Citation Nr: 1815593 Decision Date: 03/16/18 Archive Date: 03/23/18 DOCKET NO. 14-20 974A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a rating in excess of 10 percent for tension headaches with sleep disturbance, prior to November 4, 2015, and to a rating in excess of 50 percent from November 4, 2015. 2. Entitlement to service connection for chronic fatigue syndrome (CFS). 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Costello, Associate Counsel INTRODUCTION The Veteran served on active duty for training from January 2004 to June 2004, with additional service in the Army National Guard. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions in February 2012 and April 2016 by the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. Jurisdiction was subsequently transferred to Waco, Texas. The Board notes that the Veteran did not request a hearing. FINDINGS OF FACT 1. Prior to November 4, 2015, the Veteran's headaches are manifested by very frequent prostrating and prolonged attacks productive of severe economic inadaptability attacks. 2. The record does not reflect a diagnosis of CFS. 3. The Veteran meets the schedular criteria for a TDIU, and from August 8, 2012, his service-connected disabilities preclude him from securing or following a substantially gainful occupation. CONCLUSION OF LAW 1. Prior to November 4, 2015, the criteria for a 50 percent disability rating for headaches are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.02, 3 .321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8100 (2017). 2. CFS was not incurred or aggravated in active service or a period of ADT or IDT, or manifest within one year of her separation from active duty service. 38 U.S.C. §§ 1101, 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.317 (2017). 3. Effective from August 8, 2012, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Increased Rating for Headaches Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the claimant's favor. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, the Court has held that 'staged' ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran contends that he should have a higher disability rating prior to November 4, 2015. A February 2012 rating decision granted service connection for tension headaches with sleep disturbance with an evaluation of 10 percent effective January 25, 2011. A May 2016 rating decision granted a 50 percent disability rating from November 4, 2015. Headaches are rated according to Diagnostic Code 8100. A 10 percent rating is assignable with characteristic prostrating attacks occurring on an average one in two months over the last several months. A 30 percent rating is assignable with characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent rating is assignable with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. 'Prostrating' is defined as extreme exhaustion or powerlessness. Dorland's Illustrated Medical Dictionary (31st Ed. 2007). In July 2011, the Veteran underwent a VA examination for miscellaneous neurological disorders. His claims file was reviewed. The Veteran complained of tension headaches and migraines since his lumbar surgery in 2004 that had been progressively worsening. He reported between 2 and 3 headaches per month with less than half prostrating and a usual duration of 1 to 2 days. He did not take medications. On examination, he had a normal mental status, a normal funduscopic examination, and all cranial nerves were intact. He was diagnosed with headaches and sleep disturbance. He had decreased concentration and increased absenteeism from work. There was no documentation of continuous treatment of migraines or tension headaches in the medical record. The VA examiner opined that the Veteran's tension headaches and sleep disturbance were at least as likely as not related to his service-connected spine condition as the Veteran had chronic muscle spasms of his lower and upper back. The examiner noted that it is an accepted medical opinion that chronic muscle strains and spasms could predispose a person to muscle tension headaches. In statements made in July 2011 and September 2011, the Veteran reported very frequent completely prostrating headaches that prevented him from working full-time. In June 2014, the Veteran stated that he frequently had in excess of 3 prostrating headaches a month which prevented him from having full-time employment. In a November 2015 letter, the Veteran stated that he had more than 3 prostrating tension headaches per month and that each attack generally lasted multiple days. He stated that he was incapacitated during the attacks. He reported that he was unable to work outside of his home since 2013 due to his headaches and that the work he did at home was marginal. He worked for friends and family and there were no deadlines for his work because his headaches may have prevented him from meeting a deadline. He made less than $8,000 a year from his work. The Veteran included journal recording of the amount and duration of his headaches. In June 2015 he had 3 headaches that lasted a total of 12 days. In July 2015 he had 4 headaches that lasted a total of 16 days. In August 2015 he had 5 headaches that lasted a total of 18 days. In September 2015 he had 6 headaches that lasted a total of 19 days. In October 2015 he had 5 headaches that lasted a total of 14 days. In April 2016, the Veteran underwent a disability benefits questionnaire (DBQ) for headaches. His claims file was reviewed. The Veteran was diagnosed with tension headaches and migraines. He reported taking Sumatriptan and a muscle relaxer to alleviate his headaches. The Veteran's symptoms included constant head pain, pulsating head pain, pain localized to one side or both sides of the head, and pain that worsened with physical activity. He also experienced nausea, sensitivity to light, sensitivity to sound, and sensory changes. Head pain typically lasted two days after headache onset. His headaches were prostrating once every month. The VA examiner noted that the Veteran is trained as a lawyer and that he reported problems concentrating. The unpredictability of the headaches prevented him from handling cases as he may not be able to go to scheduled meetings. He had never been denied employment. He tolerated his medications reasonably well. He could accomplish activities of daily living, such as eating, clothing himself, and toilet activities. He could do house work, garden work, exercise, and computer work. The examiner noted that the Veteran was not limited in his movement due to headaches and that his headaches had not gotten worse. The examiner opined that the condition claimed was less likely than not (less than a 50 percent probability) incurred in active service. The Veteran had headaches in service in April 2004 due to sinusitis. He was treated with antibiotics and the problem resolved. Headaches were documented in 2012 and 2014 and his current headaches were a progression of headaches that began in 2012. They were not related to lower back pain that began in-service or the headache he had in April 2004. The Board finds that there is a preponderance of the evidence which supports the Veteran's claim for an increased 50 percent rating for headaches prior to November 4, 2015. The evidence shows that the Veteran has very frequent prostrating headaches which would interfere with full-time employment. In this case, a 50 percent disability rating is warranted, as the evidence shows very frequent prostrating and prolonged attacks productive of severe economic inadaptability. For these reasons, the Board finds that the preponderance of the evidence supports the claim for a 50 percent disability rating for headaches prior to November 4, 2015. The Board notes that 50 percent is the maximum available rating under Diagnostic Code 8100 for migraines. The Board has considered whether referral for an extraschedular evaluation is warranted for the Veteran's headache disability. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as 'governing norms.' 38 C.F.R. 3.321 (b)(1) (related factors include 'marked interference with employment' and 'frequent periods of hospitalization'). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. 38 C.F.R. 3.321 (b)(1). Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by the Veteran's headache disability is specifically contemplated by the schedular rating criteria and no referral for extraschedular consideration is required. The schedular rating criteria for the Veteran's disability specifically provides for disability ratings based on a combination of history, symptoms, and clinical findings. Symptoms such as the frequency and severity of the Veteran's headaches are considered by the schedular criteria. Because the schedular rating criteria are adequate to rate the Veteran's headache disability, there is no exceptional or unusual disability picture to render impractical the application of the regular schedular standards. The Board finds that the criteria for referral for extraschedular rating have not been met. 38 C.F.R. § 3.321 (b)(1). Service Connection for CFS Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in active service. 38 C.F.R. § 3.303 (d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Also, service connection may be granted for disability resulting from disease or injury incurred during active duty for training (ADT), or injuries incurred during inactive duty training (IDT) to include when a cardiac arrest or a cerebrovascular accident occurs during such training. See 38 U.S.C. §§ 101 (24), 106. Reserve and National Guard service generally means ADT and IDT. ADT is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6 (c). IDT includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101 (23); 38 C.F.R. § 3.6 (d). Active military service includes active duty, any period of ADT during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of IDT during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 U.S.C. § 1106; 38 C.F.R. § 3.6 (a). Alternatively, for the purposes of service connection under the provisions of 38 C.F.R. § 3.317, the Veteran must have served during the Persian Gulf. The Persian Gulf War is defined as the period beginning on August 2, 1990 and ending on a date thereafter prescribed by Presidential proclamation or law. 38 U.S.C. § 101 (33). To date no such proclamation has been made. Since the Veteran's active service began subsequent to August 2, 1990 he has met this element. Second, 38 C.F.R. § 3.317 (e) requires that the Veteran have served active duty in the "Southwest Asia theater of Operations," defined as Iraq, Kuwait, Saudi Arabia, Qatar, United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and all airspace above the foregoing locations. Here, service personnel records reflect that the Veteran never served in the Southwest Asia theater of Operations. Accordingly, this Veteran does not meet the second requirement of service-connection pursuant to 38 C.F.R. § 3.317 (e). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. In January 2018, the Veteran's representative contended that the Veteran met the criteria for service connection for CFS on a direct basis for his active duty service and pursuant to the criteria set forth in 38 C.F.R. § 3.317 for Gulf War Veterans that exhibit objective indication of qualifying chronic disabilities. The Veteran's service treatment records (STRs) do not reflect any complaints, findings, treatment, or diagnosis of CFS. In July 2011, the Veteran underwent a VA examination for CFS. His claims file was reviewed. The Veteran reported a self-diagnosis of CFS since 2004 with a description resembling a textbook definition. He was never treated for CFS. The Veteran reported debilitating fatigue that waxed and waned. Debilitating fatigue was not constant or nearly constant and no incapacitating episodes were reported. His symptoms included fever, generalized muscle aches, generalized weakness, migratory joint pains, sleep disturbances, an inability to concentrate, forgetfulness, confusion, and headaches. The Veteran reported that all of his symptoms occurred frequently. On examination, there was no evidence of pharyngitis, cervical lymphadenopathy, or axillary lymphadenopathy. The Veteran had tenderness in the upper trapezius region of his posterior thorax. He was diagnosed with complaints of CFS, but there was no diagnosis of CFS. His medical records were silent of a past diagnosis of CFS and there was no trial of medication, no therapy, or neurological referral or follow-up of any kind for chronic fatigue. The examiner opined that the Veteran's upper back spasms were related to his lumbar spine condition due to chronic strain and spasms. In January 2012, the Veteran had a VA DBQ for CFS. The VA examiner found that it was reasonable that the Veteran had flare-ups of muscle strain, pain, and spasms with sleep interruption because of his service-connected spine condition and that those symptoms would cause fatigue symptoms. He opined that the Veteran clearly does not have a diagnosis of CFS. There was no pathological mechanism that would cause a diagnosis of CFS in relation to his lumbar spine condition. He did not have at least 6 of the 10 CFS diagnostic criteria. The examiner noted that the Veteran's activity was not limited more than 50 percent of the time, and did not impact on his daily activity. Further, the Veteran did not serve in Southwest Asia. In November 2012, a VA physician diagnosed the Veteran with chronic fatigue and poor sleep. The Veteran stated in June 2014 that his chronic fatigue was related to his service-connected headaches and service-connected back condition. He was unable to sleep throughout the night due to his back pain. An April 2016 VA treatment record included complaints of chronic low back pain, chronic headaches, and chronic fatigue. The Board notes that the Veteran's chronic fatigue was discussed as a symptom related to other diagnosed conditions, not a separately diagnosable condition or syndrome. The Veteran's relevant post-service treatment records do not reflect a diagnosis of chronic fatigue syndrome, although there is documentation as to the symptom of chronic fatigue. Additionally, the Board notes that the Veteran is already service-connected for tension headaches with sleep disturbance associated with status post L4-5 laminectomy and myofascial pain syndrome, status post L4-5 laminectomy and myofascial pain syndrome, left lower extremity radiculopathy involving the sciatic nerve with calf spasms, hemorrhoids with anal fissures, tender scar, left thumb injury, tinnitus, and sinusitis. Accordingly, because there is no evidence of a current diagnosis or symptoms that have not been attributed to a specifically diagnosed condition, there is insufficient evidence to establish service connection on a direct or secondary basis. Also, the Veteran is ineligible for entitlement pursuant to 38 C.F.R. § 3.317 as he never served in the Southwest Asia theater of operations. In this regard, the Board notes that it has accorded probative weight to the VA examination reports discussed above for the same reasons it found them adequate. Additionally, the Board re-emphasizes that chronic fatigue as a symptom of other conditions with clear etiologies is not sufficient to meet the first element of service connection, which requires an underlying disability. Although the Board acknowledges the Veteran's testimony with regard to his symptoms, the Board initially observes that the possibility of having chronic fatigue syndrome and an actual diagnosis of chronic fatigue syndrome are two entirely separate factual matters. Additionally, although the Veteran is competent to report that he experiences chronic fatigue and other symptoms, and is competent to testify as to what he was told, he is not competent to diagnosis this particular medical disorder. The Board finds that this is so based on the diagnostic criteria provided in the July 2011 and January 2012 VA examination reports. Furthermore, because there is no universal rule as to the competency of lay testimony on medical etiology, the Board must determine on a case-by-case basis whether a particular medical condition is a type of condition a lay person may competently testify to. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428, 433 n.4 (2011). Although lay persons are competent to provide opinions on some medical issues, in this case, whether the Veteran has a diagnosis of chronic fatigue syndrome or a chronic undiagnosed multi-symptom illness is outside of the common knowledge of a lay person. See Jandreau, 492 F.3d at 1377 n.4; Kahana, 24 Vet. App. at 435. Unlike, for example, reporting the symptom of chronic fatigue, diagnosing a condition and ruling out known etiological conditions that could cause the Veteran's reported symptoms requires inquiry into biological processes, anatomical relationships, and physiological functioning. See Jandreau, 492 F.3d at 1377 n.4. Such internal physical processes are not readily observable and are not within the competence of this Veteran, who has not been shown by the evidence of record to have medical training or skills. Thus, the Veteran's feeling or belief that he has or might have chronic fatigue syndrome is of little persuasive value. Accordingly, an award of service connection for CFS and to include undiagnosed illness is denied. 38 U.S.C. §§ 1101, 1110; 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.317. TDIU Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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, this disability shall be ratable at 60 percent or more, and that, 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. For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16 (a). VA interprets the schedular requirements in 38 C.F.R. 4.16 (a) to mean that a combined 70 percent rating is only required if no single disability is rated at 60 percent disabling. See M21-1, Part IV, Subpart ii, Chap. 2, Section F. Generally, VA does not presume a claim for a TDIU is a claim for increase in all service-connected disabilities. See M21-1, Part IV, Subpart ii, Chap. 2, Section F, Para h. 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 (b). Rating boards should refer to the Director of the Compensation and Pension Service for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16 (a). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16 (b). The rating board did not refer this case for extraschedular consideration. The essential issue is whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment (i.e. work which is more than marginal, that permits the individual to earn a "living wage"). 38 C.F.R. § 4.16 (b); Moore v. Derwinski, 1 Vet. App. 356 (1991). The record must reflect that circumstances, apart from non-service-connected conditions, place him in a different position than other veterans having the same compensation rating. The sole fact that the Veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the Veteran, in light of his service-connected disabilities, was capable of performing the physical and mental acts required by employment, not whether he could find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran has established service connection for tension headaches with sleep disturbance associated with status post L4-5 laminectomy and myofascial pain syndrome rated 50 percent effective from January 25 2011, pursuant to the Board's decision this date; status post L4-5 laminectomy and myofascial pain syndrome rated at 100 percent from June 10, 2004, and 40 percent effective from December 1, 2005; left lower extremity radiculopathy involving the sciatic nerve with calf spasms associated with status post L4-5 laminectomy and myofascial pain syndrome rated at 20 percent from December 1, 2005; hemorrhoids with anal fissures associated with status post L4-5 laminectomy and myofascial pain syndrome rated at 20 percent from January 25, 2011; tender scar status post L4-5 laminectomy rated at 10 percent from June 10, 2004; left thumb injury at a noncompensable rating from April 2, 2001, and a 10 percent rating from July 15, 2004; tinnitus rated at 10 percent from January 25 2011; and, sinusitis at a noncompensable rating from January 25 2011. The combined rating was 0 percent from April 2, 2001, 100 percent from June 10, 2004, 60 percent from December 1, 2005, 90 percent from January 25, 2011. Thus, the Veteran meets the prerequisite percentage requirements for an award of a schedular TDIU from January 25, 2011. The Veteran's current claim for a TDIU was received in November 2015. He has asserted that he is unemployable due to his service-connected tension headaches. The Board notes that the Veteran withdrew his initial TDIU claim in September 2011. As stated above, the Veteran's July 2011 VA examination for miscellaneous neurological disorders found he had decreased concentration and increased absenteeism from work. The Veteran complained of tension headaches and migraines since his lumbar surgery in 2004 that have been progressively worse. He reported between 2 and 3 headaches per month with less than half prostrating and a usual duration of 1 to 2 days. In July 2011, the Veteran and his wife submitted letters stating that the Veteran resigned from a full-time position in February 2010 for medical reasons and that he was unable to work a full-time position since due to his service-connected conditions. In June 2014, the Veteran stated that he frequently had in excess of 3 prostrating headaches a month which prevented him from having full-time employment. In a November 2015 letter, the Veteran stated that he was unable to work outside of his home since 2013 due to his headaches and that the work he did at home was marginal. He worked for friends and family and there were no deadlines for his work because his headaches may have prevented him from meeting a deadline. He made less than $8,000 a year from his work. The Veteran indicated in November 2015 TDIU application that he last worked full-time on August 8, 2012 and then worked 25 hours a week for a law firm from January 2011 to August 2013 and lost 2 months of work because of prostrating headaches. He reported that he worked from September 2013 to November 2015 as a web designer, accountant, bookkeeper, and general computer consultant for 7 hours a week. He worked for family and friends and lost 12 months of work due to prostrating headaches during the 26 months he worked in that capacity. He reported that his tension headaches and myofascial pain syndrome affected his full-time employment in August 2012 and that he became too disabled to work in August 2013. He left his last job due to his tension headaches and upper myofascial pain syndrome. He has at least a 4 year college degree and currently earned $300 a month. He applied for many positions from September 2013 to March 2015 including web design, register clerk, accounting work, and an administrative position at a law firm. The Veteran's April 2016 DBQ for headaches noted that the Veteran is trained as a lawyer and that he reported problems concentrating. The unpredictability of the headaches prevented him from handling cases as he may not be able to go to scheduled meetings. He can accomplish activities of daily living, such as eating, clothing himself, and toilet activities. He can do house work, garden work, exercise, and computer work. The examiner noted that the Veteran was not limited in his movement due to headaches and that his headaches have not gotten worse. Based on the above, combining his educational and occupational background with his disability, the Board finds credible the Veteran's testimony that his headache symptoms precluded fulltime and gainful employment at least from August 8, 2012. Although the Veteran worked for a portion of the appeal period, it was much less than part-time employment and was not the equivalent of substantially gainful employment. His last substantially gainful employment was in August 2012. The Board notes that his treating physician opined that his headache symptoms have been getting progressively worse. In viewing the medical evidence of record, as well as the statement by the Veteran, the Board finds the evidence in its totality shows that employment is precluded due to the Veteran's headache symptoms. The Veteran is to be afforded every reasonable doubt. See 38 U.S.C. § 5107. Accordingly, a total disability rating based upon individual unemployability due to service-connected disabilities is warranted from August 8, 2012. ORDER Entitlement to a disability evaluation of 50 percent for tension headaches is granted prior to November 4, 2015, subject to the laws and regulations governing the payment of monetary benefits. Service connection for CFS is denied. Entitlement to a TDIU effective from August 8, 2012, is granted, subject to the laws and regulations governing the payment of monetary benefits. S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs