Citation Nr: 21030124 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 15-30 606 DATE: May 17, 2021 ORDER Entitlement to a total disability rating based on unemployability (TDIU) on an extraschedular basis prior to July 11, 2014 is granted. FINDING OF FACT From December 20, 2011 to July 11, 2014, the evidence of record demonstrates that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU from December 20, 2011, to July 11, 2014, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from April 1969 to January 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas that denied entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU). Thereafter, in a February 2018 rating decision, the RO granted entitlement to TDIU, effective from July 11, 2014. The Veteran seeks an earlier effective date. The Veteran testified before the undersigned Veterans Law Judge during a May 2018 videoconference hearing. A transcript of that hearing is associated with the claims file. This matter was previously before the Board in August 2018, when it was remanded for further development. 1. Entitlement to a total disability rating based on unemployability (TDIU), to include on an extraschedular basis prior to July 11, 2014 A TDIU may be granted where a Veteran's service-connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2019). Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The central inquiry is, "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extraschedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). Marginal employment shall not be considered as constituting substantially gainful employment. 38 C.F.R. § 4.16(a). VA policy is to grant TDIU, regardless of the percentages, when service-connected disability actually renders a veteran unemployable. 38 C.F.R. § 4.16(b). Where there is evidence that a veteran is unemployable by reason of service-connected disability, but does not meet the percentage requirements, the Board is required to remand the claim, so that it can be referred to VA's Director of Compensation Service for adjudication in accordance with 38 C.F.R. § 4.16(b). Once a referral for an extraschedular TDIU rating under § 4.16(b) is made by the Board, the Director of Compensation Service then determines whether an extraschedular TDIU evaluation under § 4.16(b) is warranted. At that juncture, only then does the Board have jurisdiction to decide the TDIU claim on the merits when it returns. Pursuant to 38 C.F.R. § 4.16(a), marginal employment or the ability to work sporadically shall not be considered substantially gainful employment. 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. 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. In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court of Appeals for Veterans Claims, held that "substantially gainful employment" has both an economic and non-economic component. 38 C.F.R. § 4.16(b). The economic component includes the Veteran's ability to earn more than a marginal income as evidenced by federal poverty thresholds. The non-economic component involves assessing the Veteran's actual ability to work. Factors to be discussed include (1) the Veteran's history, education, skill, and training; (2) whether the Veteran has the physical ability to perform the type of activities required by the occupation at issue; and (3) whether the Veteran has the mental ability to perform the activities required by the occupation at issue. The Veteran is service connected for migraine headaches at 50 percent disabling from December 20, 2011, as well as hemorrhoids, rated as noncompensably disabling. The Veteran's combined rating for his service-connected disabilities was 50 percent prior to July 11, 2014. The Veteran did not have one disability ratable as 60 percent or more, and did not have a combined rating of 70 percent or more, prior to July 11, 2014. See 38 C.F.R. § 4.16(a). Thus, the Veteran does not meet the percentage requirements for schedular consideration for TDIU during the entire appeal period. However, pursuant to the August 2018 Board remand, the Veteran's claim was referred to the Director of Compensation Service for an extraschedular evaluation under 38 C.F.R. § 4.16(b). The Veteran reported in the September 2012 VA Form 21-8940 that he was working part time up to 6 hours a week. During the May 2018 hearing before the undersigned, the Veteran reported he last worked in February 2013, when he resigned due to the increasing severity of his headaches. The Veteran was afforded a VA examination in April 2012. He reported his headaches worsened 6 months prior to the examination, when the headache frequency increased to twice a week from twice a month. He also reported that though his medication regimen changed, his headaches were unchanged in severity or frequency. The headaches were noted to be productive of constant head pain, localized on one side of the head, worsening with physical activity. Non headache symptoms included nausea, vomiting, sensitivity to light and sound, and changes to vision. Typical headache duration was less than a day, though characteristic prostrating attacks of migraine headache pain were noted to occur more frequently than once a month. Pertinently, the examiner indicated that the Veteran was working full time as a social worker until the prior Fall, when he started working part time due to missing so much work as a result of migraine headaches. It was noted that the Veteran was unable to work for two days per week due to headaches. The Veteran was also afforded a VA examination in February 2013. The Veteran reported headache pain on both sides of the head. Non-headache symptoms were noted to include nausea, sensitivity to light and sound and changes in vision. The duration of typical head pain was noted to be one to two days. Characteristic prostrating attacks had a frequency of less than once every two months. He was also noted to have very frequent prostrating and prolonged attacks of migraine headache pain. In terms of functional impact, the examiner assessed that the Veteran was experiencing prostrating migraine flares about once every seven to ten days for 24 to 36 hours in duration. The examiner indicated the Veteran is only able to attend to his basic activities of daily living during those times, which are unpredictable in terms of onset and provocation. It was further reported the Veteran had lost jobs and experienced employment issues because of his abrupt severe impaired function during his near-weekly flares lasting 24 hours. The Veteran provided statements from his previous employers noting his limited ability to work even part time. To wit, of record is a letter dated in December 2013 from his previous manager. It was noted that the Veteran formally resigned in June 2013, after informing that his migraines were preventing him from working in February 2013. It was also noted that the Veteran worked several on call shifts per month starting in May of 2012, which became half shifts later that year. The Director of Compensation Service submitted a September 2020 advisory opinion for extraschedular consideration of TDIU for the period prior to July 11, 2014. It was noted that the Veteran's Social Security Administration (SSA) Records were not available for review, and request for further development, including to obtain said records was made. After SSA records were obtained, an addendum opinion was issued in October 2020. It was noted that the Veteran has been in receipt of SSA benefits based on his age, and not disability, since December 2012. Furthermore, it was noted that the Veteran last worked in June 2013 as a Social Worker at a rate of $23.66 per hour. The Director indicated that there was still some outstanding employment information which was needed. Finally, the Director issued a final opinion in December 2020. At that time, the Veteran's last full-time employment was acknowledged to be in December 2011. Also noted was the Veteran's education, including college and a Master's degree in social work. The Director noted that the medical evidence shows the Veteran has headaches about twice a week and takes medication to help control the condition. Additionally, it was noted that there are symptoms of sensitivity to light and sound and changes of vision at times. Pertinently, the Director opined that although there are limitations due to the Veteran's headache condition, the preponderance of the evidence does not show that the service-connected condition prohibits the Veteran from obtaining or maintaining gainful employment prior to July 11, 2014. Regarding the economic component of TDIU, the Board notes that the Veteran last worked full time in December 2011 as a social worker. The evidence indicates, however, that though he made in excess of $23.00 per hour after that date, he was unable to maintain even part time employment. To wit, the Board finds persuasive the contemporaneous medical evidence of record, as well as the statement from his employer at the time. Specifically, the February 2013 VA examiner noted that the Veteran had abrupt, severe impaired function as a result of his migraine headaches, causing employment issues. Likewise, the 2012 examiner noted that the Veteran had at least two days per week of missed work due to headaches, and could not have full time employment. The Veteran's manager indicated that even the Veteran's part time, on call shifts had to be changed to half shifts during this period, leading up to a formal resignation. The Board notes that the Veteran has been consistent in his reporting of disability symptoms, and agrees that the unpredictability of migraine attacks, combined with their frequency and severity, have produced significant incapacitation. The Board will resolve reasonable doubt in the Veteran's favor and award entitlement to a TDIU for the period prior to July 11, 2014, specifically beginning December 20, 2011, the date his claim for increased compensation for his migraine disability was received which also coincides with the last month and year the Veteran worked full time. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Based on the evidence presented in this case, the Board finds that prior to July 11, 2014 the evidence supports a finding that the functional impairment associated with the Veteran's migraine disability is of such nature and severity as to preclude substantially gainful employment. There is no evidence that the Veteran possesses the training or experience to obtain employment where severe, frequent, unpredictable and incapacitating migraine headaches may be feasibly accommodated. The Board has also considered the fact that the Veteran is in receipt of the highest possible schedular rating for his migraine headaches under 38 C.F.R. § 4.124a, DC 8100. A 50 percent disability evaluation under DC 8100 is intended to compensate Veterans for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. However, the Board finds that even though severe economic inadaptability is contemplated by the rating criteria, it does not fully encompass the Veteran's exceptional disability picture, as corroborated both by VA medical providers as well as his own employer. Therefore, resolving reasonable doubt in the favor of the Veteran, the Board finds that the evidence of record supports entitlement to an award of TDIU. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Comninos, Georgio 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.