Citation Nr: 22017776 Decision Date: 03/26/22 Archive Date: 03/26/22 DOCKET NO. 16-52 797 DATE: March 26, 2022 ORDER Effective June 29, 2015, entitlement to a finding of total disability based on individual unemployability (TDIU), on an extraschedular basis, is granted. FINDING OF FACT The Veteran's service-connected chronic headaches preclude the Veteran from securing or following a substantial gainful occupation. CONCLUSION OF LAW Effective June 29, 2015, the criteria for entitlement to TDIU, on an extraschedular basis, 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 served on active duty with the U.S. Air Force from April 1983 to March 1987. This matter comes before the Board of Veterans' Appeals (Board) from a July 2015 rating decision by an agency of original jurisdiction (AOJ) of the United States Department of Veterans Affairs (VA). In May 2019 and June 2021, the Board remanded this matter for further evidentiary development. The directives have been substantially complied with and the matter again is before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). It is the established policy of VA 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. See 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." See 38 C.F.R. §§ 3.340(a)(1), 4.15. TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person 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). The Veteran is service-connected for chronic headaches, rated as 10 percent disabling from July 14, 1999, 30 percent disabling from January 21, 2009, and 50 percent disabling from June 29, 2015; and tinnitus, rated as 10 percent disabling from March 16, 2012. Because the Veteran is not in receipt of the minimum schedular rating required for the award of a TDIU under 38 C.F.R. § 4.16(a), the Board is to consider whether 38 C.F.R. § 4.16(b) is for application. Fanning v. Brown, 4 Vet. App. 225, 229 (1993). As discussed below, the claim has already been referred to the Director of Compensation Service for extraschedular consideration. Though VA is required to obtain the Director's decision before awarding extraschedular TDIU benefits in the first instance, the Board is not bound by the Director's decision or otherwise limited in its scope of review that determination. Wages v. McDonald, 27 Vet. App. 233, 236-38 (2015) (citing 38 U.S.C. § 511(a), 7104(a); 38 C.F.R. § 4.16(b)). 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 issue is not whether the Veteran can find employment generally, but whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran seeks entitlement to TDIU on an extraschedular basis. The Veteran asserts that her service-connected chronic headaches prevent her from securing and maintaining substantially gainful employment. The claim for TDIU arises from appeal of a July 2015 rating decision continuing a 30 percent evaluation for headaches following a June 29, 2015, routine future examination; the Veteran stated that she quit working due to the headaches, warranting inferral of a TDIU claim under Rice v. Shinseki, 22 Vet. App. 447 (2009) as part and parcel of the claim for increase. In its May 2019 remand, the Board acknowledged that the Veteran did not meet the schedular percentage requirements for a TDIU. However, the Board noted that the Veteran's lay statements were sufficient to raise the possibility of entitlement to a TDIU on an extraschedular basis. Therefore, the Board remanded the issue to the Director of Compensation and Pension Service to consider whether a TDIU may be awarded on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). The evidence of record reflects that the Veteran was afforded a VA examination in March 2013. The Veteran endorsed severe headaches with a frequency of at least four times per month, which would last for two days at a time. The VA examiner opined that the Veteran's headaches impact her ability to work, and referenced the Veteran's reports that she stopped working in an office setting as she had to miss too many days due to headaches. She noted that she missed at least one day of work per week. At a subsequent June 2015 VA examination, the VA examiner similarly opined that the Veteran's headaches impact her ability to work. The Veteran stated that she had to quit working due to the frequency of headaches and missing work. Thereafter, the evidence of record reflects that the Veteran was most recently afforded a VA examination in August 2017. The VA examiner opined that the Veteran's prostrating headaches three to four times per week would likely prevent any ability to maintain gainful employment in any occupational setting. In May 2019, the Board remanded the matter for referral to the Director of Compensation and Pension Service (C&P) for consideration of the Veteran's entitlement to a TDIU on an extraschedular basis, supported by a full statement of the Veteran's service-connected chronic headaches, educational and vocational attainment, and employment history and all other factors having a bearing on the issue in accordance with 38 C.F.R. § 4.16(b). In March 2020, a determination was received from the Director of Compensation and Pension which found that the Veteran was not entitled to a TDIU on an extraschedular basis pursuant to the provisions of 38 C.F.R. § 4.16(b). In her determination, the Director primarily relied on the Board's May 2019 grant of a 50 percent disability rating for the Veteran's chronic headaches. The Director acknowledged the Board's May 2019 finding that Veteran's headaches are productive of very frequent prostrating and prolonged attacks that cause her to lose productivity at work throughout the appellate period. Nevertheless, she indicated that such a finding was resolved in the Veteran's favor and determined that the Veteran's headaches "really [fell] somewhere between 30 percent and 50 percent" disability ratings. The Director noted that the decision was based on a review of medical and lay evidence, and the Veteran's work history and education. The Director concluded that the Veteran's level of impairment was consistent with her assigned disability rating and that the grant of an extraschedular rating was not warranted. After a review of the Director's determination, it is apparent that evidence of record which was favorable to the Veteran was not considered in the determination. Notably, neither the Veteran's statements regarding her ability to work contained within the March 2013, June 2015, and August 2017 VA examination reports of record nor the opinions of the respective VA examiners during the period on appeal were addressed in the determination. Further, the Director's opinion on what the disability was "really" like is irrelevant and contrary to law. The Board notes that the Veteran did not complete an Application for Increased Compensation Based on Unemployability (VA Form 21-8940) or Request(s) for Employment Information in Connection with Claim for Benefits (VA Form 21-4192), as requested by the Board in its prior June 2021 remand. Nevertheless, the record does not appear that the Veteran has maintained substantial gainful employment during the relevant period on appeal. Social Security Administration records associated with the claims file subsequent to the Board's June 2021 remand confirm this finding. In her application for Social Security disability benefits, the Veteran reported that her highest educational level is a high school diploma and specialized training as a small arms marksmanship training instructor through the U.S. Air Force. Considering the above, the Board finds that the most probative evidence of record demonstrates that the Veteran's service-connected chronic headaches preclude her from securing and following substantially gainful employment. Unlike the criteria for an extraschedular rating under 38 C.F.R. § 3.321, the grant of TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b) is based on a subjective standard that seeks to determine if a particular Veteran is precluded from employment based on his service-connected disabilities. The evidence of record that shows that the Veteran's symptoms would pose significant barriers to obtaining and maintaining substantially gainful employment. See Ray v. Wilkie, 31 Vet. App. 58, 72 (2019) (holding that the phrase "unable to secure and follow a substantially gainful occupation" in § 4.16 has economic and noneconomic components, the latter of which focuses on the individual veteran's ability to perform the physical and mental acts necessary for such an occupation). prevent her from effectively functioning in substantially gainful employment. While she retains the ability to perform some occupational tasks, her service-connected chronic headaches would keep her from functioning effectively in substantially gainful employment. Consistent with the Board's May 2019 finding regarding the nature and severity of the Veteran's chronic headaches, the Veteran would be unable to concentrate and stay on task, which would likely result in poor performance and the inability to complete the productivity and pace requirements of any occupation successfully or reliably within a competitive work environment. Further, such presumes she could even regularly report to work given the severity and frequency of her headaches. The Board finds that the weight of the evidence favors the Veteran and entitlement to a TDIU on an extraschedular basis is warranted for the entirety of the appellate period, from June 29, 2015. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.A. Ong, 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.