Citation Nr: 21042323 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 92-07 293 DATE: July 12, 2021 ORDER A total rating based on individual unemployability due to service-connected disability (TDIU), from March 26, 1991, to April 12, 1998, is granted on an extraschedular basis. FINDING OF FACT From March 26, 1991, to April 12, 1998, the Veteran was unable to secure or follow a substantially gainful occupation as a result of service-connected disability. CONCLUSION OF LAW The criteria for a TDIU on an extraschedular basis from March 26, 1991, to April 12, 1998, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from March 1961 to August 1964. He died in January 2021. The appellant is the Veteran's surviving spouse, who was substituted as the claimant for the purposes of processing the Veteran's claim to completion. See 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010(a). This matter originally came before the Board of Veterans' Appeals (Board) from a July 1997 decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has an extensive procedural history, including several remands from the United States Court of Appeals for Veterans Claims (Court), which has been detailed in prior Board decisions and remands. In April 2016, the Board denied reopening a previously denied claim of service connection for Meniere's disease and remanded the issue of a TDIU to obtain a decision from the Director of Compensation Service for consideration on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). Subsequently, in a February 2017 rating decision, the RO granted service connection for Meniere's disease as related and secondary to the service-connected disability of sinusitis with headaches, rated 100 percent effective November 10, 2016. In October 2017, the Board denied an effective date earlier than April 13, 1998, for the grant of a TDIU. The Veteran appealed the Board's October 2017 decision to the Court. In a February 2019 Memorandum Decision, the Court set aside the October 2017 decision and remanded the case to the Board. The Board remanded the appeal to the agency of original jurisdiction (AOJ) in November 2019. Legal Criteria A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 4.16(a). Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). It is established VA policy that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). The Board is required to obtain the Director's decision before it may award extraschedular TDIU. Wages v. McDonald, 27 Vet. App. 233, 236 (2015). In determining whether an individual is unemployable by reason of service-connected disabilities, consideration must be given to the type of employment for which the veteran would be qualified, including consideration of education and occupational experience. Neither age nor intercurrent disability may be used as a basis for assignment of a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Reasonable doubt regarding any point is resolved in favor of the claimant. 38 U.S.C. § 5107. Factual Background A. Prior to the October 2017 Board Decision In its October 2017 decision, the Board noted that the RO granted service connection for sinusitis with headaches in the July 30, 1997, rating decision, effective from March 26, 1991, and processed the TDIU claim in connection with an appeal of the initial rating assigned. Thus, the appeal period for the TDIU issue now before the Board is from March 26, 1991. From March 26, 1991, to November 11, 1997, the Veteran was service-connected for a single disability, sinusitis with headaches, rated 30 percent. From November 12, 1997, to April 12, 1998, in addition to sinusitis, service connection became in effect for arteriosclerotic heart disease, rated 10 percent, and chronic bronchitis, erectile dysfunction, and nicotine addiction, each rated noncompensable (0 percent); his combined rating for compensation during that period was 40 percent. The Board also previously noted that the Veteran's original claims file appears to have been lost in transit during a prior appeal to the Board in the 1990s, and that the AOJ was unable to recreate all of the information previously in the original claims file. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991) (establishing that where records pertinent to an appellant's claim have been destroyed or lost, the Board has a heightened duty to explain its findings and conclusions and to consider the benefit of the doubt). The Board further noted that there was previously some question as to whether the Veteran's headaches were due to sinusitis or were a separate disability (migraines), which had been extensively litigated, and that the Board previously found that there was not sufficient evidence of a separate disability, which was affirmed by the Court. Thus, for purposes of the decision, the Board assumedand assumes herethat all of the headache symptomatology is attributable to the sinusitis. See Mittleider v. West, 11 Vet. App. 181 (1998). As reflected in his TDIU application and records from the Social Security Administration, the Veteran had a high school education and did not attend college or technical school. He had work experience as a machine operator, truck driver, and food preparer. The Veteran first stopped working as a truck driver in 1985 due to a significant workplace back injury. As noted in the October 2017 Board decision, several pieces of evidence reflect symptomsor at least reports of symptoms by the Veteranof significant headache and sinusitis symptomatology, in terms of severity, frequency, and duration, including relatively frequent episodes of incapacitation and dizziness, resulting in significant functional impairment, including substantial occupational impairment. These include a June 1993 VA examination report, October 1996 medical record, November 1996 VA examination report, May 1997 decision review officer hearing testimony, June 1997 VA examination report, October 1997 RO hearing testimony, and a November 1997 VA examination report. The Board, in its October 2017 decision, however, found substantial evidence calling into question the Veteran's credibility in reporting his service-connected disability symptoms, impairment, and work history, including inconsistent statements regarding these, and what the Board found was a tendency to exaggerate the severity of symptoms, specifically for purposes of secondary gain. It therefore determined that there was there is no credible foundation for finding that the Veteran's headaches were of such sufficient severity as to make him unable to secure and follow a substantially gainful occupation prior to November 12, 1997, and, rather, the most credible evidence made it possible to infer only that the Veteran had chronic headaches which were "mild." B. After the October 2017 Board Decision In its February 2019 Memorandum Decision, the Court determined that the Board did not discuss "evidence of record demonstrating many instances prior to 1996 when the [Veteran] sought treatment for his sinusitis with headaches," including a "June 1991 treatment record show[ing] that the [Veteran] frequently suffered from chronic headaches that caused him to feel dizzy and vomit." The Court further found that the Board failed to discuss "records dated prior to 1998 that discuss the manifestations of his headaches," including August and June 1991 treatment for complaints of dizziness and headaches, and "lay statements that discuss the severity of his headaches," including March 1991 statements from the Veteran's ex-wife, friend, and neighbor indicating that he had a history of bad headaches. The Veteran's attorney submitted a June 2019 vocational assessment from B.M.R. The assessment notes the Veteran's work history as a truck driver from 1972 to 1985 when he stopped working, and as a machine operator before then. After reviewing and discussing the record, and interviewing the Veteran, B.M.R. opined that the Veteran's service-connected sinusitis and headaches likely resulted in inability to secure or follow a substantially gainful occupation at any exertional level as of June 1993. In this regard, on VA examination in June 1993cited by B.M.R. in her assessmentthe noted history included headaches occurring spontaneously, now on a daily basis, frontal in nature, lasting anywhere from 15 minutes up to an hour where the Veteran had to sit or lay down and relax, with about once or twice per week the headaches becoming so severe that he became nauseated or had sensitivity to light and blurred vision with the headaches. It was noted that he was not able to work or do any type of physical activity when the headaches were present because this would worsen the head pain. Regarding the Veteran's and his attorney's claim of dizziness occurring with his headaches, the Board, in its November 2019 remand, also noted a November 1994 private medical treatment record noting "a recent history of aggressive dizziness occurring several times a day associated with nausea and vomiting," with "spells [] happening 2-3 times per day and [] impairing his ability to function normally." The examining physician's impression was that the Veteran had Meniere's disease involving his left ear. As noted above, in a February 2017 rating decision, the RO granted service connection for Meniere's disease as related and secondary to the service-connected disability of sinusitis with headaches, rated 100 percent effective November 10, 2016. This decision was largely based on a January 2017 VA medical opinion that the Veteran's Meniere's disease was at least as likely as not the result of his service-connected sinusitis with headache. Given the above, the Board, in its November 2019 remand, referred the Veteran's claim to the Director of Compensation Service for consideration of a TDIU for the period of March 26, 1991, to April 12, 1998, on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). The Director was to consider all of the evidence of record, to specifically include: the medical records, including those dated in June and August 1991 for complaints of headaches and dizziness, and March 1991 statements from the Veteran's ex-wife, friend, and neighbor regarding the Veteran's history of headaches, as submitted by the Veteran's attorney in July 2019; the June 1993 VA neurological examination; the November 1994 private medical treatment record noting a recent history of aggressive dizziness occurring several times a day associated with nausea and vomiting, impairing his ability to function normally, with the impression of Meniere's disease; and the June 2019 vocational assessment from B.M.R. Pursuant to the Board's remand instructions, the AOJ, in an August 2020 memorandum to the Director, Compensation Service, provided the background information and evidence in the Veteran's case along with a discussion of the merits, and gave the following recommendation: "Grant entitlement to TDIU on an extra-schedular basis from an effective date earlier than April 13, 1998." In response, in November 2020, the Director of Compensation Service requested that the AOJ provide an advisory retrospective medical opinion. The Director noted that it was "apparent that the [Veteran's] headaches were of sufficient severity as early as June of 1993 to at least cause disruption in terms of the Veteran's ability to pursue or follow gainful employment," and therefore "it is critical that a medical determination is made to indicate if these headaches were, in fact, part and parcel of the condition of sinusitis (as is indicated by the way in which service connection for both sinusitis with headaches and migraine/tension headaches is reflected on the rating code sheet), or if these headaches were, in fact, a separate condition of migraine headaches, as seems indicated in the medical evidence of record, as early as June of 1993." In accordance with the November 2020 Director's request, in November 2020, a VA physician reviewed the record and essentially stated that he could provide no opinions without speculating. In another November 2020 memorandum to the Director of Compensation Service, the AOJ noted the VA physician's report, and again provided the recommendation: "Grant entitlement to TDIU on an extra-schedular basis for the period of March 26, 1991, to April 12, 1998, based on the Board of Veterans' Appeals request in the remand dated November 19, 2019." In January 2021, the Director of Compensation Service issued an advisory opinion to the AOJ. The opinion notes that the Veteran has a high school education with work experience as a truck driver, and last worked full-time May 21, 1985, after a back injury, with no shown attempts to obtain sedentary work. The opinion also notes that the Veteran has service-connected disabilities "which could have functional impact and impair prolonged activities," but that "[t]he American workplace has had a dramatic shift in the labor force over the last several decades," where "Americans generally have less strenuous jobs compared to those of years ago," which was "due in part to the increasing reliance on computers, Internet, and e-mail." The opinion stated that "t]here are many jobs in the workplace that require only light activity," and "technological advances (such as communication devices and adaptive equipment) have broadened employment opportunities for the disabled with reasonable accommodations that were not previously available." The opinion found "no evidence of inability to perform sedentary employment with adequate reasonable accommodations due to [service-connected] conditions prior to from [sic] April 13, 1998." The Director therefore concluded: "The evidence fails to support the contention that any of the [service-connected] disabilities or a combination of the effects of those disabilities prevented gainful employment prior to April 13,1998," and that "[e]ntitlement to TDIU prior to April 13, 1998 under provision 38 C.F.R. § 4.16(b) is denied." In a January 2021 supplemental statement of the case, the AOJ continued to deny a TDIU prior to April 13, 1998, based on the Director's advisory opinion. A TDIU from March 26, 1991, to April 12, 1998, is granted on an extraschedular basis In this case, the evidence regarding the Veteran's functional impairment due to his service-connected sinusitis with headaches disability from March 26, 1991, to April 12, 1998, while extensive, is somewhat conflicting and vague. However, The Board reiterates that much of this evidence tends to show significant headache and sinusitis symptomatology in terms of severity, frequency, and duration, including relatively frequent episodes of incapacitation and dizziness, resulting in significant functional impairment, including substantial occupational impairment. The evidence also contains the June 2019 vocational assessment from B.M.R. opining that, given the Veteran's work history as a truck driver from 1972 to 1985, and as a machine operator before then, his service-connected sinusitis and headaches likely resulted in inability to secure or follow a substantially gainful occupation. Furthermore, on remand, the AOJin separate memorandums to the Director of Compensation Service prior to, and after, obtaining a requested medical opinionrecommended granting a TDIU on an extraschedular basis for the period of March 26, 1991, to April 12, 1998. The Director of Compensation Service, after noting in November 2020 that it was "apparent that the [Veteran's] headaches were of sufficient severity as early as June of 1993 to at least cause disruption in terms of the Veteran's ability to pursue or follow gainful employment," and obtaining an medical opinion that provided no pertinent information, issued an advisory opinion finding that the Veteran's service-connected disabilities did not "prevent[] gainful employment prior to April 13,1998." The Director, however, based this determination on questionable analysis and assumptions that lacked any clear explanation pertinent to the Veterans' circumstances. The opinion notes, while the Veteran had significant impairment in his former occupational activities, "[t]he American workplace has had a dramatic shift in the labor force over the last several decades," with "less strenuous jobs compared to those of years ago," which was "due in part to the increasing reliance on computers, Internet, and e-mail," so that accommodations might be available to the Veteran that were not available in years past. However, this reasoning seems not to take into account the time period in questionfrom 1991 to 1998, over 20 years ago. Given the above, considering the Board's heightened duty to consider the benefit of the doubt rule in this case, and resolving such reasonable doubt in favor of the appellant, the Board finds that, from March 26, 1991, to April 12, 1998, the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disability. Accordingly, a TDIU from March 26, 1991, to April 12, 1998, must be granted. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Andrew Mack, 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.