Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities on an extraschedular basis prior to August 30, 2022, is granted.

Citation Nr: 26001392 Decision Date: 01/30/26 Archive Date: 01/30/26 DOCKET NO. 16-48 844 DATE: January 30, 2026 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities on an extraschedular basis prior to August 30, 2022, is granted. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, prior to August 30, 2022, the combined effects of her service-connected disabilities rendered her unable to obtain or maintain a substantially gainful occupation consistent with her education and work history. CONCLUSION OF LAW Prior to August 30, 2022, the criteria for entitlement to a TDIU on an extraschedular basis due to the Veteran's service-connected disabilities have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Army National Guard of Nebraska and as a Reserve of the Army from August 2005 to August 2014, with multiple periods of active duty, active duty for training (ADT), and inactive duty training (IDT). The Veteran was ordered to active duty from March to September 2006 in support of Operation Iraqi Freedom, and from October 2007 to September 2008. The Board of Veterans' Appeals (Board) thanks the Veteran for her service to our country. This matter has a long procedural history, initially coming to the Board on appeal from an August 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. Most recently, in the November 2025 decision, the Board remanded the issue of entitlement to a TDIU prior to August 30, 2022. In a November 2025 rating decision, the Regional Office granted entitlement to individual unemployability effective August 30, 2022, and established basic eligibility to Dependents' Educational Assistance based on permanent and total disability status from August 30, 2022. In November 2025, the Regional Office issued a Supplemental Statement of the Case with respect to entitlement to a TDIU prior to August 30, 2022. The appeal has now returned to the Board for appellate action. Entitlement to an extraschedular TDIU prior to August 30, 2022. The Veteran and her representative maintain the Veteran's service-connected lumbar sprain with ankylosing spondylitis, cervical spine strain, and tension headaches render her unable to obtain and retain substantially gainful employment. VA will grant a TDIU when the evidence shows that the veteran is precluded, by reason of her service-connected disabilities, from securing and following "substantially gainful employment" consistent with her 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 is provided where the combined schedular evaluation for service-connected disabilities is less than total or 100 percent. 38 C.F.R. § 4.16(a). Under 38 C.F.R. § 4.16(a), if there is only one such disability, it must be ratable at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such 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. 38 C.F.R. § 4.16(a). However, for those veterans who fail to meet the percentage requirements set forth in accordance with 38 C.F.R. § 4.16(a), a total disability rating for compensation may nevertheless be assigned on an extraschedular basis by the Director, Compensation Service (herein Director), when it is found that service-connected disabilities are sufficient to produce unemployability. 38 C.F.R. § 4.16(b). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the U.S. Court of Appeals for Veterans Claims (Court) defined the term "unable to secure and follow a substantially gainful occupation" as having two components: economic and 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 noneconomic component includes consideration of the veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. In assessing a veteran's ability to secure and follow a substantially gainful occupation, the Board is to consider a veteran's history, education, and skill, and training, as well as physical and mental abilities required by the occupation at issue. Ray, 31 Vet. App. 58. Specific physical ability factors including lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability factors including memory, concentration, ability to adapt to change, handle workplace stress, getting along with coworkers, and demonstrating reliability and productivity. Id. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. Van Hoose v. Brown, 4 Vet. App. 361 (1993). "A high rating in itself is recognition the impairment makes it difficult to obtain or keep employment." Id. The ultimate question, however, is "whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment." Id. An award of a TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skill, 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). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to her age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. While the question of unemployability is ultimately a legal determination for the trier of fact, as opposed to a medical finding, the medical evidence of record is probative as to the Veteran's condition and how it affects her employability. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). In this case, the Veteran is service connected for (1) lumbar sprain with ankylosing spondylitis as 20 percent disabling from January 6, 2015; (2) cervical spine strain associated with lumbar sprain as 30 percent disabling from February 1, 2016; (3) tension headaches associated with cervical spine strain as 0 (zero) percent disabling from February 1, 2016 to November 30, 2020, as 10 percent disabling from November 30, 2020 to August 30, 2022, as 30 percent disabling from August 30, 2022 to December 1, 2023, and as 50 percent disabling thereafter; and (4) tinnitus as 10 percent disabling from January 6, 2015. Thus, prior to August 30, 2022, The Veteran did not meet the threshold percentage criteria for a TDIU under 38 C.F.R. § 4.16(a), as she only had a combined rating of 30 percent from January 6, 2015 to February 1, 2016, 50 percent from February 1, 2016 to November 30, 2020, and 60 percent from November 30, 2020 to August 30, 2022. In December 2023 and April 2025, the Board found that the evidence showed an indication that the Veteran's service-connected disabilities rendered her unemployable under 38 C.F.R. § 4.16(b) and referral of the claim to the Director was warranted. The Director issued an advisory opinion in May 2025, finding while the Veteran's service-connected conditions could have caused occupational limitations, the cumulative evidence did not support that her service-connected disabilities would have precluded all forms of substantially gainful activity above and beyond what the rating schedule provides. Specifically, on the November 2020 VA headache examination report the examiner noted the Veteran's headache condition did not impact her ability to work. The Director concluded the overall evidence failed to support an exceptional situation that prevented gainful employment. Although the Board obtained the Director's decision regarding extraschedular TDIU benefits, the Board is not bound by the Director's decision. See Wages v. McDonald, 27 Vet. App. 223 (2015); 38 C.F.R. § 4.16(b). In consideration of the "economic component," the Veteran served honorably in the United States Army National Guard of Nebraska and as a Reserve of the Army from August 2005 to August 2014. Her primary military occupational specialty was Human Resources Specialist. She also performed duties as a material handler and supply. During her service in Iraq, she assisted with postal operations by receiving and distributing letters and packages, she assisted with administrative actions by packing and organizing files, and she assisted the Command Group where she was tasked with organizing and keeping track of all memorandums and documents. See Service Personnel Records. She reported she last worked full-time in 2013, and she became too disabled to work in 2013. She obtained an Associate Degree of Applied Science in Massage Therapy. See December 2023 VA Form 21-8940. In consideration of the noneconomic component, medical evidence tends to corroborate the Veteran's assertions concerning the effects of her service-connected lumbar sprain with ankylosing spondylitis, cervical spine strain, and tension headaches on her ability to obtain and maintain employment. The Veteran submitted to a VA back conditions examination in August 2016. The examiner diagnosed lumbosacral strain. The Veteran reported her chronic daily back pain had "changed my life" and "I feel like it's affected the alignment of my whole entire body." She reported flare-ups, "especially in the morning." She reported functional loss or functional impairment described as "it slows me down," "I can't run without being in pain," and "I can't do any lifting." On examination, range of motion was abnormal or outside of normal range. There was evidence of localized tenderness. Regarding functional impact, the examiner remarked the Veteran's thoracolumbar spine (back) condition impacted her ability to work as she was limited in such activities as bending and stooping and lifting. The Veteran submitted to several VA examinations in February 2019. During the back conditions examination, the VA examiner diagnosed lumbosacral strain and ankylosing spondylitis. The Veteran reported daily low back pain since military service. The condition had progressed since onset. She reported flare-ups occurring with prolonged standing and sitting. On examination, range of motion was abnormal or outside of normal range. There was evidence of localized tenderness. There was evidence of muscle spasm. Regarding functional impact, the examiner remarked the Veteran's thoracolumbar spine (back) condition impacted her ability to perform occupational tasks. During the neck conditions examination, the examiner stated the Veteran did not have a diagnosed cervical spine (neck) condition. The Veteran reported chronic neck pain. The condition had progressed since onset. She reported flare-ups occurring with any overhead activity. On examination, range of motion was normal. Regarding functional impact, the examiner remarked the Veteran's cervical spine (neck) condition did not impact her ability to perform occupational tasks. During the headaches examination, the Veteran reported "tightness that starts in the back of the head and radiates to both sides of the head; usually gets worse throughout the course of the day." The examiner diagnosed tension headaches with associated symptoms of pulsating or throbbing head pain, pain on both sides of the head, nausea, and changes in vision. Typical head pain was noted to be constant, lasting 1 to 2 days, located on both sides of the head. The examiner indicated that the Veteran did not have characteristic prostrating attacks of migraine/non-migraine headache pain. Regarding functional impact, the examiner remarked the Veteran's headache condition did not impact her ability to perform occupational tasks. The Veteran submitted to several VA examinations in November 2020. During the back conditions examination, the VA examiner diagnosed lumbosacral strain and ankylosing spondylitis. The condition progressed/worsened since onset. Her symptoms included tightness with occasional spasms worsening with overuse and strenuous activity. She reported flare-ups described as "if I work out too much the pain and tightness get worse, and I have spasms; also standing or sitting in the same position can cause a flare as well." On examination, range of motion was abnormal or outside of normal range. There was evidence of muscle spasm. Regarding functional impact, the examiner remarked that the Veteran's thoracolumbar spine (back) condition did not impact her ability to perform occupational tasks. During the neck conditions examination, the examiner stated the Veteran did not have a diagnosed cervical spine (neck) condition. The Veteran reported chronic neck pain. The condition had progressed/worsened since onset. She reported flare-ups. On examination, range of motion was normal. Regarding functional impact, the examiner remarked the Veteran's cervical spine (neck) condition did not impact her ability to perform occupational tasks. During the headaches examination, the Veteran reported onset of a headache with strenuous activities. The examiner diagnosed tension headaches with associated symptoms of pain on both sides of the head, nausea, sensitivity to light, sensitivity to sound, and changes in vision. Typical head pain was noted to be constant, lasting 1 to 2 days, located on both sides of the head. Characteristic prostrating attacks of migraine/non-migraine head pain were found to occur greater than once per month. Regarding functional impact, the examiner remarked the Veteran's headache condition did not impact her ability to perform occupational tasks. The Veteran submitted to several VA examinations in September 2021. During the back conditions examination, the VA examiner diagnosed lumbosacral strain and ankylosing spondylitis. The Veteran reported flare-ups, to a moderate level of severity. The flare-ups were precipitated by overuse, physical activity, and alleviated by rest and stretching. On examination, range of motion was abnormal or outside of normal range. There was evidence of pain on active and passive range of motion. Regarding functional impact, the examiner remarked that the Veteran's thoracolumbar spine (back) condition did not impact her ability to perform occupational tasks. During the neck conditions examination, the examiner diagnosed cervical strain. The Veteran reported flare-ups, to a moderate level of severity. The flare-ups were precipitated by physical exertion and alleviated by rest and over the counter medication. On examination, range of motion was abnormal or outside of normal range. There was evidence of pain on active and passive range of motion. There was evidence of localized tenderness. Regarding functional impact, the examiner remarked the Veteran's cervical spine (neck) condition did not impact her ability to perform occupational tasks. During the headaches conditions examination, the examiner diagnosed tension headaches with associated symptoms of pain localized to one side of the head worsening with physical activity, nausea, sensitivity to light, and sensitivity to sound. Typical head pain was noted to be constant, lasting 1 to 2 days. The examiner indicated that the Veteran did not have characteristic prostrating attacks of migraine/non-migraine headache pain. Regarding functional impact, the examiner remarked the Veteran's headache condition impacted her ability to perform occupational tasks. The Veteran reported she cannot work if she has a headache; she must "get into the dark and rest." The Veteran submitted to VA examinations in December 2021. During the neck conditions examination, the examiner diagnosed cervical strain and cervical spine vertebral subluxation. The Veteran reported the condition progressed/worsened since onset. She reported flare-ups, to a moderate level of severity. The flare-ups were precipitated by activity requiring rapid rotation of her neck and alleviated by stretching, rest and exercises. She reported functional loss or functional impairment. On examination, range of motion was abnormal or outside of normal range. There was evidence of pain on active and passive range of motion. There was evidence of localized tenderness. There was evidence of muscle spasm. Increased pain caused interference with sitting and less movement than normal. Regarding functional impact, the examiner remarked the Veteran's cervical spine (neck) condition impacted her ability to perform occupational tasks. Occupations that required prolonged episodes of cervical neck extension or rotation, to either the left or the right, from a fixed, sitting or standing position would be difficult. During the headaches examination, the Veteran reported headaches, occurring twenty days a month. The examiner diagnosed tension headaches with associated symptoms of pulsating or throbbing head pain, pain on both sides of the head, pain worsens with physical activity, nausea, sensitivity to light, sensitivity to sound, and changes in vision. Typical head pain was noted to last less than 1 day, located on both sides of the head. Characteristic prostrating attacks of migraine/non-migraine headache pain were found. Regarding functional impact, the examiner remarked the Veteran's headache condition impacted her ability to perform occupational tasks. Regarding functional impact, the examiner remarked the Veteran's headache condition impacted her ability to perform occupational tasks. Working on occupational tasks that would require prolonged episodes of sitting, driving, or prolonged viewing of a computer screen would be difficult for the Veteran to be successful. A VA Acceptable Clinical Evidence (ACE) examination based on review of available records in conjunction with an interview with the Veteran was obtained in June 2022. The Veteran reported daily headaches, varying in severity. The examiner diagnosed tension headaches with associated symptoms of pain on both sides of the head, sensitivity to light, sensitivity to sound, changes in vision, and occasional dizziness. Typical head pain was noted to be constant, lasting 1 to 2 days, located on both sides of the head. Characteristic prostrating attacks of migraine/non-migraine head pain were found. Regarding functional impact, the examiner remarked the Veteran's headache condition impacted her ability to perform occupational tasks. The Veteran reported that when she was working, she would miss work 1 to 2 times a month due to headaches. In her August 2022 correspondence, the Veteran stated she gets headaches frequently; once a month, the headaches are so bad that she cannot function. In December 2025, the Veteran's representative submitted a response to the November 2025 Supplemental Statement of the Case. The representative stated that although VA determined the cumulative evidence did not support that the Veteran's disabilities would have precluded all forms of gainful activity, VA's conclusion contradicted the evidence of record. During the December 2021 VA examination, the examiner noted the Veteran experiences 20 headaches per month and that working on occupational tasks though would require prolonged episodes of sitting, driving, or prolonged viewing of a computer screen would be difficult for the Veteran to be successful. "Combine that with the aggregate effects of her back [disability], that includes flare-ups from prolonged sitting and standing, neck [disability], and tinnitus, where it makes it difficult for her to concentrate and focus, there does not appear to be any evidence on record that shows she would be able to maintain gainful employment, even sedentary employment as her service connected disabilities prevent her from sitting, moving around too much, carrying heavier objects, concentrating in the quiet, driving, looking at a computer screen, and working at all when she experiences a migraine, which happens about 20 days per month." See December 2025 Correspondence. After reviewing the lay and medical evidence, and after affording the Veteran the benefit of the doubt, the Board finds the Veteran's service-connected lumbar sprain with ankylosing spondylitis, cervical spine strain, and tension headaches, given her education, training, and experience, would preclude her from obtaining or retaining substantially gainful employment. The record includes multiple statements from VA examiners regarding the functional impact of the Veteran's service-connected disabilities indicating that the Veteran has no restriction for occupational tasks. The Board notes, however, that each of these statements relates to a single physical service-connected disability, rather than a combination of the Veteran's service-connected disabilities. As such the statements are given little probative value. The Board affords significant probative value to the Veteran's lay statements and the VA examinations regarding the limitations caused by her service-connected disabilities. The Veteran's lumbar sprain with ankylosing spondylitis and cervical spine strain impairs her ability to lift, carry, sit, stand, walk, climb, and stoop, due to chronic pain and flare-ups. Furthermore, the Veteran's tension headaches result in decreased endurance to attention, decreased quality of work output, and impairment of concentration. Thus, the evidence indicates that her symptoms would significantly interfere with her ability to work as a human resources specialist, material handler, or postal clerk. Based on the foregoing, and resolving all reasonable doubt in the Veteran's favor, the Board finds the Veteran is not capable of substantially gainful work due to her service-connected lumbar sprain with ankylosing spondylitis, cervical spine strain, and tension headaches. Accordingly, entitlement to a TDIU on an extraschedular basis prior to August 30, 2022, is granted. Rebecca N. Poulson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Grace A. Johnk, 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.