Citation Nr: 1802425	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  17-49 947	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement to service connection for headaches.

2.  Entitlement to an evaluation in excess of 70 percent for post-traumatic stress disorder (PTSD).

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


REPRESENTATION

Appellant represented by:	Gregory Rada, Attorney


ATTORNEY FOR THE BOARD

H. Fisher, Associate Counsel

INTRODUCTION

The Veteran had honorable active duty service with the United States Army from February 2008 to July 2008 and January 2011 to December 2011, with service in Southwest Asia.

These matters are before the Board of Veterans' Appeals (Board) on appeal from November 2015 and August 2017 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.  The Veteran timely perfected her appeal to the Board.

In a December 2017 pre-conference conference (PHC), the Veteran's representative agreed to withdraw the request for a hearing on these issues before the Board if the undersigned found evidence warranting entitlement to TDIU based on a review of the record, which has been found based on the evidence of record.  The Veteran's representative additionally agreed to withdraw the Veteran's claim of entitlement to an evaluation in excess of 70 percent for PTSD in the case of a grant of service connection for headaches, which has also been found based on the evidence of record.


FINDINGS OF FACT

1.  In December 2017, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran's representative that she wanted to withdraw her claim regarding the issue of entitlement to an evaluation in excess of 70 percent for PTSD.

2.  Resolving doubt in favor of the Veteran, the Veteran's headaches were incurred in or otherwise related to active duty service.

3.  The Veteran's service-connected disabilities are shown to preclude obtaining and retaining substantially gainful employment.

CONCLUSIONS OF LAW

1.  The criteria for withdrawal have been met, and the appeal regarding the issue of entitlement to an evaluation in excess of 70 percent for PTSD is dismissed.  38 U.S.C.A. § 7105 (b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2017).

2.  The criteria for service connection for migraine headaches have been met.  38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303, 3.307, 3.309 (2017).

3.  The criteria for entitlement to TDIU have been met.  38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. § 4.16 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Withdrawal

Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific errors of fact or law in the determination being appealed.  A Substantive Appeal may be withdrawn on record at a hearing or in writing at any time before the Board promulgates a decision.  38 C.F.R. § 20.204.  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.

In December 2017, the Veteran's representative stated that they were withdrawing the appeal regarding the issue of entitlement to an evaluation in excess of 70 percent for PTSD.  As such, there remain no allegations of errors of fact or law for appellate consideration on these issues.  Accordingly, the Board does not have jurisdiction to review the appeal of this matter, and it is dismissed.

Service Connection

Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131 (West 2014).  Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

Certain chronic diseases, including organic diseases of the nervous system, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2017).  Migraine headaches are considered to be an organic disease of the nervous system.  See M21-1, Part IV.ii.2.B.2.b.

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a).  Migraine headaches are a qualifying chronic disease.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  As a result, service connection via the demonstration of continuity of symptomatology is applicable in the present case.

The Veteran's service treatment records reflect reports of headaches in April 2008 and December 2010.  The Veteran's post-service treatment records reflect ongoing treatment for chronic headaches.  In June 2012, the Veteran reported severe headaches daily that had been occurring for the previous 6 months.  The physician assessed her with post-trauma headaches but did not elaborate on the etiology.  The Veteran submitted two lay statements in September 2015 from friends who each stated that she suffered from migraine headaches since discharge from active duty.  The Veteran also submitted a lay statement in October 2015 attesting to daily headaches that began in service and continued since discharge from active duty.

While the Board acknowledges that the August 2017 VA examination reached another conclusion regarding the etiology of the Veteran's migraine headaches, the Board finds the Veteran's treatment records and lay reports of ongoing symptomatology more probative on the matter.  The Veteran reported symptoms consistent with migraine headaches while in service, which is corroborated by her service treatment records.  She reported continuing to experience the same symptoms after discharge from active duty, which was also confirmed by post-service treatment records.  The August 2017 VA examination report did not address these reports sufficiently, and did not provide a thorough rationale to support its conclusions.

Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds that the lay and medical evidence of record, summarized above, collectively demonstrates that the Veteran's headaches had their onset in service, and service connection is warranted under the provisions of 38 C.F.R. § 3.303(b) and Walker, 708 F.3d at 1338-40.  The Veteran's appeal is granted as to that issue.

TDIU

The Veteran asserts that she is unemployable due to her service-connected disabilities.  After a thorough review of the evidence, the Board finds that the Veteran is entitled to TDIU.

Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. § 3.340 (2017).  Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is 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, the disability shall be ratable at 60 percent or more.  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).  If the schedular rating is less than 100 percent, the issue of unemployability must be determined without regard to the advancing age of the veteran.  38 C.F.R. §§ 3.341(a), 4.19 (2017).  Factors to be considered are the veteran's education, employment history and vocational attainment.  Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991).

Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled.  "While the term 'substantially gainful occupation' may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent."  Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).

A TDIU claim "presupposes that the rating for the [service-connected] condition is less than 100 percent, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider."  Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994).

The Veteran's current total combined rating for service-connected disabilities is 70 percent.  The Veteran is presently service connected for PTSD (70 percent), status-post umbilical herniorrhaphy (noncompensable), and a scar status-post umbilical herniorrhaphy (noncompensable).  The Veteran is now also service-connected for headaches, but the evaluation has not been determined.

The Veteran completed high school prior to active duty service, and attempted to attend collegiate courses through reserve duty, but was forced to medically withdraw due to symptoms associated with her PTSD and severe migraines.

In a November 2017 vocational assessment, a private psychologist determined that the Veteran's service-connected PTSD resulted in an inability to attend to basic work functions and resulted in her being unable to maintain a substantially gainful occupation.  The psychologist cited difficulties with maintaining steady employment, earning a college degree, family relations, judgment and thinking due to severe and persistent PTSD.  Taken together, these deficiencies have impaired her ability to function independently, appropriately and effectively.  The psychologist noted that the Veteran neglected her personal appearance and hygiene, and her PTSD made it difficult to adapt to stressful circumstances or establish and maintain effective relationships.  The Veteran was determined to be unemployable even in "low stress" occupations due to the severity of her symptoms, as she could not effectively communicate with others, remember and follow instructions, use good judgment, and adapt to changes in dealing with people.

While the Board recognizes that there is evidence of record indicating that the Veteran may be capable of sedentary or low-stress work, the Board finds the thorough vocational assessment from the private psychologist more probative on the issue of employability.  Resolving all reasonable doubt in favor of the Veteran, the severity of her PTSD has rendered her unable to obtain and maintain substantially gainful employment.  Accordingly, an award of TDIU is appropriate. 
	
ORDER

Entitlement to service connection for headaches is granted.

Entitlement to an evaluation in excess of 70 percent for PTSD is dismissed.

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


JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs