two or three headaches a week and stated that at least twice a month, her headache becomes so severe that she has to lay in the bedroom with no lights on and the blinds closed. He stated that her headaches become so severe that he does pressure compressions on her head to try and relieve some of the pain. The Veteran's spouse reported that there have been times when she has been in bed for 3 days or would have to go to the emergency room due to her migraines. The Veteran reported symptoms of split vision, nausea, and numbness in the left side of her body. Additionally, the Veteran stated that she last worked in August 2009 and stopped working because of her headaches. She also stated that she has not been looking for work because she knows her headaches will interfere with her employment. VA treatment records indicate that the Veteran was last employed from 2007 to 2009. The Veteran reported that she last worked from August 2007 to August 2009 as an assistant CQM on her formal application for a TDIU. Also, on her formal application, the Veteran stated that her highest level of education completed was one year in college and that she has not had any educational training before or after she became too disabled to work. The Veteran reported that migraine headaches prevented her from being a reliable employee. She stated that she missed workdays and had become a detriment to her employer. She reported that she left her job due to her disability and has not attempted to obtain employment since. The Veteran appeared for a VA examination for her migraines and lumbar spine disability in March 2016. The VA examiner determined that due to the Veteran's back disability, she should find an occupation that does not require more than 20 minutes of time standing. The Veteran also reported that her headache symptoms have been the same since 1984 when they began. The examiner determined that the Veteran's migraines impacts her ability to work. The examiner reported that when migraines are present, she has light sensitivity, numbness of the face and left arm, nausea, and constant pain which requires her to lie down. The issue of entitlement to a TDIU prior to March 14, 2016 was remanded for review from the Director of Compensation Service in February 2021. In March 2021, the Director of Compensation Service submitted a decision. The Director determined that the evidence failed to support the contention that any of the Veteran's service connected disabilities (or a combination of the effects of those disabilities) prevented gainful employment prior to March 14, 2016. The Director stated that the evidence of record did not show that the Veteran has attempted to obtain sedentary work. The Director also stated that the American workplace has had a dramatic shift in labor force over the last several decades and jobs have become less strenuous. The Director reported that there are many jobs that require light activity and technological advances have broadened opportunities for disabled employees. The Director concluded by stating that this decision evaluates whether the Veteran is incapable of performing the physical and mental acts required by employment due to service connected disabilities, not whether the Veteran can find employment. For the following reasons, the Board disagrees with the decision made by the Director of Compensation Service. First, the Veteran has stated multiple times throughout the record, prior to March 14, 2016, that she experiences two to three headaches a week. Medical treatment records show that she has been receiving treatment and VA examinations document the frequency and severity of her headaches. From the year 2000 to 2007, the Veteran was unemployed. She stated that if she had been working, her headaches would cause her to miss one to three days a week and she reported that she could not drive when she has a headache. The Veteran then worked from 2007 to 2009 but was unable to stay employed due to her service-connected disabilities. More specifically, she was sent home from work often due to her headache symptoms and stated that she became a detriment to her employer. Additionally, the Veteran's symptoms are so frequent and severe that at least twice a month she experiences a headache so debilitating that she has to lay in a room with no light or sound. While the Board acknowledges that the Veteran has not attempted to obtain sedentary work as noted by the Director of Compensation Service, the Board finds that such employment would not change the outcome of the Veteran's employment. In this regard, the Veteran is currently unemployed and still receives migraines two to three times a week with debilitating migraines occurring at least twice a month. Thus, the Board finds that even with sedentary work, the Veteran's migraines will still interfere with her performance and reliability as she could miss anywhere between one to three days a week due to her symptoms. As such, the Board finds that entitlement to a TDIU is warranted prior to March 14, 2016. The Agency of Original Jurisdiction will set the effective date for the grant of entitlement to TDIU as this preserves the Veteran's right to appeal this downstream issue. J. O'CONNELL Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. K. Hall, 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.