Citation Nr: 21041218 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 16-57 804 DATE: July 8, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected migraine headaches on an extraschedular basis from October 12, 2004 to January 21, 2013, inclusive, is granted. FINDINGS OF FACT 1. The Veteran did not meet the threshold percentage requirements for entitlement to a TDIU rating in accordance with 38 C.F.R. § 4.16(a) prior to January 22, 2013. 2. The Veteran's service-connected migraine headaches have been sufficiently incapacitating as to prevent him from obtaining or maintaining substantially gainful employment from October 12, 2004 to January 21, 2013, inclusive. CONCLUSION OF LAW The criteria for entitlement to a TDIU rating on an extraschedular basis are satisfied from October 12, 2004 to January 21, 2013, inclusive. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.400, 4.3, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1973 to December 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision. The Veteran is in receipt of a TDIU rating, effective January 22, 2013. See August 2017 Rating Decision. The Board remanded the issue of entitlement to an extraschedular TDIU rating in December 2018 and May 2020 for further development. Most recently, the Board remanded the issue of an extraschedular TDIU rating to refer it to the Director of the Compensation and Pension Service (Director) for extraschedular consideration under 38 C.F.R.§4.16 (a). The Board finds that there was substantial compliance with the Board's May 2020 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Entitlement to a TDIU rating due to service-connected migraine headaches on an extraschedular basis from October 12, 2004 to January 21, 2013, inclusive, is granted. During the relevant time period, the Veteran reported that his service-connected migraine headaches rendered him unemployable. For the reasons discussed below, the competent evidence of record demonstrates that the Veteran's service-connected migraine headaches produced unemployability from October 12, 2004 to January 21, 2013, inclusive. Entitlement to TDIU rating requires the presence of impairment so severe that it is impossible for the average person to secure and follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching a determination, 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 (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 the impairment caused by nonservice- connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Certain percentage requirements must be satisfied in order to qualify for schedular consideration of entitlement to a TDIU rating. Specifically, if unemployability is the result of only one service-connected disability, this disability must be ratable at 60 percent or more. See 38 C.F.R. § 4.16(a). If it is the result of two or more service-connected disabilities, at least one must be ratable at 40 percent or more, with the others sufficient to bring the combined rating to 70 percent or more. Id. Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system such as orthopedic disabilities, will be considered as one disability for TDIU purposes. Id. The Veteran first met the schedular requirements for a TDIU rating on January 22, 2013. See 38 C.F.R. § 4.16(a). The Veteran was assigned a TDIU rating due to his service-connected migraine headaches, posttraumatic stress disorder (PTSD) and major depressive disorder (MDD), effective January 22, 2013, in an August 2017 rating decision. Prior to January 22, 2013, the criteria for schedular consideration of a TDIU rating were not satisfied. In particular, the Veteran was service connected only for migraine headaches, rated as 50 percent disabling, from October 12, 2004 to January 21, 2013. The Veteran maintains that his migraine headaches alone rendered him incapable of performing the physical and mental acts required by employment prior to January 22, 2013. The Veteran may be entitled to a TDIU rating if it is established that he was unable to secure or follow substantially gainful employment as a result of the effects of his service-connected migraine headaches. 38 C.F.R. § 4.16(b). Therefore, the Board must determine whether the Veteran's service-connected migraine headaches precluded him from engaging in substantially gainful employment, or work that was more than marginal, which permitted the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of his service-connected migraine headaches was incapable of performing the physical and mental acts required by employment from October 12, 2004 to January 21, 2013, inclusive, not whether the Veteran could find employment. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). An inability to work due to advancing age may not be considered. 38 C.F.R. §§ 3.341(a), 4.19. In making its determination, VA considers such factors as the extent of the service-connected disability, and employment and educational background. 38 C.F.R. §§ 3.340, 3.341, 4.16(b), 4.19. In Ray v. Wilkie, the Court held that the phrase "unable to secure and follow a substantially gainful occupation" in section 4.16(b) has two components: one economic and one noneconomic. Id. at 73. The economic component "simply means an occupation earning more than marginal income (outside of a protected environment) as determined by the United States Department of Commerce as the poverty threshold for one person." 31 Vet. App. 58, 72-73 (2019). As for the "noneconomic component," the Court held that this refers to the individual claimant's "ability to secure or follow" an occupation earning more than marginal income. Id. (emphasis in original). In determining whether a veteran can secure and follow a substantially gainful occupation, the Court stated that attention must be given to several relevant factors: (1) the veteran's occupational history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g. sedentary, light, medium, heavy, or very heavy) 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. Id. The Court noted that these potentially relevant factors were not a "checklist that must be completely run through in every case," and that any factor need only be discussed if the evidence raises it as an issue. Id. Regarding the physical limitations factor, the Court stated that relevant considerations include, but are not limited to, the veteran's limitations with respect to lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations. Id. Concerning the mental ability factor, the Court stated that relevant considerations include, but are not limited to, the veteran's limitations with respect to memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Id. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In the present case, the issue of a TDIU rating on an extraschedular basis was forwarded to the Director of the Compensation and Pension Service for consideration. 38 C.F.R. § 4.16(b). In an October 2020 Memorandum, the Director determined there is no evidence of the Veteran being unable to perform sedentary employment due to his service-connected migraine headaches prior to January 22, 2013. The memorandum indicates that the Veteran completed one year of college coursework, did not attempt to obtain sedentary work after 2001, and that the objective medical evidence of record demonstrates that migraine headaches did not have a significant impact on his employment. However, upon review, the Board concludes that the preponderance of the evidence weighs against the Director's conclusion, and an extraschedular TDIU rating is granted. The Director's extraschedular decision is one of fact, and is reviewable by the Board on a de novo basis; it may serve to inform the Board's review, but it is not evidence. Kuppamala v. McDonald, 27 Vet. App. 447, 456-58 (2015); see Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009) ("[A]lthough the Board is precluded from initially assigning an extraschedular rating, there is no restriction on the Board's ability to review the denial of an extraschedular rating on appeal."). In Kuppamala, the Court stated that the Board has the requisite experience to assign extraschedular ratings, as it considers the average impairment in earning capacity in every decision involving the rating schedule, and in many instances, such as when rating a disability by analogy or conducting an analysis of a psychiatric disability under certain diagnostic codes, the Board goes beyond mere mechanical application of the rating schedule. Kuppamala, 27 Vet. App. at 457. The Board may assign an extraschedular rating when appropriate, and is only precluded from assigning an extraschedular rating "in the first instance." Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996). With respect to the term "in the first instance," the Court has clarified that the Board may assign extraschedular ratings when reviewing either a grant or a denial of an extraschedular rating by the Director. Kuppamala, 27 Vet. App. at 456. Reviewing the Director's decision de novo, the Board finds that an extraschedular evaluation is warranted from October 12, 2004 to January 21, 2013, inclusive. In so finding, the Board observes that the Director of Compensation Service did not meaningfully cite to the Veteran's VA treatment records, VA examination reports, private vocational assessment, did not discuss lay statements from the Veteran, and failed to provide a thorough explanation in support of the conclusions reached. Of note, the memorandum did not discuss any functional impairment caused by the Veteran's migraine headaches. The evidence indicates that the Veteran completed high school and some college coursework. In terms of employment, the evidence demonstrates that the Veteran was last employed in September 2001 as a welder. See November 2016 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. He advised of employment as a carpenter and welder prior to 2001. While the Veteran indicated that he performed odd jobs after 2001, his earnings records from 2002 to 2013 demonstrate that he did not have any taxed Social Security earnings or taxed Medicare earnings. The Veteran has not attempted to obtain employment since he became too disabled to work and did not obtain any other education or training before or since he became too disabled to work. See November 2016 VA Form 21-8940. Therefore, the Board finds that the Veteran was not employed during the relevant time period or his employment was no more than marginal in nature. Regarding the Veteran's ability to engage in substantially gainful employment, his VA treatment records demonstrate his consistent complaints of chronic headaches. In particular, the Veteran's VA treatment records from 2012 indicate that he has two headaches per week. When his headaches occur, he turns off the light and lies down. This has occurred for several years. The Veteran's medication is effective approximately 50 percent of the time. The examination reports during the relevant time period also describe the impact of the Veteran's migraine headaches on his ability to engage in substantially gainful employment. Of note, an April 2007 VA General Medical Examination states that he has twenty-five to thirty-five minor headaches per year. He generally treats his minor headaches with pain pills. He also experiences daily, low-level, pressure-type headaches that occur in the morning or mid-day and then subside. Lastly, the examination report states that the Veteran has two to three severe headaches per month, which are stress induced and can occur at any time of the day. The development of the Veteran's severe headaches occur over hours. The April 2007 examination report states that the Veteran experiences confusion during his headaches and has difficulty with arithmetic. He fumbles and drops objects, sometimes has problems standing and he also has difficulty maintaining concentration. When the Veteran has a headache of any level of severity, any type of movement or standing makes his headache worse, so he usually lies down. He turns off his phone and cancels appointments. He sometimes uses ice packs and they are usually helpful, but he does not like the coldness. The April 2007 examination report provides that the Veteran's headache pain is sharp, like a nail in his forehead, and steady, but with some pulsation. Noise and light are troublesome for the Veteran. His headaches usually last between two and eight hours but can occasionally last twelve hours. The examination report states that the Veteran's migraine headaches are of moderate significance. The examiner concluded that it is less likely than not that the Veteran is precluded from obtaining or maintaining substantially gainful employment or to perform active daily living activities due to his migraine headaches. A July 2010 VA Examination states that the Veteran's severe headaches have increased in frequency and severity, but his headaches have not changed substantially in the past two years. His headaches occur spontaneously and are aggravated by bright lights, noise, head movement, and deep thinking. His headaches are alleviated by lying down in a cool, dark quiet area with a cool rag over his head. He may lay in various positions, but he usually remains in a single position for as long as possible, before re-positioning and prefers that his environment to be totally quiet. The July 2010 examination states that the Veteran's headaches last for two to twelve hours. The headaches that last for two hours make up approximately one third of the headaches that the Veteran experiences. He has headaches that last for six hours, which make up one third of his headaches. The Veteran's headaches that occur for twelve hours comprise the remaining one third of his headaches. When the Veteran experiences a headache, he is totally incapacitated as he must lie in a dark, cool area. His headaches are aggravated by any movement of his body or head. The examination report states that the Veteran has a diagnosis of migraine headaches, moderately severe. A January 31, 2013 VA Headaches (including Migraine Headaches) Disability Benefits Questionnaire states that the Veteran has severe headaches per month that he rates as a ten (out of ten) the pain scale, and last about five to ten hours. The Veteran reported headaches of moderate severity that he rates as a seven or eight on the pain scale and last for four to five hours. He has low level headaches that occur about five to six times per month, which last for twelve to twenty-four hours. The Veteran takes medication for his headaches. The January 2013 examination report states that the Veteran experiences nausea, sensitivity to light and sound, changes in vision, and sensory changes associated with his headaches. He has characteristic prostrating attacks of migraine headache pain that occur more frequently than once per month. The examination report provides that the Veteran's headache condition does not impact his ability to work. The Board finds that the April 2007 and January 2013 opinions concerning the Veteran's employability are inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The opinions do not provide sufficient rationale in concluding that the severity of the Veteran's migraine headaches do not render him unable to secure gainful employment. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). "[A] medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two." Of note, the examiners did not explain how the Veteran would be able to engage in substantially gainful employment when his migraine headaches produced the physical and mental impairments described in the examination reports. The Veteran's claims folder also contains an April 2016 private vocational assessment. The assessment states that the Veteran is unable to maintain substantially gainful employment on a regular basis even at the sedentary level of work due to his migraine headaches. The Veteran completed high school. He completed some college coursework in welding but did not obtain a degree. His employment history includes jobs in the construction trades and welding. His previous occupations consist of physically demanding tasks, which do not provide a transferable skill base to lighter alternative occupations. The April 2016 private assessment states that substantially gainful sedentary work in a competitive market requires the ability to sit for at least six hours and stand and/or walk up to possibly two hours in an eight-hour workday, five days per week. An employee must be capable of maintaining the expected pace and production required by an employer and to do so with minimal absences or breaks from work. The employee must also be able to complete tasks fully while maintaining appropriate relationships with co-workers, supervisors, or possibly customers depending on the occupation. The April 2016 private assessment references the Veteran's April 2007 and July 2010 examination reports and VA treatment records that describe the severity, frequency, and duration of his migraine headaches and their functional impact. The assessment provides that the negative vocational impact products by the Veteran's migraine headaches would include disturbances in concentration and completion of tasks, frequent unscheduled absences, and unacceptable levels of prolonged absenteeism from employment. The Veteran's migraine headaches are more likely to prevent him from attending work on a regular basis or cause additional necessary beaks outside of what is usual, customary, and accepted by an employer. The Veteran's headaches would likely result in three to five sick days per month, which is more than what an employer would tolerate. Moreover, the Veteran has a limited, unskilled work history without any transferable work skills. At best, the Veteran would be able to tolerate some marginal or casual employment, including employment in a protected work environment. The Veteran's lay statements detail the impact of his service-connected migraine headaches on his employability during the relevant time period. During the February 2010 hearing that addressed the issue of entitlement to service connection for headaches, the Veteran advised that when he has a headache he must lie down and turn of the lights and any movement worsens his pain. The Veteran stated that his headaches essentially render him confined to his bed. At times, his headaches last all day and force him to attempt to sleep as a result. The above evidence demonstrates that the Veteran's service-connected migraine headaches significantly impacted his ability to grasp and continue holding objects, sit, stand, and move generally during headaches and caused auditory and visual limitations. His migraine headaches also caused significant interference with his ability to concentrate and demonstrate reliability and productivity at a workplace. Thus, the Board finds that an extraschedular TDIU rating from October 12, 2004 to January 21, 2013, inclusive, is warranted. Because the preponderance of the evidence is in favor of the award of an extraschedular rating, the benefit of the doubt doctrine is not applicable in the instant appeal and entitlement to an extraschedular TDIU rating from October 12, 2004 to January 21, 2013, inclusive, is granted. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 55. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mussey, Sean 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.