Citation Nr: 25005481 Decision Date: 04/23/25 Archive Date: 04/23/25 DOCKET NO. 05-31 047 DATE: April 23, 2025 ORDER Entitlement to a total disability based upon individual unemployability (TDIU) prior to November 13, 2020, to include on an extraschedular basis is denied. FINDING OF FACT The Veteran's service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for an extraschedular TDIU prior to November 13, 2020, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1983 to December 1986. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before an Acting Veterans Law Judge in July 2011. A transcript of this hearing is of record. 1. Entitlement to a total disability based upon individual unemployability (TDIU) prior to November 13, 2020, to include on an extraschedular basis The Veteran seeks a TDIU on an extraschedular basis. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id. For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3)disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to 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. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Even when the criteria under 38 C.F.R. § 4.16 (a) are not met, entitlement to individual unemployability 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). The Board does not have the authority to assign an extraschedular TDIU in the first instance without initially referring the claim to VA's Director of Compensation Service. Bowling v. Principi, 15 Vet. App. 1 (2001). The Veteran has the following disabilities prior to November 13, 2020, that are service connected: residuals of cervical spine trauma (rated 30 percent, from November 2004); depression (rated 30 percent from June 2007); and headaches (rated 0 percent from May 2005). Based on the forgoing, the Veteran does not meet the percentage standards set forth in § 4.16(a). The Board notes that the evidence has already been referred to the appropriate VA officials for consideration of entitlement to TDIU on an extraschedular basis under the provisions of 38 C.F.R. § 4.16 (b). Specifically, in April 2024, the Executive Director of Compensation Service issued an Advisory opinion on this matter. The Veteran contends that he is unable to work due to his service-connected disabilities. In a June 2005 statement, the Veteran reported he was not able to work due to his disabilities. He indicated neck problems, low back problems, and headaches that his employer did not want to deal with. In a February 2006 statement, the Veteran reported in relevant part that he had neck pain, headaches, migraines, stiffness, depression, and anxiety. He related he had difficulty doing physical labor. In a December 2007 statement, the Veteran reported he could not work as a welder due to neck pain. He related that he could not be in one position for long, and thus could not retrain due to having to sit for more than 30 minutes at a time. In an October 2014 statement, the Veteran reported headaches and a stiff neck. In a March 2021 statement, which the Board notes is after the relevant period on appeal, the Veteran reported that on his worst days he cannot drive or turn his head, and that he was unable to sit for more than 30 minutes without a break. He reported headaches 3 to 4 times per week, during which he needed to lie down in a dark room. Lastly, he reported anxiety, anger issues, panic attacks, and poor focus and concentration due to his depression. He argued he was unable to work due to chronic neck pain, headaches, poor focus, and depression. The Board gives this statement more limited weight, because it describes the Veteran's symptoms after the relevant period on appeal. The Veteran was afforded a VA examination for the spine in December 2004. The Veteran reported mild fatigue, mild decreased motion, and moderate stiffness of the cervical spine, and severe spasms of the cervical spine. After physical examination, the examiner concluded that the Veteran's cervical spine disability would cause decreased mobility, decreased manual dexterity, pain, and other effects described as a need to use pain medication while welding. The Veteran was afforded a VA examination for the spine in December 2007. The Veteran reported neck pain, fatigue, and tiredness with sleepiness. Despite the Veteran's lay reports and physical examination findings, the examiner concluded that there were no significant effects on occupational function or daily activities. The Board gives the December 2007 VA examination limited weight, as its conclusions are not entirely consistent with the Veteran's reports at the examination. The Veteran was afforded a VA examination for mental disorders in December 2007. The Veteran reported anxiety, depression, and insomnia. No clinical occupational assessment or specific limitations were indicated by the examiner. The Veteran was afforded a VA examination for internal medicine in July 2009. The Veteran reported worsening pain in his neck. The examiner noted symptoms of decreased range of motion, fatigue, stiffness, pain, weakness, and spasms. With respect to the cervical spine condition, the examiner opined that the Veteran would be able to work. There were no occupational effects of this condition. The examiner concluded that the Veteran is stable enough to perform any job duty that he is qualified to do. At a July 2011 hearing, the Veteran testified that he could not perform his welding job while taking pain medications. He reported neck pain, shoulder pain, and headaches. He reported difficulty with long-distance driving and turning his head. The Veteran was afforded a VA examination for the cervical spine in January 2013. The Veteran reported pain and numbness. Despite the Veteran's lay report, the examiner found that the cervical spine disability did not impact the Veteran's ability to work. The Veteran was afforded a VA examination for headaches in December 2013. The Veteran reported constant headaches since 1986. The examiner noted symptoms of constant head pain, and pain with physical activity. Headaches were noted to last less than 1 day. The examiner found the Veteran's headaches did not impact his functional ability to work. The Veteran was afforded a VA examination for the cervical spine in February 2017. The Veteran reported headache, neck, and shoulder pain. The veteran related that his doctor advised him that his pain medications made his prior welding work dangerous. The examiner found the Veteran's neck disability impacted his functional ability to work. Specifically, the examiner found that the Veteran would need to avoid overhead work and commercial driving. The Veteran was afforded a VA examination for headaches in February 2017. The Veteran reported painful headaches that he treated with Tylenol and Hydrocodone. The examiner noted symptoms of constant head pain and sensitivity to light. The examiner indicated the Veteran did not have characteristic prostrating attacks. The examiner concluded that the Veteran's headaches did not impact his functional ability to work. The Veteran was afforded a VA examination for the cervical spine in August 2019. The Veteran reported difficulty moving his neck, pain, and tingling. The examiner found the Veteran would lose 2 to 4 weeks of work time in 12 months, and have limited range of motion of the neck. The Veteran was afforded a VA examination for headaches in August 2019. The Veteran reported chronic headaches, but denied current treatment for them. The examiner noted symptoms of headache pain, and sensitivity to light, lasting less than 1 day. The examiner did not find the Veteran experienced characteristic prostrating attacks. No functional impact on the Veteran's ability to work was assessed by the examiner. The Veteran was afforded a VA examination for the cervical spine in November 2020. The Veteran reported neck pain, numbness, and difficulty lifting objects. The examiner found the Veteran's neck condition impacted his functional ability to work. Specifically, the examiner found the Veteran would lose 0 to 1 week of work in the past year, have difficulty with fields of movement, have difficulty driving long distances, and have difficulty lifting and carrying items. The Veteran was also noted to report altered grip strength. The Veteran was afforded a VA examination for headaches in November 2020. The Veteran reported daily minor headaches and significant headaches requiring rest 3 to 4 times per week. The examiner noted symptoms of characteristic prostrating attacks once per month. The examiner found the Veteran's headaches impacted his functional ability to work. Specifically, the examiner found the Veteran would lose 0 to 1 week of work in the year, and would be unable to complete physical labor during a headache attack. The Veteran submitted a November 2020 private evaluation by Dr. M.S. in support of his claim. The Veteran reported headaches, nausea, and light sensitivity. He related that the frequency varied. The clinician opined that the severity of the Veteran's headaches at the time of an attack precluded him from work. In a July 2022 VA opinion, the examiner found that the Veteran's headaches would interfere with working at brightly lit computer screens, outdoors, or doing strenuous labor. In a July 2022 VA opinion, the examiner found the Veteran's cervical spine condition would cause difficulty with looking up long periods of time, sitting at a desk or computer or driving for long periods of time, or rapid repetitive head movements. In a July 2022 VA opinion, the examiner found the Veteran's depression would result in moderate limitation in the following categories: ability to maintain attention and concentration for extended periods, ability to work in coordination with or proximity to others without being distracted, ability to complete a normal workday and work-week without interruptions, ability to interact appropriately with the general public, ability to accept instructions and respond appropriately, and ability to get along with coworkers or peers without distracting them. The examiner found the Veteran's mental health profile would cause mild limitation in the following categories: ability to sustain an ordinary routine without special supervision, ability to set realistic work-related goals or make plans independently, ability to understand and remember detailed instructions, ability to carry out detailed instructions, ability to maintain socially appropriate behavior, ability to respond to changes in the work setting, and ability to remember location and work-like procedures. For the reasons that follow, the Board finds that a TDIU on an extraschedular basis is not warranted. The Veteran reported that he had two years of college. He indicated that he worked for various companies as a welder from September 2003 to September 2006. He indicated that he had worked as a foreman from September 2000 to May 2003. The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the physical effects of cervical spine and recurrent headache disabilities. The 2004 VA examination found that the Veteran's cervical spine disability would cause decreased mobility, decreased manual dexterity, pain, and other effects described as a need to use pain medication. The 2017 VA examination determined that the Veteran should avoid prolonged driving and working overhead. The 2020 VA examination further determined that the Veteran would lose 0 to 1 week due to headaches. The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the mental effects of major depression disability. The July 2022 VA examination found the Veteran would have moderate difficulties interacting with others or the public, maintaining focus, or working in coordination with others. The Board acknowledges that the Veteran would need to avoid prolonged sitting or driving, have decreased mobility, and would occasionally miss a day due to his headaches. The Board finds the Veteran would not be able to maintain his past work as a welder, but would be able to perform light exertion tasks that do not require significant interactions with coworkers or lifting objects overhead. (Continued on the next page) ? Given the forgoing, the Veteran's service-connected disabilities do not preclude the ability to secure and follow a substantially gainful occupation consistent with the Veteran's education, skills, training, and work history. The Veteran's disabilities would limit his ability to turn his neck, lift objects overhead, or perform highly complex and high-stress tasks. The Board finds the Veteran would not be able to maintain his past work as a welder, but would be able to perform light-exertion work that does not allow overhead tasks, frequent teamwork, or prolonged attention to a task. The Board notes that the evidence does support some impairment in this case. However, the Board finds that any resulting impairment of function is adequately contemplated by the current disability ratings assigned for the Veteran's service-connected disability. Accordingly, a TDIU is not warranted. M. MILLS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Lauritzen 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.