Citation Nr: 18159786 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 17-28 389A DATE: December 20, 2018 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to a 50 percent rating for migraines for the entire appeal period is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities prior to September 19, 2017, is granted. REMANDED Entitlement to service connection for a cervical spine disorder is remanded. FINDINGS OF FACT 1. Resolving all reasonable doubt in his favor, tinnitus was incurred during the Veteran’s active duty service. 2. Resolving all reasonable doubt in his favor, the Veteran had frequent prostrating and prolonged attacks productive of severe economic inadaptability for the entire appeal period. He is entitled to the highest schedular rating but has not demonstrated any additional symptoms to warrant extraschedular consideration. 3. Resolving all reasonable doubt in his favor, prior to September 19, 2017, the Veteran’s service-connected disabilities precluded him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2018). 2. The criteria for entitlement to a 50 percent rating, but no more, for the entire appeal period for migraine headaches have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.124a (2016), DC 8100 (2018). 3. The criteria for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities prior to September 19, 2017 have been met. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from March 1996 to March 2000. In November 2018, the Veteran appeared and testified at a Travel Board hearing before the undersigned. 1. Entitlement to service connection for tinnitus. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as sensorineural hearing loss, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. 38 C.F.R. §§ 3.307, 3.309. The Veteran seeks entitlement to service connection for tinnitus. He contends that his tinnitus began after his head injury, and it has continued to this day. An October 2015 VA examination report documents a diagnosis of recurrent tinnitus. In addition, on his VA form 9, the Veteran reported “I was in the Navy and stationed aboard a ship which regularly fired heavy weapons and missiles exposing me to acoustic trauma. I was also exposed to engine and turbine noise and aircraft engine noise frequently.” This description is consistent with his service and as such, the first and second elements of service connection have been met. The issue therefore becomes whether there is a so-called “nexus” between the Veteran’s tinnitus and service. Although a favorable medical nexus opinion is generally necessary for a grant of service connection, no such opinion is needed if the disorder or condition for which service connection is sought is one that is recognized as a “chronic disease” in 38 C.F.R. § 3.309(a). In these instances, service connection can be granted based upon evidence of a continuity of symptomatology. Through his competent and credible statements and BVA hearing testimony, the Board finds that the Veteran has successfully shown continuity of symptomatology. The Board makes this finding despite a negative October 2015 VA medical opinion, as the examiner seemed to rely on the lack of a threshold shift, which is a legally insufficient rationale. The Court of Appeals for Veterans Claim has held that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability merely because hearing was within normal limits on audiometric testing at separation from service. Given that the Board is granting the Veteran’s claim on a direct basis, further discussion regarding whether the Veteran’s tinnitus is secondary to his service-connected TBI is not warranted. Reasonable doubt has been raised in this case, as such, the Veteran’s appeal is granted. 2. Entitlement to a rating higher than 30 percent for migraines prior to July 28, 2015; and higher than 50 percent thereafter. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. §1155; 38 C.F.R. §4.1. The Veteran’s migraine headaches are currently evaluated under 38 C.F.R. §4.124a, Diagnostic Code (DC) 8100, specifically applicable to migraines. In particular, his migraine headaches are evaluated as 30 percent disabling prior to September 19, 2017, and as 50 percent disabling thereafter. For the reasons discussed below, the Board finds that the Veteran is entitled to the maximum schedular 50 percent rating for migraine headaches under DC 8100 for the entire appeal period. Under DC 8100, a 30 percent rating is warranted for characteristic prostrating attacks occurring on an average once a month over last several months, and a maximum 50 percent rating is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. See 38 C.F.R. §4.124a. An October 2015 VA examination report shows that the Veteran experienced headaches that had a typical duration of less than one day; he had characteristic prostrating attacks of migraine pain approximately once every month. The examiner stated that the Veteran’s headaches affected his concentration but that he did not take breaks or miss work as a result. However, on his April 2016 notice of disagreement (NOD) the Veteran clarified that he in fact experienced prostrating attacks 3 to 4 times a month and that he had to miss work due to his migraines; he was only able to work part-time as a direct result of his migraines. A private DBQ dated in April 2017 confirmed that the Veteran experienced characteristic prostrating attacks of migraine headache pain about 2 to 4 times a month. The examiner explained that the Veteran’s chronic rhinitis, which he is service-connected for, appeared to be a large contribution to his problems. A September 2017 VA examination confirmed that the Veteran experienced approximately 4 prostrating attacks per month, resulting in him being incapacitated for approximately 15 to 20 days per month. As his Board hearing, he reported that his headaches have always been as bad as they currently are. When resolving all reasonable doubt in his favor, the Board finds that a 50 percent rating is warranted for the Veteran’s headaches for the entire appeal period. The evidence is clear that the Veteran has always had sinus issues, which, as noted, have contributed to his headaches. In addition, throughout the appeal period, the Veteran has reported that he experienced severe economic inadaptability as a result of his headaches as he could only work part-time and often had to take off work. Although the VA examination in October 2015 does not document characteristic prostrating attacks occurring on an average once a month and the Veteran’s headaches were noted to have worsened on VA examination in September 2017, the Board nonetheless still finds that a 50 percent rating is warranted. A 30 percent rating requires one prostrating attack per month; however, the Veteran has consistently demonstrated 2 to 4 prostrating attacks. Put differently, even if the Veteran’s headaches have worsened, he still met the criteria for a higher rating prior to his headaches worsening. In sum, a 50 percent rating is warranted for the Veteran’s migraine disability for the entire appeal period. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities prior to September 19, 2017. A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a TDIU, the Veteran must be unable to secure or follow a substantially gainful occupation because of his or her service-connected disabilities and there is either: one disability ratable at 60 percent or more, or, if more than one disability, at least one disability is ratable at 40 percent or more, and the multiple service connected disabilities combine to a disability rating of 70 percent or greater. Id. Although the Veteran may be unemployed, the dispositive issue is whether he or not he is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). For a Veteran to prevail on a claim for a TDIU rating, the sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See 38 C.F.R. 4.16(a). Van Hoose v. Brown, 4 Vet. App. 361 (1993). Initially, the Board acknowledges that the issue of TDIU prior to September 19, 2017 has not yet been adjudicated by the RO. However, given the favorable outcome below, there is no prejudice to the Veteran in proceeding to adjudicate the claim in the first instance. By way of this decision, prior to September 19, 2017, the Veteran is now service-connected for migraine headaches, rated as 50 percent disabling; and chronic sinusitis, rated as 30 percent disabling; his total rating was 70 percent. As such, he meets the schedular requirements for a TDIU. As noted above, the Board found the Veteran’s reports that his headaches have always been of the same intensity highly probative; the Veteran has not shown any reason to question his credibility. According to the Veteran’s Application for Increased Compensation Based on Unemployability, he last worked in December 2016. As of September 19, 2017, the Veteran has been awarded a TDIU essentially given the severity of his headaches. Because the Board has found that the Veteran’s headaches have remained the same, the Board finds that a TDIU is warranted from the time the Veteran last worked. The Board will not assign an exact effective date for the award of the TDIU; however, and will allow the RO to do so in the first instance. Urban v. Principi, 18 Vet. App. 143, 145 (2004) (per curiam order) (“To the extent that [the appellant] is arguing that the Board must assign, sua sponte, an effective date once it awards a rating of TDIU on appeal from an RO decision, such an argument is unavailing unless an NOD is then of record as to the downstream issue of an effective date for the assignment of that rating”). In sum, the Board finds that a TDIU is warranted from the date the Veteran last worked as the evidence establishes that his service-connected headaches and sinusitis, which compound each other, caused prostrating attacks several times a month that lasted several days, making it such that it would have been impracticable for the Veteran to secure and maintain substantially gainful employment prior to September 19, 2017. REASONS FOR REMAND Entitlement to service connection for a cervical spine disorder is remanded. The Veteran contends that he has a cervical spine disorder as a result of service. An April 2017 VA medical opinion states that the Veteran’s cervical spine disorder was less likely than not incurred in or caused by service. The examiner noted several instances of the Veteran injuring his neck in service; however, the examiner did not consider that a shelf fell on the Veteran’s head while he was in service. In addition, the VA examiner did not provide a medical reason why these in-service injures less likely than not caused the Veteran’s current disorder. As such, it lacks probative weight and remand for a new VA medical opinion is warranted. The matters are REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s cervical spine disorder is at least as likely as not related to service. The need for an in-person examination is left to the discretion of the clinician. (Continued on the next page)   A complete rationale for any opinion must be provided and the examiner is specifically directed to consider that the Veteran has hit on the head during service so hard that he sustained a TBI with a residual migraine disability for which he is now service-connected. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Martha R. Luboch, Associate Counsel