Citation Nr: 21032105 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 16-41 167 DATE: May 25, 2021 ORDER As of March 17, 2015, a total disability rating based upon individual unemployability due to service-connected disability (hereinafter, TDIU) is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDING OF FACT Resolving all doubt in the Veteran's favor, her service-connected disabilities, excluding her service-connected persistent depressive disorder, rendered her unable to secure and follow a substantially gainful consistent with her education and work history as of March 17, 2015. CONCLUSION OF LAW As of March 17, 2015, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1984 to April 1989. In a November 2018 Board of Veterans' Appeals (Board) decision, the Board raised the issue of entitlement to a TDIU as part-and-parcel with claims then before the Board. Then, the Board remanded the claim to a Department of Veterans Affairs (VA) Regional Office (RO) to allow the Veteran to submit the proper unemployability application and then to adjudicate the claim. The RO issued a supplemental statement of the case (SSOC) denying entitlement to a TDIU in July 2019. In a September 2019 decision, the Board again remanded the claim for entitlement to a TDIU. In a July 2020 rating decision, the RO denied entitlement to a TDIU, and the case now returns to the Board. TDIU Total disability ratings for compensation may be assigned pursuant to 38 C.F.R. § 4.16 (a) where the schedular rating is less than total, when the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, 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. 38 C.F.R. § 4.16 (a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system and/or disabilities resulting from common etiology or a single accident are considered as one disability, including, for example, disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; disabilities resulting from common etiology or a single accident; and, disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, and neuropsychiatric. Id. VA will grant a TDIU when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a veteran is unemployed or has difficulty obtaining employment is insufficient to support a grant of TDIU. See 38 C.F.R. § 4.16(b); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The evidence must show the veteran is incapable of performing the physical and mental acts required by employment by reason of his service-connected disabilities alone. alone prevent that veteran from securing or following a substantially gainful occupation. 38 C.F.R. § 4.16(b). Marginal employment shall not be considered substantially gainful employment for purposes of entitlement to TDIU. 38 C.F.R. § 4.16(a). 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. Id. Marginal employment may also be established, on a facts-found basis, when earned annual income exceeds the poverty threshold, including but not limited to employment in a protected environment such as a family business or sheltered workshop. Id. Consideration must be given in all claims to the nature of the employment and the reason for termination. Id. Entitlement to a TDIU. Importantly, the Veteran is already in receipt of a 100 percent rating for persistent depressive disorder and, as such, a TDIU based on that disability is barred. Rather, the evidence must show the Veteran's other service-connected disabilities meet the schedular criteria for consideration of a TDIU and that those other disabilities in fact prevent the Veteran from securing and maintaining gainful employment. In the instant case, the Veteran's service-connected disabilities other than the service-connected persistent depressive disorder are tinnitus, neck condition to include retrolisthesis C5 and C6 (hereinafter, neck disability), and migraine headaches, and the Veteran meets the schedular criteria for consideration of a TDIU based on the 10 percent, 30 percent, and 50 percent disability ratings assigned for such disabilities, respectively. Thus, the dispositive issue is whether those disabilities have precluded her from securing and following substantially gainful employment. The Veteran reports that she has not worked since November 2008 and last attempted unsuccessfully to obtain employment in 2013. See July 2019 Application for Increased Compensation Based on Unemployability. VA neurology and primary care notes from as early as October 2013 show that the Veteran complained of "ongoing headaches," which she described as "ice cream[-like]" headaches, and was monitored for the condition. A January 2014 VA tinnitus Disability Benefits Questionnaire (DBQ) shows recurrent, intermittent tinnitus. In a Social Security Administration (SSA) Disability application, which appears to have been filed in February 2014, the Veteran stated that the "physical or mental conditions" which limit her ability to work were PTSD and depression. The Veteran reported she became unable to function and/or work as of November 19, 2008. An October 2015 SSA Disability Determination Explanation shows that the Veteran was found to be not disabled. The claim was initially denied in May 2014. Since then, she stated that since her last report of medical conditions affecting her ability to work--filed in February 2014--there were "no changes" in her physical conditions. However, she noted a separate diagnosis of fibromyalgia and difficulty sleeping. A July 2015 Function report prepared by the Veteran shows that she reported her migraines impact her ability to work. At an October 2015 SSA residual functional capacity assessment, the Veteran reported numerous factors--all related to her psychiatric disorder--impacting her ability to work. She also stated that she is disabled by a number of disabilities, including headaches. Nonetheless, there were no other headache-, neck-, or tinnitus-related limitations, and the examiner suggested that the Veteran would be able to perform certain jobs, such as cashier, for which she had previous experience. VA neurology notes from May 2015 to April 2016 show that the Veteran had recurrent neck pain and stiffness. The record shows consistent reports of headaches, and the Veteran was prescribed Venlafaxine to address the problem. The Veteran reported in April 2016 that her headaches were improving and seemed to be associated with neck pain/holding the neck in the same position for prolonged periods. An August 2016 VA headaches examination shows headaches 2-3 times per week, "not as severe as they used to be." The Veteran described the pain as an "ice cream[-like]" headache. Symptoms included nausea, sensitivity to light, sensitivity to sound, and stiffness in the neck. Duration was less than one day and affected both sides of the head. The functional impact was noted as the Veteran was "unable to work when these headaches occur which interferes with her ability to succeed at any vocational goal." An April 2019 VA neck conditions examination report shows that the examiner found the impact of the neck condition was that the Veteran should avoid any occupation that requires repetitive movement of the neck. At a December 2019 VA headaches examination, the Veteran reported that she continues to have headaches 2-3 times per week. Each time, she must stop whatever activity she is doing and lay down for 2-3 hours. She does not know what the trigger is, but has not been seen for treatment in 3-5 years. Symptoms of/associated with the headaches include constant head pain, pain on both sides of the head, and sensitivity to light and sound. The examiner endorsed characteristic prostrating attacks of migraine/non-migraine headache pain occurring once per month. The examiner specified that the Veteran must miss 4-6 days of work per month secondary to the headaches. In a December 2019 VA hearing loss and tinnitus DBQ, the examiner stated that the Veteran's tinnitus "should not cause any major disruptions in daily living tasks," but that "[s]ome work environments may aggravate the tinnitus" or make the tinnitus more noticeable. Nonetheless, the Veteran could find a proper work environment to allow her to fully function. The examiner noted that tinnitus is known to be annoying and distracting at times, but it has not been found to prohibit the ability to function in most occupational settings. This would include interacting with coworkers/customers, using technology, or performing physical tasks such as standing, walking, lifting, pushing, pulling etc. These comments are made in regards to the Veteran's tinnitus alone, and do not address the difficulties posed by their other disabilities. Upon review, the Board finds the Veteran's service-connected disabilities, excluding persistent depressive disorder, have rendered her unable to secure and follow a substantially gainful occupation as of March 17, 2015, the date of the award of service connection for migraine headaches and a neck disability. In particular, the Veteran has complained of recurring headaches since no later than October 2013, and the December 2019 examiner indicated that her headaches completely prevented her from being able to perform any task for a number of hours after onset. Simply put, it is hard to imagine a job that the Veteran would be able to maintain despite her headaches. She has no control over the onset of the headaches, which occur 2-3 times per week, and each time the headaches begin, she must lay down for several hours. It is even more difficult to imagine that nearly any employer would be willing to take the Veteran on as an employee, despite her not having worked for over a decade and despite her requiring potentially multiple days off per week, unplanned, beginning immediately and continuing indefinitely. For those reasons, and with resolution of all doubt in the Veteran's favor, the Board finds the criteria for a TDIU have been met as of March 17, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. . M. M. Celli Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. KAYS HUKILL 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.