Citation Nr: 18146267 Decision Date: 10/31/18 Archive Date: 10/30/18 DOCKET NO. 16-40 464 DATE: October 31, 2018 ORDER 1. Entitlement to service connection for tension headaches associated with traumatic brain injury/head injury due to a motor vehicle accident (headaches) is denied. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. Tension headaches did not have their onset during service and are not otherwise related to service. 2. The Veteran is not precluded from securing and following a substantially gainful occupation by reason of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for tension headaches have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to a TDIU rating have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from July 1967 until July 1970. The Veteran declined a hearing in this case. Service Connection – Generally Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). The Board has thoroughly reviewed all the evidence in the Veteran’s claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, regarding the Veteran’s claim on appeal. 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). 1. Entitlement to service connection for tension headaches The Veteran claims that his current tension headaches are related to an injury he sustained while in service. As to a current disability, the Veteran has been diagnosed with tension headaches, as noted in the November 2015 VA examination report. Thus, the Veteran meets the first element of a claim for service connection. As to an in-service disease or injury, service treatment records document that the Veteran suffered a facial injury during a motor vehicle accident during active service. Service treatment records do not indicate any reports of headaches during active service. Where the Veteran’s claim for service connection fails is evidence of a nexus between the current disability and service. For example, in a July 1967 Report of Medical History at the Veteran’s enlistment into active service, the Veteran checked, “Yes” to the question “Have you ever had or have you now frequent or severe headaches?” The examiner on that date noted that the Veteran had experienced headaches in the past, but “not now. In an June 1970 Report of Medical History at the Veteran’s separation from active service, the Veteran checked “No” to the question “Have you ever had or have you now frequent or severe headaches” and to ever having or having now a “history of head injury.” The Veteran answered “Yes” to another question on the form, which tends to show that he read each question individually. The Veteran also wrote “I am in good health” on his report on this date. The Veteran was afforded a VA examination in November 2015. The examiner physically examined the Veteran, reviewed the Veteran’s file, and noted that the Veteran incurred a facial injury during a motor vehicle accident during active service. The examiner remarked that the Veteran did not know why he was having this examination, and thought that the examination was for something else. The examiner noted that the Veteran reported suffering from headaches. During his exam, the Veteran provided a statement reporting that his headaches first started three to four years prior to the exam, that he had not told his primary care provider about his headaches, and that he had not previously been evaluated for headaches. The examiner noted that the Veteran’s headache condition does not impact his ability to work. The examiner stated that the Veteran’s e-file indicates that the Veteran had a history of headaches prior to his military service. The examiner acknowledged that the Veteran sustained an injury during service that resulted in a laceration to his face, but that service treatment records were silent regarding a diagnosis of or evaluation for loss of consciousness, concussion, or traumatic brain injury from this or any other incident. The examiner noted that the Veteran’s service treatment records were also silent of complaints of, diagnosis of, or treatment for headaches due to the motor vehicle incident or any other incident. The examiner opined that the Veteran did not sustain a traumatic brain injury. The examiner reasoned that whereas the Veteran reports that his headache symptoms began in 2012, over 40 years after his motor vehicle incident, the Veteran’s current headache symptoms are not the result of a service-related injury, and are therefore less likely than not related to active service. This is evidence against a finding of a relationship between the Veteran’s current headaches and service. In a July 2014 lay statement, the Veteran stated that his motor vehicle accident in service caused a head injury that causes headaches from time to time, which requires him to take a lot of time off of from work. In February 2016, the Veteran’s friend stated that he has known the Veteran for some time and that the Veteran has been complaining of headaches at least twice per week. However, these assertions only indicate that the Veteran suffers from headaches now. They are not evidence of a nexus between the Veteran’s current headaches and active service. The Board accords high probative value to statements the Veteran made contemporaneously with service on his reports of medical history at entrance into and separation from service. Notably, the only evidence that the Veteran’s current headaches are related to his in-service injury are lay statements. The Veteran is competent to report that he is experiencing headaches. However, to the extent that his statements assert a nexus between the Veteran’s current headaches and his in-service motor vehicle accident, such statements are afforded no probative value, as the Veteran has not been shown to possess the expertise necessary to render a nexus opinion regarding the cause of his headaches. Furthermore, the Veteran’s statements that his headaches are related to his in-service injury are outweighed by the November 2015 opinion of a VA medical professional, who concluded that the Veteran’s current headaches are less likely than not related to active service, which opinion was based on a thorough review of the record with a rationale. For all the reasons laid out above, the Board finds that the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for tension headaches, to include headaches associated with traumatic brain injury/head injury due to a motor vehicle accident. Thus, as the preponderance of the evidence is against the claim, there is no reasonable doubt to be resolved, and the claim is denied. 38 U.S.C. § 5107(b). TDIU—Generally A TDIU rating may be granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 C.F.R. § 4.16(a). There are minimum disability rating percentages that must be shown for the service-connected disabilities, alone or in combination, to qualify for consideration for a TDIU award under § 4.16(a). Indeed, if there is only one such disability, it must be rated at 60 percent or more; if instead there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. The United States Court of Appeals for Veterans Claims (CAVC) has indicated that the unemployability question, or the veteran’s ability or inability to engage in substantially gainful activity, has to be looked at in a practical manner and that the crux of the matter rests upon whether a particular job is realistically within the capabilities, both physical and mental, of the appellant. See Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall not be considered substantially gainful employment and generally shall be deemed to exist when a veteran’s earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). 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). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19. In reaching a decision, it is necessary that the record reflect some factor which takes the case outside the norm with respect to a similar level of disability under the rating schedule. 38 C.F.R. §§ 4.1, 4.15. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether or not the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Beaty v. Brown, 6 Vet. App. 532, 538 (1994). 2. Entitlement to a TDIU rating The Veteran is currently service connected for a facial scar, rated as 80 percent disabling because it causes asymmetry of the Veteran’s eyelid. The Veteran is also service connected for a scar on the right side of his temple, which is 10 percent disabling, and right eye ectropian, which is 10 percent disabling. The Veteran meets the schedular requirements for consideration of an award of a TDIU rating. 38 C.F.R. § 4.16. The Veteran was afforded a VA addendum opinion in March 2015 by a medical professional who was asked to comment on the functional impairment caused solely by the Veteran’s service-connected disabilities. The medical professional responded that the Veteran’s eye condition does not impact his ability to work. The Veteran was afforded a VA addendum opinion by a medical doctor in March 2015, wherein she determined that the Veteran’s service connected scar does not impact his ability to work. As to the Veteran’s level of education, the Veteran has completed high school and attended several college programs over the years for a few months at a time and holds no formal degree from an institution of higher education. The Veteran’s work history reveals that he worked as a security officer from 2005 until November 2008, and performed custodial and repair work in the years prior. In a July 2014 statement, the Veteran asserts that no employer will hire him with his right eye tearing constantly due to his service-connected scar, and that his headaches also prevent him from working. A September 2015 statement by the Veteran asserts that as he is reaching the age of 70, there are no employers that will hire him with his current condition. Following a review of the evidence of record, the Board finds that the preponderance of evidence weighs against the Veteran’s claim of entitlement to a TDIU rating for the entire period on appeal. The Board acknowledges that the Veteran has reported that he is unemployable due to his service-connected facial scar; however, the preponderance of the evidence is against a finding that the service-connected facial scar prevents him from obtaining and sustaining gainful employment. The Board finds it probative that the evidence of record documents that the Veteran worked consistently as a security officer from 2005 until November 2008. Moreover, it is probative that in the March 2015 VA addendum opinions, the VA medical professionals concluded that the Veteran’s facial scar and eyelid symptoms did not impact his ability to work. The Veteran has alleged that his headaches impact his ability to work, but the Board has found in this decision that his tension headaches are not related to service, and thus they cannot be considered in determining whether the Veteran is precluded from securing and maintaining gainful employment. Additionally, as noted above, the Board cannot consider the Veteran’s advanced age in determining whether he is precluded from securing and maintaining gainful employment, thus his allegation that he is going to be 70 years old does not establish a basis for a TDIU rating. The allegation that an employer will not hire him because of his eye tearing is not credible. The Board accords high probative value to the conclusions of the VA medical professionals discussed herein, which weigh against a finding that the Veteran’s service-connected disabilities prevents him from obtaining and sustaining gainful employment. The preponderance of the evidence is against a finding that the Veteran’s service-connected disabilities preclude his participation in any form of substantially gainful employment at any time during the appeal period. Thus, entitlement to a TDIU rating is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Caruso, Associate Counsel