Citation Nr: 1547219	
Decision Date: 11/09/15    Archive Date: 11/13/15

DOCKET NO.  08-26 161A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUES

1.  Entitlement to a compensable disability evaluation for tension headaches.

2.  Whether new and material evidence has been received to reopen a claim for service connection for a stomach condition, and, if so, whether service connection is warranted, to include as secondary to a service-connected disability.

3.  Entitlement to service connection for residuals of a head injury with blurry vision.

4.  Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU).


ATTORNEY FOR THE BOARD

Jonathan Tracy, Associate Counsel



INTRODUCTION

The Veteran served on active duty from February 1983 to February 1986.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from September 2007, March 2008, June 2009, and December 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin.

In reviewing the Veterans Appeals Control and Locator System (VACOLS), it appears that the issue of entitlement to service connection for residuals of a head injury with blurry vision has not been certified to the Board; however, a December 2014 VA Form 8, Certification of Appeal, indicates the issue was certified to the Board.  Thus, the Board will address the issue herein. 

The Veteran requested a hearing before the Board.  However, the Veteran is incarcerated and refused to agree to a hearing conducted in prison with others present and refused to sign a privacy release.  Therefore, the Veteran's request for a hearing is considered waived.


FINDINGS OF FACT

1.  The most probative evidence of record does not reflect that the Veteran has migraine headaches with characteristic prostrating attacks averaging one in 2 months over the last several months.

2.  In an October 1991 rating decision, the RO denied service connection for a stomach condition.  The Veteran did not appeal that decision and it is therefore final.

3.  The evidence added to the record since the last final decision in October 1991 is cumulative of the evidence previously considered, does not contribute to a more complete picture of the Veteran's claim for service connection for a stomach condition, and does not create a reasonable possibility of an allowance of the claim.

4.  Residuals of a head injury with blurry vision is not shown to be causally or etiologically related to any disease, injury, or incident during active service.

5.  The Veteran's service-connected disability does not preclude substantially gainful employment.



CONCLUSIONS OF LAW

1.  The criteria for a compensable disability evaluation for tension headaches have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R.§§ 3.321, 4.3, 4.7, 4.14, 4.124a, Diagnostic Code 8199-8100 (2015).

2.  The October 1991 rating decision that denied the claim for service connection for a stomach condition is final.  38 U.S.C.A. § 7105 (West 2014); 38. C.F.R. § 20.1100, 20.1103 (2015).

3.  New and material evidence has not been received to reopen the claim for service connection for a stomach condition.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2015).

4.  The criteria for service connection for residuals of a head injury with blurry injury have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2015).

5.  The criteria for an award of TDIU have not been met.  38 U.S.C.A. § 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2015).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has thoroughly reviewed all the evidence in the Veteran's claims folder.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000).

I.  VA's Duties to Notify and Assist

VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006).

Proper notice was provided in March 2007, November 2007, May 2009, and October 2011.

With regard to the duty to assist, the claims file includes the Veteran's service treatment records (STR), post-service treatment records, and the Veteran's statements in support of the claim.  The Veteran has not identified any additional, outstanding records that he wishes to be considered in his appeal.  The Board has also reviewed the Veteran's paperless Virtual VA and VBMS claims files.

The RO provided the Veteran a VA examination in August 2007 to assess his headaches.  This examination was adequate because it was based on a thorough examination, a description of the Veteran's pertinent medical history, a review of the medical records and appropriate diagnostic tests.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

VA is not required to obtain a medical opinion for a claimant seeking to reopen a previously and finally disallowed claim prior to a determination that new and material evidence has been received.  38 C.F.R. § 3.159(c)(4)(iii).  Thus, any question as to the adequacy of a VA examination is moot prior to reopening of the claim for service connection for a stomach condition.  Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).

No VA examination has been secured in connection with the service connection claims for the residuals of a head injury with blurry vision because examinations are only necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains: (1) competent evidence of diagnosed disability or symptoms of disability; (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period; and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability.  38 C.F.R. § 3.159(c)(4); see McLendon v. Nicholson, 20 Vet. App. 79 (2006).  As described in detail below, there is insufficient evidence establishing that the Veteran has residuals to a head injury related to service.  No examination is necessary in such situations.

Hence, no further notice or assistance to the appellant is required.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

II.  Higher Evaluations and Rating Criteria For Tension Headaches

Disability evaluations are determined by comparing a Veteran's present symptomatology with the criteria set forth in the Schedule for Rating Disabilities, which is based on average impairment in earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  Any reasonable doubt regarding the degree of disability will be resolved in favor of the appellant.  38 C.F.R. § 4.3.

Where an increase in the disability rating is at issue, the present level of the Veteran's disability is the primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Veteran's tension headaches are rated under Diagnostic Code (DC) 8199-8100.  When a particular disability is not listed among the diagnostic codes, a code ending in "99" is used; the first two numbers are selected from the portion of the schedule most approximating a claimant's symptoms.  38 C.F.R. § 4.27.  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen.  38 C.F.R. § 4.27.  The Board will consider all appropriate diagnostic codes.

Under DC 8100, a 10 percent rating is warranted for migraine headaches manifested by characteristic prostrating attacks averaging one in two months over the last several months.  38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100.  A 0 percent, or noncompensable, rating is assigned with less frequent attacks.  Id.  A 30 percent rating is warranted for migraine headaches manifested by characteristic prostrating attacks occurring on an average of once a month over the last several months.  A 50 percent rating is warranted for migraine headaches with very frequent completely prostrating and prolonged attacks, productive of severe economic inadaptability.  Id. 50 percent is the highest rating provided under DC 8100.

The rating criteria do not define "prostrating;" nor has the Court.  Cf. Fenderson v. West, 12 Vet. App. 119 (1999) (in which the Court quotes Diagnostic Code 8100 verbatim but does not specifically address the matter of what is a prostrating attack.).  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."  DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th Ed. 1994), defines "prostration" as "extreme exhaustion or powerlessness."

In applying the above law to the facts of the case, the Board finds that the Veteran is not entitled to a compensable disability rating for his service-connected tension headaches.  Throughout the appeal, the Veteran's headaches have not been manifested by characteristic prostrating attacks averaging one in two months over the last several months.  

The Veteran filed a claim for increased rating in October 1996.  He was afforded a VA examination in October 1997 during which the examiner noted his first impression was that the Veteran was a very poor historian and was unable to give a cogent history of his complaint of headaches.  He described daily headaches on a constant basis and could not remember the last time he was completely headache free.  The headaches were a rather heavy, pounding sensation as opposed to sharp point type pain.  The Veteran reported that the only thing that helps is when he exercises.  The examiner noted that the Veteran did not describe blurry vision or problems with bright lights.  

On physical examination, the examiner noted no areas of point tenderness on the skull or of the muscles of mastication.  The Veteran had normal visual fields and funduscopic examination was normal.  There was no evidence of tenderness over the temporal arteries.  Cranial nerves were all intact.  It was the examiner's impression that the Veteran had a complaint of constant headaches, but they do not follow a specific pattern.  

The Veteran underwent an examination in August 2008.  The examination report notes that review of "prison records and C-file are negative for any specific treatment for prostrating or incapacitating headaches...  The Veteran denies any specific reinjury to his head or new diagnosis of seizure disorder, syncopal episodes or essential tremors.  He currently complains of intermittent headaches that occur on a daily basis rated anywhere from a 5-10 out of 10 lasting 4 to 5 hours.  His pain located over the right temporal area most often associated with mild nausea and photophobia but not always.  He denies any visual disturbances, vomiting,  auras, vertigo or phonophobia.  He states his headaches resolve with lying down...  He denies any problems of dementia like symptoms or memory loss.  [The] Veteran states the ibuprofen will help his headaches but mainly he has to lie down which makes him feel the best.  [The] Veteran states he is not sure what triggers his headaches, denying any problems with eating certain foods, increased emotional/physical stress or exposure to certain odors.  He states his last severe headache was yesterday [and] lasted about 4 hours.  He had to lie down the entire time.  The Veteran describes these as incapacitating, stating that he has to go to bed every time, however his prison medical records are negative for frequent incapacitating headaches being reported."

The examiner also reported that throughout "the interview...[the] Veteran became argumentative as well as not wanting to answer all questions.  At times he became childlike and would inappropriately giggle when asked to do certain tasks throughout the examination..."

At the time of the examination in 2008, the Veteran had been incarcerated for 14 years.  However, the Veteran "denied any interference with [his] ability to work related to his headaches."

Upon physical examination, the examiner reported the following: "Vital signs stable.  Head: normocephalic, atraumatic with no tenderness, masses or hypersensitivity upon palpation.  Neck: supple, no adenopathy or complaints of headache with full range of motion and palpation of the cervical spine.  Neurological: cranial nerves II through XII intact and symmetrical.  There is no TMJ clicking or tenderness with palpation.  Deep tendon reflexes are 2+ and symmetrical with full sensation intact.  No sensory or motor loss.  No fine tremors noted.  When testing for cerebellar dysfunction, Veteran failed to cooperate with heel-to-shin complaining of a painful right knee.  His finger-to-nose and rapid alternating movements were intact and symmetrical.  [The] Veteran has very good muscle tone and bulk...in all four extremities with muscle strength measured 5/5 globally.  Veteran failed to cooperate with assessing bilateral hand strength complaining of finger injuries as a child causing him [to be unable] to make a fist with his right hand.  He reports being left-hand dominant.  It was noted that when the Veteran entered the examination room upon introduction, he did shake my hand with his right hand with a firm normal grip with no evidence of pain or an abnormality.  He has a normal tandem gait with negative Romberg test and normal Babinski response."

In conclusion, the examiner reported that the Veteran has chronic headaches, tension-like, "subjectively reported as having daily incapacitating episodes not supported by his prison medical records."

The Board notes that the claims file contains treatment records from the prison.  However, none of those records indicate treatment for headaches.  In fact, on several occasions, the Veteran has written to VA that he has not been receiving treatment for his headaches while in prison.

In summary, the competent medical evidence does not show that the Veteran has headaches that result in prostrating attacks averaging one in 2 months over the last several months.  Without sufficient evidence of the prostrating attacks, the criteria for a compensable rating for tension headaches have not been met at any point during the pendency of the claim.  Consequently, a compensable rating is not warranted for the service-connected tension headaches.

In deciding the claim, the Board has considered the Veteran's statements and reports of symptoms.  The VA examinations include examiners' comments that the Veteran is an unreliable historian and his complaints are not supported by the evidence of record.  Even assuming the Veteran's statements describing his symptoms are considered to be competent evidence, these statements, however, must be viewed in conjunction with the medical evidence as required by the rating criteria.  King v. Shinseki, 700 F .3d 1339 (Fed.Cir.2012); Layno v. Brown, 6 Vet. App. 465 (1994).  The Veteran is not competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes.  Such competent evidence concerning the nature and extent of the Veteran's headaches has been provided by the medical personnel who examined him during the current appeal and who has rendered pertinent opinions in conjunction with the evaluation.  In pertinent part, both examiners questioned the Veteran's credibility to even accurately describe his symptoms.

In sum, the preponderance of the evidence is against the assignment of a compensable rating for the service-connected tension headaches at any time during the appeal period.  The claim is denied.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Other Considerations

The Board has considered whether extraschedular consideration is warranted.  The discussion above reflects that the Veteran complains that his headaches result in pain; this is the symptom that the rating schedule contemplates.  From the plain language of the disability and the schedular language, it is the prostrating nature of compensable headaches that meet the severity of disability for a compensable rating and the frequency that gives rise to ratings higher than 10 percent along with longer duration and even more severe - completely prostrating - features that allow for the highest rating.  The regular schedular criteria thus contemplate both the symptoms - pain - and the level of disability suffered by the Veteran - less than prostrating attacks.

The Veteran's headaches result in pain.  By definition of the word "headache" and from the rating schedule, this is the symptom that the rating schedule contemplates. From the plain language of the disability and the schedular language, it is the prostrating nature of compensable headaches that meet the severity of disability for a compensable rating and the frequency that gives rise to ratings higher than 10 percent along with longer duration and even more severe - completely prostrating - features that allow for the highest rating.  The regular schedular criteria thus contemplate both the symptoms - pain - and the level of disability suffered by the Veteran - less than prostrating attacks.  The effects of the Veteran's disability have been fully considered and are contemplated in the rating schedule; hence, referral for an extraschedular rating is unnecessary at this time.  Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary.  Thun v. Peake, 22 Vet. App. 111 (2008).

III.  New and Material Evidence

The RO denied the Veteran's claim of entitlement to service connection for a stomach condition in an October 1991 rating decision because there was no evidence linking a stomach condition to service or his service-connected tension headaches.  The Veteran did not appeal that decision and thus that decision is final.  38 U.S.C.A. §§ 7105; 38 C.F.R. § 20.1103.

Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered.  38 U.S.C.A. § 7105.  However, a claim on which there is a final decision may be reopened if new and material evidence is submitted.  38 U.S.C.A. § 5108.

"New" evidence means existing evidence not previously submitted to agency decision-makers.  "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).  When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed.  Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992).

The requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold.  Specifically, the Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening."  See Shade v. Shinseki, 24 Vet. App. 110 (2010).

In order to establish service connection for a claimed disability, there must be evidence of: A present disability; incurrence or aggravation of a disease or injury in service; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

The Veteran claimed that his stomach condition was caused by the medicine he takes for his headaches.  The pertinent evidence of record at the time of the October 1991 rating decision included the Veteran's service treatment records (STRs), post-service treatment records and a VA examination conducted in August 1991.  The examiner diagnosed the Veteran with a mild case gastritis.  However, the claim was denied because the condition was not linked to the medicine the Veteran takes for his headaches.

Evidence received since the May 2011 rating decision includes some prison medical records.  There are no treatment records that establish any link between any stomach condition and the Veteran's service-connected tension headaches.

Evidence received since the May 2011 rating decision also includes contentions by the Veteran.  The Veteran continues to assert that he has a stomach condition related to the medication he takes for his headaches.  The Board finds that these assertions are redundant of the prior contentions that were already considered and rejected by the October 1991 rating decision and August 1991 examiner.  See Reid v. Derwinski, 2 Vet. App. 312, 315 (1992).

In addition, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428 (2011), the specific issue in this case of whether the Veteran has a stomach condition as a result of headaches falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).  Thus, the assertions by the Veteran do not raise a reasonable possibility of substantiating the claim, and are not material within the meaning of 38 C.F.R. § 3.156(a).

In sum, the evidence received raises no reasonable possibility of substantiating the claim for service connection for a stomach condition.  Thus, it is not material within the meaning of 38 C.F.R. § 3.156(a) and the claim is not reopened.

IV.  Service Connection for Residuals of a Head Injury

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).

In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a).

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).  Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).  This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.  38 U.S.C.A. § 5107(b).

The current medical evidence does not demonstrate the Veteran has residuals of a head injury with blurry vision.  There are some treatment records for complaints of headaches and stomach problems, but nothing regarding a head injury.  Therefore, there is no medical evidence demonstrating a current head injury disability, other than the tension headaches which is already service-connected.

Further, the service treatment records (STR) are negative for any complaints, treatment or diagnosis of any head injury or residuals of a head injury.  The Veteran signed a waiver of a separation examination when he separated in 1986; therefore, there is no separation examination report.  

On VA examination in October 1997 in connection with his headaches, the examiner specifically noted the Veteran did not describe having blurry vision. 

The only other evidence in the record concerning the etiology of the Veteran's alleged head injury is the Veteran's own statements.  Lay persons are competent to provide opinions on some medical issues.  Kahana v. Shinseki, 24 Vet. App. 428 (2011).  However, the disability at issue in this case could have multiple possible causes and thus, falls outside the realm of common knowledge of a lay person.  Jandreau, 429 F.3d at 1372.  Thus, the Board finds that the competent evidence of record weighs against the claim for service connection.

In sum, there is no medical evidence of a head injury or the residuals of a head injury during service, or currently.  The Board therefore concludes that the evidence is against a nexus between the Veteran's claimed disability and active duty service.  Accordingly, the Board must conclude that the preponderance of the evidence is against the claim and it is denied.  38 U.S.C.A. § 5107(b).

V.  TDIU

In order to establish entitlement to TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to secure and follow a substantially gainful occupation.  See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16.  VA defined substantially gainful employment as "employment at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the Veteran resides."  See M21-1MR, Part IV, Subpart ii, Chapter 2(F)(24)(c).  In reaching such a determination, 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).  Consideration may be given to the Veteran's level of education, special training, and previous work experience when arriving at this conclusion, but factors such as age or impairment caused by non-service-connected disabilities are not to be considered.  38 C.F.R. §§ 3.341, 4.16, 4.19 (2013); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

Total disability ratings for compensation may be assigned, where the schedular rating is less than 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. 38 C.F.R. § 4.16(a).

It is VA policy, however, to grant TDIU in all cases where a Veteran is unable to work due to service-connected disability.  Rating boards are required to submit to the Director, Compensation and Pension Service (Director), for extraschedular consideration, all cases of Veterans who are unemployable by reason of service-connected disability(ies), but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a) . 38 C.F.R. § 4.16(b).

Where a claimant does not meet the schedular requirements of 38 C.F.R. § 4.16(a), the Board has no authority to assign a total disability evaluation based on individual unemployability under 38 C.F.R. § 4.16(b).  The Board may, however, refer the claim to the Director for extraschedular consideration.  The governing norm for the Board in making the determination is whether there is a plausible basis for concluding that the Veteran is unable to secure and follow a gainful occupation.  Bowling v. Principi, 15 Vet. App. 1 (2001).

During the period on appeal, the Veteran is service-connected for tension headaches.  However, the rating is noncompensable.  Thus, the Veteran does not meet the schedular criteria for an award of TDIU.

Reviewing the claims file, the preponderance of the evidence is against a finding that the Veteran is unable to secure and follow a substantially gainful occupation.

Upon examination in August 2007, the Veteran denied that his headaches interfered with his ability to work.  The Veteran has not submitted any other evidence indicating an inability to obtain substantially gainful employment.  The Board notes that the Veteran has been incarcerated throughout the period of appeal.  Although the Veteran has reported that his condition has kept him from performing work duty is prison, there are no prison medical records supporting this contention.

As the preponderance of the evidence is against a finding that the Veteran's service-connected disabilities render the Veteran unemployable the Board finds it unnecessary to refer this claim to the Director for extraschedular consideration.

The Board acknowledges that the Veteran has tension headaches, but these factors are reflected in the current noncompensable rating.  Van Hoose v. Brown, 4 Vet. App. 361 (1993).  In this case, there is no showing of total individual unemployability based solely on his service-connected disability.  Thus, as the preponderance of the evidence is against a finding that the Veteran is unemployable, entitlement to a TDIU is denied.


ORDER

Entitlement to a compensable evaluation for the service-connected tension headaches is denied.

The claim to reopen the previously denied claim for service connection for a stomach condition is denied.

Entitlement to service connection for residuals of a head injury with blurry vision is denied.

Entitlement to a TDIU is denied.



____________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs