Citation Nr: 22011196 Decision Date: 02/25/22 Archive Date: 02/25/22 DOCKET NO. 18-12 947 DATE: February 25, 2022 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) prior to December 9, 2016, on an extraschedular basis, is granted. FINDING OF FACT Throughout the period on appeal, the Veteran has been unable to secure and maintain substantially gainful employment as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from March 1966 to April 1976. This matter is before the Board of Veterans' Appeal (Board) from an August 2014 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Veteran was scheduled for, but did not attend, a Travel Board hearing before a member of the Board in May 2019. The Veteran has not requested that his hearing be rescheduled, nor has he presented good cause to that effect. His hearing request is thus considered withdrawn. In December 2019 and December 2020, the Board remanded the issue for further development. 1. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to December 9, 2016, on an extraschedular basis, The Veteran seeks entitlement to a TDIU on an extraschedular consideration under 38 C.F.R. § 4.16(a) and (b). VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). A TDIU may be assigned where the schedular rating is less than total and it is found that a veteran is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) 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, 3.341, 4.16(a). If the veteran does not meet the required percentage standards set forth in 38 C.F.R. § 4.16 (a), he or she still may receive a TDIU on an extraschedular basis if it is determined that he or she is unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. 38 C.F.R. § 4.16(b). In cases where extraschedular consideration is warranted, referral to the Director of Compensation Service is necessary prior to a determination on eligibility. In determining unemployability for VA purposes, consideration may be given to a veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); see Faust v. West, 13 Vet. App. 342 (2000). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough, as a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Medical evaluations are probative to understanding the level of functional impairment; however, the ultimate determination of unemployability is a legal question, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the U.S. Court of Appeals for Veterans Claims defined the term "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16(b) to include two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of: a veteran's history, education, skill, and training; whether a veteran has the physical ability to perform the type of activities required by the occupation at issue; and, whether a veteran has the mental ability to perform the activities required by the occupation at issue. The Veteran filed his TDIU claim on May 8, 2012. As of May 8, 2012, the Veteran's combined disability rating was 30 percent. Since May 26, 2015, his combined disability rating was 50 percent. Since December 9, 2016, the Veteran's disability rating has been 70 percent. Since September 10, 2012, the Veteran had been service-connected for right eye uveitis, rated at 30 percent disabling. Since May 26, 2015, the Veteran was service connected for right eye uveitis, rated at 30 percent disabling and migraine headaches at 30 percent disabling. Since December 9, 2016, the Veteran was service connected for right eye uveitis, rated at 30 percent disabling and migraine headaches at 50 percent disabling. The Veteran was granted TDIU on a schedular basis from December 9, 2016. Thus, for the remaining period on appeal, the Veteran did not meet the requirements for a schedular TDIU. 38 C.F.R. § 4.16(a). The December 2020 Board decision remanded the claim for extraschedular consideration by the Director of the Compensation Service (Director). The Director subsequently denied the Veteran's claim. See January 2021 VA Memorandum. This issue has therefore returned to the Board. 38 U.S.C. § 7104(a); see Wages v. McDonald, 27 Vet. App. 233, 238 (2015) (providing that following the initial referral to the Director for extraschedular consideration, the Board reviews the issue of entitlement to a TDIU de novo). After careful review of the evidence, the Board finds that entitlement to a TDIU is warranted on an extraschedular basis for the entire appeal period. In the present case, in his May 2012 informal claim for TDIU, in connection with his claim for an increased rating for his service-connected right eye disability, the Veteran reported that he could not hold part time work due to his disabilities. In his January 2020 formal TDIU claim, the Veteran reported he was last employed full time in October 2010. See January 2020 VA Form 21-8940. He has a 4-year college education. He stated, in pertinent part, that his right eye disability and chronic migraines, prevented him from securing or following any substantially gainful occupation. A May 2013 decision by Social Security Administration (SSA) found the Veteran to be disabled. While such decisions are not binding upon the Board, they are nonetheless relevant evidence that must be considered along with the other evidence of record. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). The SSA decision determined the Veteran was disabled due to a prostate condition with a secondary right eye condition. Pertinent to the claim on appeal, the Veteran has consistently complained of strain on the eyes and debilitating headaches due to prolonged strain on the eyes. Due to prolonged exposure to computer and paperwork. See e.g., November 2006 Veteran Correspondence and December 2006 Statement in Support of Claim. In June 2014, the Veteran had a VA examination for his eyes. The Veteran was diagnosed with glaucoma of the bilateral eyes and cataracts. He had some vision loss in his left eye, but he was only blind in the right eye. The VA examiner noted that the Veteran's eye disability impacted his ability to work. The impact of the eye condition on the Veteran's ability to work was most likely due to blurred vision and restricted visual field. The posterior synechia mentioned earlier in the right eye was due to uveitis condition. In an August 2015 VA examination, the VA examiner noted that the impact of the eye condition on the Veteran's ability to work was that the Veteran was unable to read normal size print. His distance vision was blurry and made it difficult to watch TV. The Veteran reported migraines, triggered by anxiety and associated decreased vision. In September 2015, the Veteran was afforded a VA examination for headaches. He was diagnosed with migraine and tension headaches. The Veteran's symptoms included constant head pain, pulsating or throbbing head pain, pain localized to one side of the head, nausea, sensitivity to light and sound, and vomiting. The Veteran had prostrating attacks of migraine headache pain once every month and prostrating attacks of non-migraine headache pain more frequently than once per month. The Veteran's headaches impacted his ability to work in that it limited his reading, and he lost focus and concentration. Importantly, the examination found that the Veteran had prostrating and prolonged attacks of migraine pain productive of severe economic inadaptability. The foregoing evidence establishes that Veteran is unable to perform his current employment due to the debilitating effects of the Veteran's visual disability and resultant recognized debilitating migraines regardless of service connection during the claim on appeal. His employment experience is in sedentary employment, where his use of a computer is necessary and the strain on his eyes presages debilitating migraines. In light of the foregoing, the Board finds that the evidence supports that the Veteran is unable to maintain substantially gainful employment due to his service-connected disabilities. The Board acknowledges the negative determination made by the Director of Compensation Service in January 2021. Specifically, the Director determined that an extraschedular TDIU was not warranted. The Director opined that the Veteran did not attempt to obtain sedentary work and that SSA had granted disability benefits based on both the Veteran's service-connected eye disability and nonservice-connected prostate disability with no consideration of migraine headaches. The Director also noted that the Veteran has a 4-year education and the evidence failed to show that the Veteran was unable to perform sedentary employment with reasonable accommodations. The Board is not bound by an adverse determination by the Director regarding entitlement to a TDIU on an extraschedular basis. See Wages, 27 Vet. App. at 236. In this regard, the Board reviews the Director's determination de novo and it does not constitute evidence that must be weighed. Kuppamala v. McDonald, 27 Vet. App. 447 (2015). In reviewing the Director's determination, the Board notes that the Director limited the analysis to the SSA decision and found the lack of consideration of the Veteran's migraines as determinative and did not focus on the other VA opinions or the Veteran's statements. The Director did not discuss the fact that the Veteran's prior employment experience was in a sedentary position and VA has already found his service-connected disabilities preclude meaningful employment. Accordingly, the Board assigns low probative value to the Director's determination. Given the Veteran's consistent and credible statements, and the supporting medical evidence of record, the Board finds the evidence supports that the Veteran is unable to maintain substantially gainful employment due to his service-connected disabilities. A TDIU is granted for the entire appeal period. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kelsey Love, Associate 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.