Citation Nr: 18148720 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 15-37 884 DATE: November 8, 2018 ORDER Entitlement to service connection for headaches is granted. Entitlement to a total disability rating based in individual unemployability (TDIU) is granted. REMANDED The claim of entitlement to service connection for a left wrist disability is remanded. The claim of entitlement to service connection for a right biceps disability is remanded. The claim of entitlement to service connection for residuals of left biceps repair is remanded. The claim of entitlement to service connection for a left pinky finger disability is remanded. The claim of entitlement to service connection for a left ring finger disability is remanded. The claim of entitlement to service connection for a low back disability is remanded. The claim of entitlement to service connection for a right knee disability is remanded. The claim of entitlement to service connection for a left knee disability is remanded. The claim of entitlement to service connection for sinusitis is remanded. The claim of entitlement to service connection for a sleep disability is remanded. The claim of entitlement to service connection for hypertension is remanded. The claim of entitlement to service connection for hernia is remanded. The claim of entitlement to an increased rating for traumatic osteoarthritis of the right wrist is remanded. The claim of entitlement to higher initial evaluations for major depressive disorder is remanded. FINDINGS OF FACT 1. The Veteran’s headache disability is proximately due to his service-connected major depressive disorder. 2. The Veteran is in receipt of VA compensation for major depressive disorder, evaluated as 70 percent disabling; and posttraumatic osteoarthritis of the right wrist, evaluated as 10 percent disabling. His total evaluation for compensation is 70 percent. 3. The Veteran’s service connected disabilities render him unable to obtain and maintain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for headaches, as secondary to major depressive disorder, have been satisfied. 38 C.F.R. § 3.310(a) (2017). 2. The criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.1, 4.15, 4.16, 4.18, 4.19, 4.25 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection The Veteran seeks service connection for a headache disability, asserting that it is related to his service-connected major depressive disorder. 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"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2017). This includes any increase in disability (aggravation) that is proximately due to or the result of a service-connected disease or injury. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused or aggravated by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Having reviewed the record with respect to this issue, the Board concludes that service connection for a headache disability is warranted. In this regard, the record contains an August 2018 examination report and opinion by a physician who determined that the Veteran’s headache disability, which he diagnosed as tension headaches, was related to his service-connected major depressive disorder. This opinion was provided by a medical professional who reviewed the history, interviewed the Veteran, researched medical literature, and provided an opinion supported by rationale. As there is an informed medical opinion indicating that the claimed headache disability is related to the Veteran’s service-connected major depressive disorder, the Board concludes that service connection is in order. 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. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. If the schedular rating is less than total, a total disability evaluation may be assigned based on individual unemployability if a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). As the Veteran’s psychiatric disorder is currently evaluated as 70 percent disabling, he meets the objective criteria under 38 C.F.R. § 4.16 for consideration of TDIU. Moreover, the Board concludes that TDIU is warranted in this case. In this regard, an October 2016 report by a private clinician indicates her conclusion that the Veteran was unable to tolerate stress from a competitive work environment or be expected to engage in gainful activity due to his major depressive disorder. This clinician supported her findings with a discussion of the manifestations of the Veteran’s psychiatric disorder as they relate to his ability to secure or follow a substantially gainful occupation. There is no indication that this clinician was not fully aware of the Veteran’s past history or that she misstated any relevant fact. As such, entitlement to TDIU is warranted. REASONS FOR REMAND 1. The claim of entitlement to service connection for a left wrist disability is remanded. 2. The claim of entitlement to service connection for a right biceps disability is remanded. 3. The claim of entitlement to service connection for residuals of left biceps repair is remanded. 4. The claim of entitlement to service connection for a left pinky finger disability is remanded. 5. The claim of entitlement to service connection for a left ring finger disability is remanded. 6. The claim of entitlement to service connection for a low back disability is remanded. 7. The claim of entitlement to service connection for a right knee disability is remanded. 8. The claim of entitlement to service connection for a left knee disability is remanded. 9. The claim of entitlement to service connection for sinusitis is remanded. 10. The claim of entitlement to service connection for a sleep disability is remanded. 11. The claim of entitlement to service connection for hypertension is remanded. 12. The claim of entitlement to service connection for hernia is remanded. 13. The claim of entitlement to an increased rating for traumatic osteoarthritis of the right wrist is remanded. 14. The claim of entitlement to higher initial evaluations for major depressive disorder is remanded. Review of the record reveals that there is outstanding evidence. In this regard, a May 2014 VA mental health treatment record notes the Veteran’s report that a worker’s compensation claim was denied in December 2011. As the basis of this worker’s compensation claim is unclear, and records considered in the adjudication of that claim might pertain to the issues remaining on appeal before the Board, those records should be sought. The matters are REMANDED for the following action: Contact the Veteran and request that he provide specific information regarding any prior claims for Worker’s Compensation benefits relating to injuries during post-service employment. He should be requested to provide a written release for all pertinent employment records, including all employment health records, documentation pertaining to any claim for worker’s compensation benefits, and all clinical records created pursuant to injuries claimed to have resulted from employment. After securing the necessary releases, the RO should request from the appropriate state body copies of its decision pertaining to worker’s compensation benefits and the medical evidence relied upon in making its determination. (Continued on the next page)   If, after making reasonable efforts to obtain named records the AOJ is unable to secure same, it must notify the Veteran and his representative and (a) identify the specific records the AOJ is unable to obtain; (b) briefly explain the efforts that the AOJ made to obtain those records; (c) describe any further action to be taken by the AOJ with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Barone, Counsel