Citation Nr: 1311937 Decision Date: 04/10/13 Archive Date: 04/19/13 DOCKET NO. 06-00 770 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to an increased disability rating for service-connected post lumbar puncture headache disorder, rated as 10 percent disabling from October 23, 2002, to September 9, 2010, and as 30 percent disabling from September 10, 2010. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Whitehead, Counsel INTRODUCTION The veteran served on active duty from November 1987 to October 1994. This matter is before the Board of Veterans' Appeal (Board) on appeal from a September 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Veteran testified during a hearing conducted at the RO by a Decision Review Officer (DRO hearing) in January 2006. A transcript of the hearing has been associated with the claims file. The Veteran also testified before the undersigned Veterans Law Judge at a hearing conducted at the RO in June 2009. A transcript of this hearing is of record. The Board observes that the Veteran received a letter from the Board dated in January 2011 that informed him that the Veterans Law Judge who conducted his hearing in June 2009 was no longer employed by the Board. The letter notified the Veteran that he was entitled to have another hearing to be conducted by another Veterans Law Judge. This letter, unfortunately, included incorrect information. Regarding this, the Veterans Law Judge who conducted the June 2009 hearing is in fact currently employed by the Board and is the signatory of this decision. Though the Veteran in February 2011 indicated his desire to be afforded another hearing with a Veterans Law Judge different than the one who conducted the June 2009 hearing (the undersigned), since the notice he was provided in January 2011 was incorrect, such a hearing will not be afforded the Veteran. The Board regrets any confusion the January 2011 may have created. The Board remanded the case in November 2009 for further development by the RO. In a November 2010 rating decision, the RO assigned a 30 percent rating for the Veteran's post lumbar puncture headache disorder (headaches disability), effective from September 10, 2010. On a claim for an increased rating, a veteran will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). Since the rating assigned in the November 2010 rating action does not constitute a full grant of the benefit sought throughout the entire appeal period, and since the Veteran did not withdraw his claim of entitlement to a higher rating, the issue remains before the Board for appellate review. In January 2012, the Board remanded the claim to the RO via the Appeals Management Center (AMC) for development and adjudicative action. The AMC continued the denial of the claim in a December 2012 supplemental statement of the case (SSOC). The case has now been returned to the Board for appellate review. In the January 2012 remand, the Board also remanded claims for entitlement to service connection for a cervical spine disorder and a lumbar spine disorder. In a December 2012 rating decision, the VA Appeals Management Center (AMC) granted the Veteran's claims of entitlement to service connection for degenerative disease of both the cervical and lumbar spine. As for both disabilities, initial 10 percent disability ratings were assigned effective from October 23, 2003, and 20 percent ratings were assigned effective from May 3, 2012. The time period during which to file a Notice of Disagreement as to the disability ratings assigned has not yet expired, and the Veteran has not disagreed with the assigned evaluations or effective dates. Therefore, that matter of service connection for cervical and lumbar spine disorders has been resolved, and these claims are not in appellate status. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained. 2. The evidence of record indicates that the Veteran's headaches disability is more closely approximated by characteristic prostrating attacks occurring on an average of once a month over the last several months; however, the evidence of record does not indicate that his disability is better characterized by prolonged, completely prostrating headaches, productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for a 30 percent disability rating, but no higher, for headaches from October 23, 2002, have been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. § 4.7, 4.40, 4.45, 4.124a, Diagnostic Code 8100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duty to Notify and Assist Before addressing the merits of the claim, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. VA's duty to notify has been satisfied. The Veteran was notified via letters dated in January 2004 and March 2006, and in a November 2010 SSOC of the information required to substantiate his claim and of his and VA's respective duties for obtaining evidence. The March 2006 letter informed the Veteran of how VA determined disability ratings and effective dates. See Dingess v. Hartman, 19 Vet. App. 473, 490-491 (2006) aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). He was also provided with information regarding the rating criteria for the diagnostic codes relevant to his disability in the November 2010 SSOC. Although the March 2006 notice letter and November 2010 SSOC were provided after the initial adjudication of his claim in September 2004, the claim was readjudicated with the most recent occurring in the December 2012 SSOC. Nothing more is required. VA also has a duty to assist a Veteran in the development of his claim. This duty includes assisting him in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO has obtained available service treatment records and identified VA and private treatment records. The Veteran also submitted written statements discussing his contentions. During the course of the appeal, the Veteran submitted a February 2010 letter from private physician Dr. M.H.S. who indicated that he treated the Veteran for headaches for the "last year and a half." As directed by the January 2012 Remand, the RO requested that the Veteran sign and return an enclosed authorization form so that VA could request the treatment records from Dr. M.H.S. However, the Veteran did not respond to the letter by submitting the release form for his private physician. While VA has a duty to assist veterans in obtaining information, there is a corresponding duty on the part of the veteran to cooperate with VA in developing a claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that "[t]he duty to assist is not always a one-way street"). Accordingly, the Board finds that a remand to secure any additional records is not required. Therefore, the Board finds that the agency of original jurisdiction has substantially complied with the prior remand directives such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West,13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Veteran was also afforded VA examinations with respect to his claim. The Board finds the VA examination reports to be thorough and adequate upon which to base a decision with regard to the Veteran's claim. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his service-connected disability under the applicable rating criteria. All questions necessary to render the determinations made herein thus were answered. The examinations accordingly are adequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (defining adequacy with respect to medical examinations and opinions as those providing sufficient detail so that the Board can perform a fully informed evaluation). In a February 2013 post-remand brief, the Veteran's representative raised the assertion that a new examination was needed with respect to the Veteran's headaches disability, as the most recent evidence received by VA addressed unrelated conditions. However, the Veteran has not submitted any lay statements or other evidence indicating that his headache symptoms have increased in severity since the most recent September 2010 VA examination. Thus, the Board finds that the medical evidence of record is adequate for rating purposes. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F3d. 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio, 16 Vet. App. at 183. Legal Criteria for Increased Disability Ratings Disability evaluations are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. Separate Diagnostic Codes identify various disabilities and the criteria for specific ratings for the disabilities. The percentage ratings represent as far as practicably can be determined the average impairment in earning capacity due to a service-connected disability. 38 U.S.C.A. § 1155. The evaluation assigned is determined by comparing the extent to which a Veteran's service-connected disability impairs his ability to function under the ordinary conditions of daily life, as demonstrated by the Veteran's symptomatology, with the schedule of ratings. Id.; 38 C.F.R. § 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If two evaluations are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The Secretary shall give the benefit of the doubt to the Veteran when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Although all the evidence has been reviewed, only the most salient and relevant evidence is set forth below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record, but does not have to discuss each piece of evidence). Factual Background and Analysis The Veteran claims that his headaches disability is more severe than what is reflected by the currently assigned 10 percent and 30 percent disability ratings. The claims file reflects that the Veteran was granted service connection for post lumbar puncture headaches in a October 1995 rating decision, and assigned an initial 10 percent rating. In October 2003, the Veteran filed the claim for an increased rating for headaches currently on appeal. As noted above, in a November 2010 rating decision, the RO assigned a 30 percent rating for this disability, effective from September 10, 2010. Throughout the pendency of the appeal, the Veteran's headaches disability has been rated under Diagnostic Code 8199-8100. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. Diagnostic Code 8199 represents an unlisted disability requiring rating by analogy to one of the disorders listed under 38 C.F.R. § 4.124a. See 38 C.F.R. § 4.27. Diagnostic Code 8100 is the only Code section to address headaches. Under Diagnostic Code 8100, a 10 percent disability rating is warranted for characteristic prostrating attacks, averaging one in 2 months over the last several months. A 30 percent disability rating is assigned for migraine headaches with characteristic prostrating attacks occurring on an average of once a month over the last several months. A 50 percent rating is assigned for migraine with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a. VA regulations, including the rating criteria, do not define "prostrating" as used in Diagnostic Code 8100. The Board notes that according to WEBSTER'S NEW WORLD DICTIONARY OF AMERICAN ENGLISH, Third College Edition (1986), p. 1080, "prostration" is defined as "utter physical exhaustion or helplessness." A similar definition is found in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th ed. 1994) in which "prostration" is defined as "extreme exhaustion or powerlessness." Because headaches involve the symptom of head pain, the Board concludes that lay evidence is competent to describe the frequency, severity, and duration of headaches, including whether they are severe enough to cause prostration and whether they are frequent, severe, and prolonged enough to result in severe economic inadaptability. Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting that lay evidence is competent with regard to facts perceived through the use of the five senses); Jandreau v. Nicholson, 492 F.3d 1372, 1377 Note 4 (Fed. Cir. 2007) (holding that sometimes a layperson will be competent to identify a medical condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer, and remanding to the Court to remand to the Board to decide whether lay evidence was competent and sufficient to establish a shoulder dislocation); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding veteran competent to testify to ringing in the ears (tinnitus) which is capable of lay observation); Barr v. Nicholson, 21 Vet. App. 303, 308-09 (lay testimony is competent to establish the presence of varicose veins); cf. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). Therefore, the Board finds that the Veteran's statements about his headache symptoms constitute competent evidence for rating purposes. In this case, the Board finds that the Veteran's statements about the frequency and the intensity of his headaches are also credible. Concerning this, the Board notes that "definitions of credibility do not necessarily confine that concept to the narrow peg of truthfulness. It has been termed as 'the quality or power of inspiring belief. . . .' Credibility . . . apprehends the over-all evaluation of testimony in the light of its rationality or internal consistency and the manner in which it hangs together with other evidence." Indiana Metal Prods. v. NLRB, 442 F.2d 46, 51-52 (7th Cir. 1971) (citations omitted). The Veteran's statements inspire belief in this case because he has not provided any conflicting statements, although his statements do show that the frequency and severity of his symptoms varied to some extent over the years since he filed his claim for an increased rating. For example, VA treatment records, discussed further below, show periods of decreased frequency and severity of his headaches, but also include his reports of experiencing continuous headaches on a daily basis. In regards to the frequency and severity of his headaches, a June 2002 VA treatment record reflects the Veteran's report of experiencing chronic headaches. He reported having constant headaches for two days involving the occipital region. His headaches were not associated with fever, chills, or photophobia. The physical examination was unremarkable, and the Veteran was prescribed pain medication. A November 2003 private treatment record shows the Veteran's report of experiencing headaches that occurred almost daily. He used pain medication to treat his symptoms. The Veteran headaches were at times severe, lasted for four to five days, but were not associated with nausea or vomiting. Following a clinical examination, the private examiner noted that the Veteran might have a chronic daily headache given his history of meningitis. A January 2004 private examination report documents the Veteran's report of constant headaches that waxed and waned. He described his pain as aching, severe, sharp, tight, tense, and unbearable at times. The Veteran's pain was aggravated by bending in any direction, tension, bright lights, and loud noises. He also complained of difficulty sleeping due to his headaches. The clinical evaluation revealed a diagnosis of chronic headaches with a history of aseptic meningitis. The private examiner commented that there appeared to be a functional overlay to the Veteran's problems. A February 2004 VA nose, sinus, larynx, and pharynx examination report includes the Veteran's report of having daily headaches ever since an in-service lumbar puncture procedure. He described his baseline headache as being retro-orbital and occipital, very severe, and of a "gnawing" sensation. He stated that when his headaches were exacerbated he felt as if the top of his head was "coming off." The Veteran reported that he used morphine sulfate twice daily, which diminished but did not completely alleviate his headaches. The clinical examination revealed a diagnosis of chronic headaches, status post recurrent aseptic meningitis. The Veteran reiterated his report of experiencing chronic headaches during a March 2004 VA neurology examination. He essentially reported that his headaches have never really gone away despite treatment. The examiner noted that the Veteran's headaches fluctuated in severity and were worse in the winter. His symptoms were treated with the use of pain medication two to three times per day and the occasional use of a TENS unit. This treatment was reportedly adequate for the Veteran to work full time and to attend school at night. The examiner suspected that there was underlying depressive symptomatology that may account for a substantial amount of the Veteran's symptomatology. The examiner opined that despite this, the Veteran was functioning on a relatively normal basis. During the January 2006 DRO hearing, the Veteran testified that his headaches were manageable when he was on his medication, but were otherwise excruciating. He essentially stated that with the use of medication his headaches were noticeable but not debilitating. He testified that he could manage to do work or tasks that had to be done, but he was unable to do anything beyond that point. His headache pain was described as constants and occurring daily. A June 2007 private examination report documents the Veteran's report of experiencing constant, daily headaches. His headaches were described as continuous, and he was noted to have had a headache every day during the previous month. Treatment for his headaches included injections of the head, trigger point injections, chiropractic manipulation, epidural injections, acupuncture, neck traction, and pain medications. An April 2008 VA treatment record shows that the Veteran continued to have chronic headaches, but he was under pain management and was relatively comfortable. A January 2009 private treatment record reflects the Veteran's report that his headaches were less frequent and less severe. This record shows a diagnosis of chronic daily headaches. The Veteran underwent an additional VA examination in February 2009 to assess the severity of his headaches. He reported having constant, daily headaches, for which he used pain medications. Reportedly, the Veteran's headaches prevented him from participating in sports and had a moderate to severe effect on his ability to perform chores, exercise, engage in recreation, and travel. He worked full time and reported lost approximately four weeks from work in the previous twelve months due to headache, neck, and back pain. The examiner also noted that the Veteran had missed approximately one month from work during the past year due to headaches. The clinical examination revealed a diagnosis of chronic post lumbar puncture headaches. The Veteran provided further testimony regarding his headaches during the June 2009 hearing before the Board. He described having constant headaches on a daily basis. He also stated that during a headaches episode he experienced irritability, and nausea, was unable to engage with his children, and had to stay in a quiet, dark environment. Due to his headaches, the Veteran reportedly had difficulty performing his duties at work, was at times tardy, and had used more sick leave than what he had actually earned. As directed by the November 2009 remand, the Veteran underwent an additional VA examination on September 10, 2010 to assess his headaches disability. He reiterated his report of having chronic, daily headaches, which he described as a constant, pounding pain. The headaches involved the cranium diffusely. The Veteran reported a worsening of his headaches towards the end of the day, but he also noted that his headaches increased with stress. Additional symptoms included photophobia, phonophobia, and nausea. Reportedly, lying down in a quiet, dark room with his eyes closed improved his headaches. The examiner noted the Veteran's use of pain medication and a muscle relaxant. The Veteran stated that he was employed as a medical technician, but he had to reduce his work hours from 40 hours to 32 hours a week due to his headaches. He also stated that he had been reprimanded due to frequently spending all day in bed. Following the examination, the examiner provided a diagnosis of migraine headaches with prostrating attacks, considered to be occurring at the equivalent of approximately once a month over the past several months. In light of the evidence of record, and resolving all doubt in the Veteran's favor, the Board finds that entitlement to a 30 percent disability rating for migraine headaches is warranted for the entire time period on appeal. The Veteran has consistently reported in his numerous statements, during his VA and private outpatient treatment, during the January 2006 DRO and June 2009 Board hearings, and during his VA examinations that his headaches are continuous, occur daily, and are sometimes associated with nausea, irritability, sensitivity to light and noise, and a decreased ability to participate in some daily activities. Although his headaches appear to fluctuate in severity, the medical and lay evidence indicate that the Veteran requires the use of daily medication to diminish his pain to a functional level. Moreover, the Board highlights that although the RO assigned a 30 percent rating from September 10, 2010, the date of the most recent VA examination, the September 2010 VA examiner opined that the Veteran's headaches were manifested by prostrating attacks occurring about once a month over the last several months. Thus, the examiner's opinion indicates that he actually experienced monthly prostrating attacks prior to the date of the examination. While the September 2010 examiner did not specify as to how long the Veteran had experienced prostrating attacks of this frequency, the Board resolves this issue in favor of the Veteran in light of the Veteran's competent and credible lay statements regarding the frequency and severity of his headaches throughout the pendency of the appeal. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting that lay evidence is competent with regard to facts perceived through the use of the five senses). As such, the Board finds that the Veteran satisfies the 30 percent disability rating criteria in that his headaches disability more closely approximates symptoms characterized by prostrating attacks occurring on an average of once a month over the last several months. However, the Board finds that the highest 50 percent disability rating is not warranted for the Veteran's headaches at any time during the pendency of the appeal. The Board acknowledges the Veteran's reports of experiencing constant headaches. Yet they are not shown to be frequently prolonged, completely prostrating, and productive of severe economic inadaptability. Indeed, the Veteran testified that with the use of medication, he is generally able to perform his duties at work and "necessary" activities of daily living. Although the Veteran reported having missed days from work due in part to his headaches and to have decreased his hours at work, there is no objective evidence of record that the Veteran's disability is productive of severe economic inadaptability. The Board notes that some interference with employment is contemplated by a 30 percent disability rating. As such, the evidence shows that the Veteran's headaches disability picture more nearly approximates an evaluation of 30 percent rather than a 50 percent. In reaching the above determination, the Board has also considered whether a referral for extra-schedular rating is warranted for the Veteran's service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule; therefore, the assigned schedular evaluation is adequate, and no referral is required. See VAOPGCPREC 6-96; see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) (a threshold finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate is required for extra-schedular consideration referral). The schedular evaluation for the Veteran's headaches disability is adequate, despite the Veteran's disagreement with the disability rating. In other words, he does not have any symptoms from his service-connected disorder that are unusual or are different from those contemplated by the schedular criteria. The Veteran does not have an "exceptional or unusual" disability; he merely disagrees with the assigned evaluation for his level of impairment. The available schedular evaluation for this service-connected disability is adequate. Thus, referral for extra-schedular consideration is not warranted. See VAOPGCPREC 6-96. Further inquiry into extra-schedular consideration is moot. See Thun, 22 Vet. App. at 115. In summary, a 30 percent rating, but no higher, is warranted for the Veteran's headaches disability throughout the entire pendency of the appeal. As there appears to be no identifiable period on appeal during which this disability manifested symptoms meriting a disability rating in excess of the 30 percent disability rating assigned and upheld herein, staged ratings are not warranted. See Hart, 21 Vet. App. 505 (2007). Lastly, the Board observes that, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims held that a claim for total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is part of an increased rating claim when such claim is raised by the record. Throughout the pendency of the appeal, the Veteran has reported that that he is employed full time. He has not claimed, nor does the evidence suggest, that he is unable to secure and maintain gainful employment due to the claimed service-connected disability. Therefore, the question of entitlement to a TDIU has not been raised. Id. at 447; Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). ORDER A 30 percent rating, but no higher, for post lumbar puncture headaches from October 23, 2002, is granted. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs