Citation Nr: 0005616 Decision Date: 03/01/00 Archive Date: 03/14/00 DOCKET NO. 97-34 188 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to a total disability evaluation based on individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. M. Ivey, Associate Counsel INTRODUCTION The appellant had active service from December 1962 to February 1966. This matter came before the Board of Veterans' Appeals (Board) on appeal from a January 1997 rating decision of the New Orleans, Louisiana, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied entitlement to a total disability evaluation based on individual unemployability. FINDING OF FACT Service connection is in effect for migraine headaches, which is evaluated as 50 percent disabling. He is not unemployable due to service-connected disability. CONCLUSION OF LAW The criteria for a total disability rating based upon individual unemployability (TDIU) have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.340, 3.341, Part 4, including § 4.16 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant contends that due to his service-connected migraine, he is unemployable. Migraine has been evaluated as 50 percent disabling. The appellant underwent a VA examination in December 1995. He reported that he seldom goes more than three days without a headache, and said he may have headaches as often as two or three times a day. The appellant stated that they were proceeded by some visual phenomena as an aura, and were always right-sided, mostly temporal in locale. The impression was chronic intractable migraine headaches, which had not responded to the usual medications. The examiner commented that the migraine headaches continued to be a problem, which had progressed since 1989 and which disrupted the appellant's life to a great extent. The VA outpatient treatment records show that the appellant was seen for complaints of migraine headaches from August 1996 to March 1998. The VA Vocational Rehabilitation records dated, November 1996 to April 1997 show that the appellant worked in an unpaid Work Experience Program 30 hours a week originally from September 1996 through March 1997. His job performance ratings were satisfactory. The program extended for an additional two months at the appellant's request. At the end of that time the possibility of further schooling was discussed with the appellant, but he prevailed with the counselor and chose to be declared rehabilitated in order to receive a special two month educational assistance allowance (EAA). The job search proved unsuccessful in the months that followed. In August 1997 a desire to seek employment in light accounting or security was proposed. A previous search focused on medical records work, which the appellant reported that his migraines would permit him to pursue. The Job Developer indicated a problem with follow through. He reported that the appellant said that he would like to work but did not seem to want to put forth much effort into getting employment. It was indicated that the leads were provided to the appellant but not responded to by him. Similar problems were reported in a September 1997 interview. At the December 1997 RO hearing the appellant testified that he was on a broad spectrum of medication which he took daily every six hours. He stated that he formerly had headaches perhaps three days a week. The appellant asserted that the medication diminished the frequency to twice monthly. He indicated that oftentimes his vision was affected so that he could not do his job. The appellant reported that he last worked the graveyard shift at a homeless shelter. This helped as he worked alone and at his own pace. He testified that he worked at the VA Medical Center for about six months as part of his vocational rehabilitation training. As with the homeless shelter, they accommodated his headaches. He did not have to work at the same pace as a full time for pay employee. The appellant underwent a VA examination for neurological disorders in May 1998. The neurological examination showed cranial nerves to be normal as was his motor system and motor power. Deep tendon reflexes were also normal and nonlocalizing. The impression was typical migraine attacks. The examiner commented that the frequency was slightly increased from the time of onset, but was well relieved by the pain medications. The VA examiner commented that in terms of employment the headaches last all day and sometimes several hours. Most of the time, they were relieved by the pain medication. He indicated that the appellant should not be employed in a situation where there is fire or other type of hazards with the type of sedation and other types of medication he was taking. Simple tasks at a desk could be handled by the appellant between these severe attacks of headaches. Migraine with characteristic prostrating attacks averaging one in two months over the last several months warrant a 10 percent disability evaluation. 38 C.F.R. Part 4, Diagnostic Code 8100 (1999). A 30 percent evaluation requires more frequent prostrating attacks (about once a month), and a 50 percent rating requires very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The appellant is in receipt of the highest evaluation for migraine. Total ratings for compensation purposes may be assigned where the combined schedular rating for the veteran's service- connected disability or disabilities is less than 100 percent when it is found that the service-connected disabilities are sufficient to render the veteran unemployable without regard to either his advancing age or the presence of any nonservice-connected disorders. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.340, 3.341 (1999). The provisions of 38 C.F.R. § 4.16(a) (1999), establish, in pertinent part, that: Total disability ratings for compensation may be assigned, where the schedular rating is less than the total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, 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. Service connection is in effect for migraine, which is evaluated as 50 percent disabling. Thus, the appellant does not meet the requirements set forth in 38 C.F.R. § 4.16(a). Therefore, he has no legal merit to the claim based upon schedular requirements. The Board has thoroughly reviewed the claims file in its entirely. The Board must note that no medical professional has stated that the appellant's service-connected migraine headaches render the appellant unemployable. The VA examiner commented that the appellant should not be employed in a situation where there is fire or other type of hazards with the type of sedation and other types of medication he was taking. He indicated that simple tasks at a desk could be handled by the appellant between these severe attacks of headaches. The vocational rehabilitation specialist's indicated a problem with follow through. He reported that the appellant said that he would like to work but did not seem to want to put forth much effort into getting employment. It was indicated that the leads were provided to the appellant but not responded to by him. With respect to extraschedular criteria, review of the record reveals that the RO expressly considered referral of the case to the Director of the Compensation and Pension Service for the assignment of an extraschedular rating under 38 C.F.R. § 4.16(b) (1999). However, the RO determined that there were no exceptional factors or circumstances associated with the appellant's disablement. When a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and he/she fails to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), the rating board should submit the case to the Director of Compensation and Pension Service extraschedular consideration. 38 C.F.R. § 4.16(b). See 38 C.F.R. § 3.321(b)(1); see also Fisher v. Principi, 4 Vet. App. 57, 59- 60 (1993) and VAOGCPREC 75-91 (1991). The United States Court of Appeals for Veterans Claims (hereinafter "the Court") has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). The Court has further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board has reviewed the record with these mandates in mind and finds no basis for further action on this question. See VAOPGCPREC. 6-96 (1996). The appellant has not alleged, and the evidence does not establish, frequent periods of hospitalization. Although there is evidence of unemployability, that status has been attributed to other factors. The effect of impairment due to the nonservice- connected disability may not be considered. The Board finds that the entire record, as a whole, establishes that the appellant's unemployability status is not due to the service- connected migraine headaches alone. Accordingly, a total rating for compensation on the basis of individual unemployability is not warranted. The preponderance of the evidence is against the claim and there is no doubt to be resolved. At the December 1997 RO hearing and in his Substantive Appeal the appellant argued that service connection for a mental disorder should be considered secondary to headaches. The appellant asserted that the issue of service connection for a mental disorder secondary to headaches was inextricably intertwined with the issue of evaluation of the headaches. The Board finds that such is not the case. The Court has held that the regulation governing TDIU ratings and the Schedule ratings scheme involve different considerations. Although a TDIU rating claim predicated on a particular service-connected condition is "inextricably intertwined" with a rating increase claim regarding the same condition, it does not necessarily follow that a rating increase claim for a particular service-connected condition is "inextricably intertwined" with a TDIU rating claim predicated on that condition. The Schedule for Rating Disabilities and the structure for evaluating a TDIU rating claim complement each other. The regulation governing TDIU ratings, however, underscores the fact that, while complementing each other, the Schedule and the TDIU rating scheme involve different considerations. Holland v. Brown, 6 Vet. App. 443 (1994). The Court held that a veteran's claim for extra-schedular consideration of a service-connected condition, which was on appeal to this Court, was not inextricably intertwined with a TDIU rating claim that had been referred to the agency of original jurisdiction. The extra-schedular inquiry under 38 C.F.R. § 3.321(b)(1) ("marked interference with employment") differed from the inquiry under the TDIU rating regulation, 38 C.F.R. § 4.16 ("unable to secure and follow a substantially gainful occupation"). Kellar v. Brown, 6 Vet. App. 157 (1994). In this case the appellant's claim for service connection for a mental disorder secondary to headaches is not inextricably intertwined with the issue of a total rating for compensation based on individual unemployability. The two issues involve different considerations. Regardless, the claim was addressed by the regional office and denied. More importantly, the veteran never submitted any competent evidence of a relationship between the two conditions. Therefore, the claim for service connection for a psychiatric disorder was not well grounded. In regard to the statement concerning impotency, it appears that he relates this condition to a psychiatric disorder. Since the veteran is not service-connected for a psychiatric disorder and that claim had been denied, the allegation of secondary service connection for impotence has no legal merit. ORDER A total rating for compensation on the basis of individual unemployability is denied. H. N. SCHWARTZ Member, Board of Veterans' Appeals