Citation Nr: 21029803 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 14-34 585A DATE: May 17, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran's service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.16(b) (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Army from July 1970 to July 1973. In November 2017, the Veteran testified before the undersigned at a Board of Veterans' Appeals (Board) videoconference hearing. A transcript of the hearing is of record. In April 2018, the Board remanded the appeal for further evidentiary development. TDIU The Veteran contends that he is unable to work primarily due to his service-connected headache disorder. In a July 2012 VA Form 21-8940, he specified that he became too disabled to work beginning in June 2012. On review, for the reasons discussed below, the Board agrees that a TDIU is warranted. The instant appeal dates from a May 2011 claim for increased disability compensation. Effective on May 23, 2011, the Veteran is in receipt of service connection for paralysis of the 7th cranial nerve (rated as 30 percent disabling); headaches as residuals of skull fracture and right epidural hematoma (30 percent); defective hearing of the right ear (10 percent); tinnitus (10 percent); and hepatitis C (noncompensable). His combined rating is 60 percent. As a result, he has not satisfied the schedular criteria for TDIU. See 38 C.F.R. § 4.16(a) (to qualify for TDIU, the evidence must show that a veteran is unable to secure and follow a substantially gainful occupation as a result of service-connected disability, and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent). Notwithstanding, it is VA policy that a TDIU will be awarded whenever a claimant is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability or disabilities. 38 C.F.R. § 4.16(b). When, as here, the Veteran does not meet the numerical requirements of 4.16(a), the Board may not award a TDIU in the first instance, but rather may only refer the case to the Director of Compensation Service (Director) for consideration of an extraschedular TDIU. 38 C.F.R. § 4.16(b); see also Cantrell v. Shulkin, 28 Vet. App. 382, 387 (2017). In this case, the Board referred the matter of entitlement to a TDIU on an extraschedular basis to the Director for consideration as part of its April 2018 remand. In March 2020, the Director issued a memorandum declining to recommend an award of TDIU. This finding is not binding on the Board. See Anderson v. Shinseki, 22 Vet. App. 423, 427-29 (2009) (discussing why initial determinations in extraschedular analysis by the regional office and determinations by the Director are not binding on the Board). The matter now returns to the Board for review, the relevant question being whether the Veteran's service-connected disabilities have rendered him unable to secure and follow a substantially gainful occupation. As noted above, the Veteran asserts that his headaches have rendered him unemployable since June 2012. In support of his claim, he has submitted his own lay statements (including testimony at his Board hearing) as well as numerous letters from friends, family members, and former co-workers which collectively describe a history of incapacitating headaches that rendered him incapable of performing work duties and regularly caused him to miss work. In addition, the Veteran has described the incapacitating effects of narcotic medications he requires to treat his headaches. The record also includes statements from former employers indicating that, beginning in mid-2012, the Veteran was repeatedly fired due to his inability to sustain full-time employment due to recurrent incapacitating attacks of headaches. The pertinent medical evidence of record includes multiple VA examination reports which generally reflect the examiners' conclusions that the Veteran is capable of at least light or sedentary employment. However, the Veteran has submitted opinions from private providers that weigh against these findings. For example, an October 2015 letter from his family practice physician noted that the Veteran, a longstanding patient, suffered from daily headaches which required him to be on narcotic pain medication which rendered him "unable to hold down [a] permanent job." Subsequent treatment records, to include records dating from 2020, reflect that the Veteran has continued to suffer from daily, "disabling" headaches that were not improving. In this case, the Board finds that the lay statements and private medical records discussed above are the most probative evidence in this matter, and tip the scales in favor of granting TDIU. Based on this evidence, it would be unreasonable to expect that the Veteran could perform his job duties as a maintenance man, or any other similar profession, while suffering daily prostrating attacks of headache pain. The Board finds it notable that multiple former employers informed VA that while the Veteran was a good worker, he was functionally unemployable due to the unpredictable nature of his headaches and his inability to work during such episodes. In short, the Board finds that the Veteran's service-connected headache disorder makes it very difficult for him to function, much less sustain substantially gainful employment. As such, entitlement to a TDIU is warranted on an extraschedular basis, pursuant to 38 C.F.R. § 4.16(b). The Board notes again that the record contains opinions from VA physicians indicating that the Veteran could successfully function in certain work environments. Notwithstanding, as the Veteran's representative has noted, these opinions do not address the positive evidence put forth by the Veteran. Moreover, the issue of entitlement to a TDIU is ultimately a legal, not medical, question, and the feasibility of part-time work does not preclude an award of TDIU. See 38 C.F.R. § 4.16(a) (noting that "[m]arginal employment shall not be considered gainful employment"). The Board will resolve all reasonable doubt in the Veteran's favor in light of his (clearly very serious) headache-related symptomatology and the extensive lay evidence documenting his inability to both secure and follow a substantially gainful occupation. The record fairly demonstrates unemployability, under the meaning of 38 C.F.R. § 4.16(b). Accordingly, the claim will be granted in full. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Minot, 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.