Citation Nr: 1804767 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-03 387 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a total disability rating based on individual unemployability (TDIU). 2. Entitlement to service connection for a bilateral eye disability, to include as secondary to service-connected disabilities. 3. Entitlement to a rating in excess of 10 percent for residuals of traumatic brain injury (TBI), to include whether the reduction from 40 percent to 10 percent, effective March 1, 2013, was proper. 4. Entitlement to a rating in excess of 50 percent for migraine headaches due to TBI. 5. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Odya-Weis, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1976 to December 1977. He died in August 2014. The appellant is the Veteran's daughter and has been substituted as the appellant in his appeal. These matters come before the Board of Veterans' Appeals (Board) on appeal from June 2011, December 2012, and January 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The issue of entitlement to a TDIU is decided herein; the remaining issues are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Resolving reasonable doubt in the appellant's favor, the evidence is at least in equipoise that the Veteran was precluded for obtaining and maintaining gainful employment consistent with his education and experience as a result of the functional limitations caused by his service-connected disabilities since November 7, 2009. CONCLUSION OF LAW The criteria for entitlement to TDIU are met since November 7, 2009. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION In a January 2010 VA Form 21-8940, Application for Increased Compensation Based on Unemployability, the Veteran asserted he stopped working fulltime in November 2009 due to residuals of TBI and migraines. The evidence of record indicates that he had a high school education and worked as a stocker in a grocery store since his release from prison in 2008. In January 2010, the Veteran's employer reported the Veteran last worked on November 6, 2009, and terminated employment due to health reasons. The Board notes that it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate, "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(a)(1), 4.15. In determining whether unemployability exists, consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; rather, that determination is for the adjudicator. 38 C.F.R. § 4.16(a); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A total rating may be assigned when the schedular rating for service-connected disabilities is less than 100 percent when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, this disability is ratable at 60 percent or more, or, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16. The Veteran's service-connected migraine headaches and residuals of TBI result from common etiology and are therefore considered as one disability. 38 C.F.R. § 4.16(a). Throughout the claim period, the combined evaluation was 70 percent prior to March 1, 2013, and 60 percent thereafter such that the Veteran met the minimum schedular criteria for a TDIU. Id. The Board concludes that the evidence is at least in equipoise that the Veteran was unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities since November 7, 2009. 38 U.S.C. § 5107(b). Specifically, the Board finds VA medical opinions in May 2010, April 2011, and November 2012 concluding that migraine headaches and residuals of TBI precluded physical employment to be highly probative. See Guerrieri v. Brown, 4 Vet. App. at 470-71 (noting that the credibility and weight of the opinions are within the province of the adjudicator). The May 2010 examiner explained that migraine headaches and vertigo caused significant effects on usual occupation due to increased absenteeism and concluded that headaches and residuals from TBI may affect both heavy and light physical labor but did not affect sedentary work. Similarly, the November 2012 examiner found residuals of TBI with headaches and dizziness also prevented physical work. The Board finds the other evidence of record consistent with the above. Despite the April 2011 examiner's conclusion that while the Veteran could not perform manual labor due to migraines and residuals of TBI he was not unemployable because he was able to do sedentary work, the Board notes that the evidence of record does not support a finding that the Veteran's level of education, special training, and previous work experience allowed for such employment opportunities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). As noted above, the Veteran completed a high school education and had recent prior work experience in sedentary employment. Moreover, the Board notes an August 2010 vocational rehabilitation assessment found it was not reasonably feasible for the Veteran to pursue a vocational goal due to disability limitations that could not be overcome due to a lack of transferable vocational skills. Resolving the benefit of the doubt in favor of the appellant, the Board finds the Veteran was unable to secure and follow a substantially gainful occupation due to service-connected migraine headaches and residuals of TBI. Therefore, a TDIU is warranted since November 7, 2009. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 55-56. ORDER Entitlement to a TDIU is granted from November 7, 2009. REMAND The remaining issues must be remanded so that a supplemental statement of the case (SSOC) can be issued. The Veteran was issued multiple statements of the case (SOCs) in December 2013. Since that time additional, pertinent evidence was added to the file, his daughter was substituted as the appellant after his death, and the appellant's representative (in a May 2017 Informal Hearing Presentation (IHP)) requested a statement of the case be issued and the opportunity for the appellant to request a hearing. While the appellant essentially "stepped into the shoes" of the Veteran in pursuing this appeal and no supplemental statement of the case is necessary simply because of the substitution, the Board interprets the representative's IHP as essentially indicating that AOJ review of the pertinent evidence received since the last SOC is not waived by the appellant. As such, these issues must be remanded. The Board notes that this decision grants a total disability rating back to November 2009. In light of this grant of benefits, if the appellant wishes to withdraw any of the remaining claims she is asked to notify the RO. If the appellant wishes to continue pursuing the appeal and would like a personal hearing, she should also notify the RO of her desire for a hearing. Additional development is also warranted before the claim of entitlement to service connection for an acquired psychiatric disorder may be decided. Specifically, an additional medical opinion is required. The Veteran contended that he had an acquired psychiatric disorder that was caused or aggravated by his service-connected headaches. Specifically, he asserted that his migraine headache pain affected his mood. Review of the record indicates diagnoses of depressive disorder, maladaptive personality traits with antisocial features, and polysubstance dependence. See 38 C.F.R. §§ 3.303(c); 4.9 (personality disorders are not diseases or injuries within the meaning of applicable legislation for disability compensation purposes); Allen v. Principi, 237 F.3d 1368, 1376 (Fed. Cir. 2001) (indicating that substance abuse may not be service-connected on a direct basis, but may be service-connected on a secondary basis). At a January 2013 VA examination, the examiner indicated that symptoms of depressed mood, sadness, periods of hopelessness, anhedonia, anergia, and passive suicidal ideation were attributable to the diagnosis of depressive disorder. The examiner concluded that it was less likely than not that headaches caused the depressive disorder, noting that the Veteran reported increased symptoms since release from prison in 2008 and did not begin mental health treatment until 2008 even though headaches had onset in active service. Rather, the examiner explained that depressive disorder was related to the cumulative effects of multiple medical conditions, to include a history of drug use and maladaptive personality traits. However, the Board finds the medical opinion to be unclear as the examiner based the opinion, in part, on a finding that service-connected migraine headaches did not solely cause the Veteran's difficulty in engaging in activities that caused him to feel worthless and frustrated; the Board notes that migraine headaches do not need to be the only cause of depressive disorder for service connection to be warranted. As such, clarification on whether migraines, in part, caused the Veteran's depressive disorder would be beneficial. Moreover, an opinion as to whether migraine headaches aggravated depressive disorder was not offered. Based on the above, an additional medical opinion is required. Accordingly, the case is REMANDED for the following action: 1. The claims file should be sent to an appropriate examiner to determine whether the Veteran's acquired psychiatric disorder was related to service-connected migraine headaches. Following review of the claims file and examination of the Veteran, the examiner is directed to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that depressive disorder was: a) caused by service-connected migraine headaches; or, b) worsened beyond the normal progression as a result of the Veteran's migraine headaches. In answering the above, the examiner is directed to specifically consider the December 2010 VA treatment record indicating irritability was secondary to headaches and a May 2011 VA treatment record noting the Veteran's complaints of migraine headaches negatively impacted his mood because depression and anger worsened as migraines became more frequent and severe. The rationale for all opinions expressed must be provided. 2. After completing the requested action, and any additional actions deemed warranted, the AOJ should readjudicate the claims on appeal. If any benefit sought on appeal remains denied, the appellant and her representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate review, if in order. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs