Citation Nr: 20006780 Decision Date: 01/27/20 Archive Date: 01/27/20 DOCKET NO. 15-18 498 DATE: January 27, 2020 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected disabilities, is denied. Entitlement to an initial rating of 30 percent for the entire appeal period (beginning October 27, 1996), but no higher, for migraine headaches is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s acquired psychiatric disorder is not causally or etiologically due to service and is not proximately due to or aggravated by his service-connected disabilities. 2. Resolving all reasonable doubt in his favor, the Veteran’s migraine headaches are manifested by characteristic prostrating attacks occurring on an average once a month over the last several months, for the entire appeal period; his migraines are not manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 3. The Veteran’s service-connected disabilities do not meet the requisite schedular percentages for entitlement to a TDIU; the evidence of record does not demonstrate the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected disabilities, are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2018). 2. The criteria for an initial 30 percent rating, but no higher, for migraine headaches are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.21, 4.124a, Diagnostic Code 8100 (2018). 3. The criteria for entitlement to a TDIU are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.3, 4.16 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1992 to October 1996. This matter comes before the Board of Veterans’ Appeals (BVA or Board) from April 2013 and May 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2018, the Board granted an earlier effective date for the grant of service connection for migraine headaches, and remanded entitlement to an increased rating for migraines, entitlement to service connection for a psychiatric disorder, and entitlement to a TDIU for additional development. Service Connection 1. Entitlement to service connection for an acquired psychiatric disorder. The Veteran seeks entitlement to service connection for an acquired psychiatric disorder. Under the relevant laws and regulations, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). In general, service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a) and (b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish entitlement to service connection on a secondary basis, there must be evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). Rather, the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant). The Veteran has not asserted any in-service cause or connection for his psychiatric disorder and has only asserted service connection as secondary to his service-connected disabilities. Service treatment records are silent for any complaints, symptoms or diagnosis of a psychiatric disorder. He denied any history of depression or excessive worry on his November 1996 Report of Medical History and a November 1996 examination did not note any psychiatric abnormalities; there are no medical opinions of record linking his psychiatric disorder directly to service. The Veteran’s claim fails on a direct basis, and the Board’s adjudication will focus on entitlement to secondary service connection. First, the Veteran has a current diagnosis of panic disorder with agoraphobia. See June 2015 VA examination. The Veteran also has various diagnoses of a mood disorder, such as major depression, during the course of the appeal. As such, element (1) set forth under Allen, current disability, has been satisfied. Unfortunately, element (2) under Allen is not met. The Board acknowledges a July 2014 private assessment. The private psychologist opined that the Veteran’s back muscle strain, tinnitus, sprain of the right ankle, and plantar fasciitis/heel spur of the right foot caused the Veteran’s mood disorder. The psychologist indicated that there is a body of literature detailing the connection between medical issues and psychiatric disorders and that studies confirm the existence of neural circuits that are activated both in depression and tinnitus. Continuing, the private psychologist stated that individuals with medical issues and mood disorder debilitation become disabled due to the holistic effect of medical and psychiatric disturbance, just like the back muscle strain, tinnitus, sprain of the right ankle, plantar fasciitis/heel spur of the right foot and secondary mood disorder endured by the Veteran renders him incapacitated. The psychologist then opined that the Veteran’s service-connected disabilities also more likely than not aggravate his mood disorder. The Veteran also submitted medical articles in support of his claim. The Board notes that medical articles or treatise can provide important support when combined with an opinion of a medical professional if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least a plausible causality based upon subjective facts rather than unsubstantiated lay opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999). However, treatise evidence alone is usually “too general and inconclusive” to establish a medical nexus. Sacks v. West, 11 Vet. App. 314, 317 (1998). In this case, the treatise evidence submitted is accompanied by the private medical opinion; however, the private psychologist only made generalized statements. Furthermore, as discussed below, a VA examiner reviewed the medical articles and discussed how they were not supportive of the Veteran’s claims. Therefore, the articles are not considered to be evidence sufficient to support the grant of service connection, especially in light of the competent and persuasive medical opinion to the contrary, discussed below. The Veteran was afforded a VA examination in June 2015. The examiner indicated that the Veteran was coping with his health issues within normal limits. After a thorough interview and evaluation, the examiner opined that the Veteran’s psychiatric disorder was less likely than not proximately due to or aggravated by any of his service-connected disabilities. The examiner explained that the Veteran had classic symptoms of panic disorder and agoraphobia, which are consistent with treatment records. The examiner noted the Veteran reported good coping with his health problems, report was a normal and expected response to medical issues and when asked, the Veteran stated this was true. When asked, the Veteran also identified his stresses as financial issues, difficulties in public consistent with agoraphobia, divorce and custody issues, and never identified his health as a factor. The examiner noted that the DSM-5 and DSM-IV both require emotional responses to health issues to be beyond the usual and expected response to health problems to be considered clinically significant. Where, as here, there are conflicting medical opinions in the claims file, the Board is entitled to independently assess the opinions and make a determination as to relative weight to assign to each opinion. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). If the Board finds that a private opinion is less persuasive than an opinion offered by a VA medical examiner, it may attribute more probative weight to the VA medical examiner’s opinion, so long as that determination is supported by an adequate statement of reasons or bases for doing so. D’Aires v. Peake, 22 Vet. App. 97, 107-108 (2008). The probative value of a medical opinion is also generally based on the scope of the examination or review, as well as the relative merits of the analytical findings; the probative weight of a medical opinion may be reduced if the physician fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). The June 2015 VA examiner specifically noted the July 2014 private assessment and reported that the Veteran stated the private assessment was by telephone and did not include a video telehealth portion. The VA examiner noted that the Veteran self-reported an active, stable and busy social/family life with good relationships, which is difficult to reconcile with the private telephone report of July 2014 that indicated he has little social life and was isolated. The Veteran also reported a stable work history with issues unrelated to emotional issues and he was doing well in a program at school for a new profession. The Veteran reported a history of panic attacks starting approximately two to three years after discharge from service in 1998 or 1999. He remembered his first panic attack as occurring when he was getting ready to move and his marriage had started to deteriorate; panic attacks have occurred weekly since then. He also reported an onset of irritability around the time of his first panic attack and the increased stress of moving and marital issues. He first sought mental health treatment in 2014, reporting primary areas of anxiety as marriage, kids, work and money. He was unable to identify any specific markers or life events for when his symptoms began; he was diagnosed with panic disorder and major depression at the time. The VA examiner noted that in 2014, the Veteran was reportedly interviewed by telephone by the private psychologist, which was not documented in the report, but does explain the lack of standard behavioral observations in the report. The examiner noted the 2014 report included a global assessment of functioning (GAF) score, but the DSM-5 does not use GAF scores and the DSM-5 has long been in effect. The examiner stated the 2014 evaluation was not consistent with that of the psychologists in the VA system or the Veteran’s current report, and painted a severe picture, including hallucinations, which are not documented in records. The psychologist also did not provide the Veteran’s personal history, provided minimal social history, and did not provide mental health history, marital/relationship history, interpersonal history or employment history, which are major gaps in the evaluation. The VA examiner noted the 2014 report indicated the Veteran has a much lower level of function, even severe limitations, that clearly are not consistent with the Veteran’s own reports or reports from providers. The VA examiner noted the private psychologist cited to studies, however, it was explained that the studies cited show only correlational relationships, which are not causative. The VA examiner stated that most persons with health issues do not have emotional problems outside normal and expected reactions. In short, the VA examiner stated the private evaluation was poor with inadequate documentation of history in several important areas and no supporting facts related to the Veteran’s specific presentation or history for the conclusions drawn. The examiner stated that citing general literature is not the same as making a medical opinion based on complete evaluation with documented history and supportive information from the individual case. The VA examiner opined that the Veteran’s work environment and divorce are much more likely causes of mood and psychiatric problems based on the actual documentation in the treatment notes and information provided by the Veteran. Concluding, the VA examiner stated the 2014 private psychologist did not cite any specific facts in the Veteran’s case to support the conclusion that this Veteran had any connection of health and mood issues in his case, and cited literature that was either marginally relevant or showed only a correlation in a minority of persons with health issues, rather than evidence of causation in the two. Therefore, based on the evidence of record, the Board finds the June 2015 VA examiner’s report and opinion to be more probative than the July 2014 private psychologist’s opinion. The VA examiner’s opinion is supported by a more thorough interview and evaluation and has a thoroughly explained rationale with complete review of evidence in the claims file. While the private psychologist referred to medical literature that supported the conclusion the Veteran’s psychiatric disorder was secondary to his service-connected disabilities, the VA examiner explained that these studies only showed a correlation in a minority of persons rather than evidence of a causation. Furthermore, the VA examiner noted specific deficiencies in the private evaluation report, to include a lack of thorough assessment of the Veteran’s history and description of current behavioral symptoms. The VA examiner also noted that the private evaluation described symptoms significantly more severe than the Veteran’s own reports of symptoms and the treatment notes, of record. Thus, the Board finds that the opinion offered by the June 2015 VA examiner is the most persuasive opinion of record and warrants the greatest probative weight. The Board has considered the Veteran’s own statements regarding the nature and etiology of his disorder. The Board acknowledges that the Veteran is competent to give evidence about what he experiences; for example, he is competent to discuss pain and other symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran, however, is not competent to render an opinion as to the cause or etiology of his psychiatric disorder because he does not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). The nexus question presented here involves knowledge of an internal process extending beyond an immediately observable cause-and-effect relationship. Accordingly, though the Veteran is competent to report his symptoms, he is not competent to provide an opinion as to nature and etiology. In summary, although the Veteran has a current diagnosis, there is no probative persuasive medical evidence that his disorder is proximately due to or aggravated by service-connected disabilities. The Board concludes that the preponderance of the evidence weighs against the Veteran’s claim of service connection for a psychiatric disorder, to include as secondary to service-connected disabilities. Increased Rating 2. Entitlement to an initial compensable rating for migraine headaches, prior to July 10, 2014, and to a rating higher than 30 percent, thereafter. Service connection for migraine headaches was established by a May 2015 rating decision, at which time a 30 percent rating was assigned, effective July 10, 2014. In August 2015, a notice of disagreement was received regarding the effective date of service connection, as well as the disability rating assigned. In a July 2018 Board decision, an earlier effective date of October 27, 1996 for the grant of service connection was assigned, and the issue of entitlement to an increased rating was remanded. The Board’s decision was effectuated in an October 2018 rating decision, and the RO granted a noncompensable rating, prior to July 10, 2014, and continued the 30 percent rating, thereafter. Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Generally, where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § § 4.3. The Veteran’s entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the evidence since the grant of service connection and consideration of the appropriateness of a “staged rating” (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board has considered the entire record, including the Veteran’s VA clinical records and private treatment records. These show complaints and treatment but will not be referenced in detail. The Federal Circuit has held that the Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Therefore, the Board will discuss the evidence pertinent to the rating criteria and the current disability. Under Diagnostic Code 8100, a 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent evaluation is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months; and a 50 percent evaluation is assigned for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. A 50 percent rating is the maximum rating available under Diagnostic Code 8100. The rating criteria do not define “prostrating.” The Court of Appeals for Veterans Claims recently noted that the phrase “characteristic prostrating attacks” means attacks that typically produce powerlessness or a lack of vitality. Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). In other words, the term “prostrating” takes on its plain meaning of “lacking in vitality or will: powerless to rise: laid low.” Id. The Court also held in Johnson that the criteria of Diagnostic Code 8100 are successive. Thus, 38 C.F.R. §§ 4.7 and 4.21 are not for application. Additionally, the terms “productive of severe economic adaptability” have not been clearly defined by regulations or by case law. The Court has noted that “productive of” can either have the meaning of “producing” or “capable of producing.” Pierce v. Principi, 18 Vet. App. 440, 445 (2004). Migraines need not actually “produce” severe economic inadaptability to warrant the 50 percent rating. Id. at 445-46. Further, “economic inadaptability” does not mean unemployability, as such would undermine the purpose of regulations pertaining to a total disability rating based on individual unemployability. Id. at 446; see also 38 C.F.R. § 4.16. The Board notes, however, that the migraines must be, at minimum capable of producing “severe” economic inadaptability. Turning to the evidence of record, in July 1996, the Veteran reported having frequent or severe headaches on his Report of Medical History for his separation examination. In May 1997, the Veteran reported he had headaches once a week that were prostrating. An August 1997 VA examination indicates the Veteran reported headaches that occurred one to two times per week, with a duration of up to one day, described as a sharp, throbbing pain. It was noted they were relieved by resting, and usually occurred on the weekends or after work, so he never had to leave work for them. The examination report indicates the headaches had not changed in intensity, duration, or frequency in the prior six months and there were no associated symptoms. An April 2013 VA treatment note reports the Veteran sought treatment for fatigue and being awakened twice with migraine headaches since Friday. It was noted that he became dizzy and started to sweat upon standing. He was given a pain reliever. In February 2015, a private physician completed a disability benefits questionnaire (DBQ). It was noted that the Veteran reported beginning to have headaches while in service, three times a week. It was noted he took over the counter medication for his headache pain. Symptoms were described as pain on both sides of the head, with nausea, vomiting, sensitivity to light and sound, and sensory changes. Duration was noted to be less than one day. He was noted to have characteristic prostrating attacks of migraine pain more frequently than once a month, and the physician specifically noted that the Veteran had very frequent prostrating and prolonged attacks of headache pain, which affected his ability to work. The physician opined that the Veteran cannot be expected to engage in gainful employment secondary to the level of severity of his migraines. Concluding, the physician stated that the Veteran has suffered from headaches since 1995 and has headaches three times per week with nausea, vomiting, sensitivity to light and sound and sensory changes. In a separate worksheet, the physician opined that the Veteran would miss three or more days of work per month due to headaches and would also need to leave early from the workplace three days or more because of headaches. The physician also opined that the Veteran would not be able to stay focused to complete simple repetitive tasks due to headaches more than three days per month. The physician then opined that the Veteran would not be able to maintain substantially gainful employment due to his headaches. An April 2015 VA examination indicates the Veteran reported having three to four severe headaches per year while in service from 1992 to 1996. It was noted that since discharge, the Veteran reported an increase in the severity and frequency of his headaches. The Veteran indicated he took over the counter medication for his pain. He described his headaches as pulsating or throbbing head pain on both sides of his head that worsened with physical activity. He also experienced nausea, vomiting, sensitivity to light and sound, and changes in vision during headaches. Duration of headaches was noted to be one to two days. The examiner indicated the Veteran had characteristic prostrating attacks of pain that occurred once a month. The examiner also indicated that the Veteran had very prostrating and prolonged attacks of migraines productive of severe economic inadaptability. The examiner noted that the Veteran stated he last worked in October 2014 and was terminated because of excessive lateness and missed days of work due to his headaches. A July 2015 VA treatment note indicates the Veteran reported he experienced “little headaches” and that he took over the counter medication for the pain. It was noted that he planned on returning to college in the fall. A June 2015 VA examination for his psychiatric disorder noted that the Veteran was terminated from his job in October 2014 because his performance had gone down due to an inability to lift motors because of his back as well as missing work due to migraines. He reported he had not put forth an effort to look for work and was instead going to go to school. The report indicates the Veteran began school in January 2015 and received all A’s in the semester. In December 2016, a VA treatment note indicates the Veteran reported he was doing good and indicated his last migraine was approximately a week ago. He stated his migraines, “never fully come on” and occurred sometimes once a week. He reported taking over the counter medication that helped his symptoms. It was noted that an antihistamine medication was prescribed for his headaches. The Veteran was afforded a VA examination in September 2019. The Veteran reported that his headaches had increased in frequency and severity since his prior VA examination in 2015. It was noted they occur three times a week and last hours to all day. The examiner noted the Veteran has not seen a neurologist or had specialized testing, and he takes over the counter medication for relief. The Veteran described his headache pain as pulsating or throbbing pain on both sides of the head that worsens with physical activity. He also reported nausea, vomiting, and sensitivity to light and sound. Typical duration of pain is less than one day. The Veteran was noted to have characteristic prostrating attacks of migraine pain approximately once in two months, but he does not have very prostrating and prolonged attacks productive of severe economic inadaptability. It was noted that during headaches, the Veteran has a reduced ability to concentrate, perform complex mental tasks and interact with others. The examiner noted the Veteran reported he has had no form of employment since 2017. The examiner stated the Veteran has had an increase in frequency of headaches since the onset in 1996, as records from service indicate his headaches occurred approximately four times per year, in the 2015 VA examination headaches were noted to occur once a month, and currently, headaches occur approximately three times a week. However, the examiner stated that while the frequency of headaches has increased, the severity of headaches has remained unchanged. The examiner noted the Veteran has not been evaluated by a neurologist and has not been prescribed any medication that is commonly prescribed for migraines; he only takes over the counter medication. Continuing, the examiner noted the Veteran’s migraines are severe enough to affect his ability to perform both physical and sedentary occupations as they cause impaired concentration, reduced ability to perform complex mental tasks and to interact with others. It was also noted that the duration of the Veteran’s headaches, of up to one day, would also affect his ability to perform satisfactory activity that would be sufficient enough to satisfy most employers. Considering the pertinent evidence in light of the applicable rating criteria and considerations, the Board finds that, resolving all reasonable doubt in his favor, the Veteran is entitled to an initial rating of 30 percent, but no higher, for the entire period on appeal. As noted, a 30 percent evaluation is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. Here, the Board notes that prior to July 2014, the Veteran’s headaches were described in varying frequencies. For example, the April 2015 VA examination indicates the Veteran reported having three to four severe headaches per year while in service from 1992 to 1996, but in May 1997, he reported they occurred once a week; in August 1997, he reported they occurred one to two times per week in August 1997. The record is unclear at times whether the Veteran was reporting headaches, or prostrating headaches. However, throughout the appeal period, the evidence indicates that the Veteran’s migraines included symptoms such as nausea, vomiting, sensitivity to light and sound, and changes in vision. As such, the Board resolves doubt in the Veteran’s favor and finds that a 30 percent rating is warranted for the entire appeal period. A rating higher than 30 percent is not warranted at any time during the period on appeal, however. As previously noted, a 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Here, the Board notes that there is evidence that the Veteran’s headaches have increased in frequency throughout the appeal period; however, there is no evidence of increase in severity resulting in prolonged attacks productive of severe economic inadaptability. The Board acknowledges the Veteran’s headaches affect his employment, however, he has been able to manage his symptoms with over the counter medication and has not sought treatment or evaluation from a specialist. Furthermore, the Board notes that the Veteran himself described his migraines as “little headaches.” See July 2015 VA treatment note. Additionally, in August 1997, the Veteran stated he never had to leave work due to his headaches, and in the September 2019 VA examination, he reported he was successfully employed from 1996 to 2013 as a technician, and from 2013 to 2017 as a meat cutter. He also was able to be enrolled in school, reporting that he successfully earned all A’s despite having migraines. The Board also acknowledges that the February 2015 private physician and the April 2015 VA examiner specifically indicated that the Veteran had very prostrating and prolonged attacks of migraines productive of severe economic inadaptability. The February 2015 private physician also opined that the Veteran cannot work due to his headaches. Although the Board is not bound by the physicians’ opinions, it is evidence that must be taken into consideration. Importantly, the February 2015 private physician stated the Veteran’s migraines had a duration of less than one day; the physician also reported conflicting information that the Veteran experienced headaches every day but also stated he experienced them three times per week. The April 2015 VA examiner indicated the Veteran’s migraines were productive of severe economic inadaptability because the Veteran reported he was terminated from work in October 2014 due to excessive lateness and missed days due to headaches; importantly, the examiner also noted that the prostrating attacks only occurred once a month with a duration of only one to two days. Throughout the course of the appeal, the severity of his headaches remained unchanged. Although they cause symptoms such as nausea, vomiting, sensitivity to light and sound and visual changes, they have consistently been described as having a duration of less than one day, to no more than one to two days. The Board does not find that the Veteran’s described symptoms, particularly the duration of his migraines, more nearly approximates “prolonged attacks” as stated in the rating criteria for a 50 percent rating. As noted, the February 2015 private physician opined that the Veteran cannot be expected to engage in gainful employment secondary to the level of severity of his migraines, however, the Veteran himself reported he was employed until 2017 as a meat cutter and in June 2015, the Veteran reported he was successfully enrolled in school, earning all A’s. The September 2019 VA examiner stated the Veteran’s headaches were severe enough to affect employment, causing impaired concentration, reduced ability to perform complex mental tasks and to interact with others; the Board acknowledges that the Veteran’s migraines affect employment. However, the Board finds that a 30 percent rating appropriately compensates the Veteran for his migraines. The policy behind providing the Veteran disability compensation benefits is to compensate the Veteran for the functional impairment caused by his service-connected disability, including lost time in employment. See 38 C.F.R. § 4.1. Therefore, missing work as a result of his service-connected migraines is reflected in the Veteran’s 30 percent rating. The Board acknowledges the Veteran’s assertions that his disability is more severe than a noncompensable rating prior to July 2014, and a 30 percent rating, thereafter. The Veteran is competent to report his symptoms. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board has considered these statements in the assignment of a higher rating of 30 percent, for the entire appeal period; however, there is no probative or persuasive evidence that the Veteran’s symptoms have caused prolonged attacks which are productive of severe economic inadaptability. Therefore, the criteria for a 50 percent rating at any time during the appeal period have not been met. In conclusion, resolving all reasonable doubt in his favor, the Veteran is entitled to an initial rating of 30 percent, but no higher, for the entire appeal period. TDIU 3. Entitlement to a TDIU. The Veteran seeks entitlement to a TDIU. A total disability rating may be assigned where the schedular rating is less than total when the disabled person is 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, or if there are two or more 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. See 38 C.F.R. § 4.16 (a). Nevertheless, even when a Veteran does not meet the percentage standards for schedular TDIU, he may be considered for TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b). However, the Board does not have the authority to assign extraschedular TDIU in the first instance. See 38 C.F.R. § 4.16 (b). The Veteran is service connected for migraine headaches, rated as 30 percent disabling, from October 27, 1996, back muscle strain, rated as noncompensable from October 27, 1996 to April 8, 2009 and as 20 percent disabling from April 8, 2009, tinnitus as 10 percent disabling, from October 27, 1996, sprain of the right ankle as noncompensable from October 27, 1996 to April 8, 2009 and as 10 percent disabling from April 8, 2009, plantar fasciitis/heel spur of the right foot as noncompensable from October 27, 1996 to April 8, 2009 and as 10 percent disabling, from April 8, 2009, bilateral hearing loss as noncompensable from October 27, 1996 and jaw numbness from wisdom teeth extraction, as noncompensable from October 27, 1996. As such, the Veteran does not meet the minimum rating requirements of 38 C.F.R. § 4.16 (a). Consequently, the Board must consider whether referral to the Director of Compensation Service for extraschedular consideration is warranted. An assessment for extraschedular referral requires consideration of the Veteran’s service-connected disability, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16 (b). Unemployability associated with advancing age or intercurrent (i.e. non-service connected) disability may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. The fact that a Veteran is unemployed or has difficulty obtaining employment is not enough, as a schedular rating provides recognition of such. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The schedular criteria contemplate compensating a Veteran for considerable loss of working time from exacerbations proportionate to the severity of the disability. See 38 C.F.R. § 4.1. The ultimate question is whether the Veteran, because of service-connected disabilities, is incapable of performing the physical and mental acts required by employment, not whether he or she can find employment. See Van Hoose, 4 Vet. App. at 363. Referral for entitlement to TDIU on an extraschedular basis has been considered, but there is no persuasive credible evidence that the Veteran is unemployable due to his service-connected disabilities. Importantly, the Veteran was provided a VA Form 21-8940, Application for Increased Compensation based on Unemployability, as well as a VA Form 21-4192 in May 2019. A copy of these forms was also sent to the Veteran’s attorney in May 2019. To date, neither of the forms have been received by the VA, which would have provided relevant information regarding his claim of entitlement to a TDIU. While the evidence reflects that the Veteran’s disabilities cause some occupational impairment, it has not been persuasively shown they impact him so severely as to completely preclude him from obtaining and maintaining substantially gainful employment. For example, in August 1997, the Veteran specifically noted that he had not missed any work due to his migraines. According to vocational rehabilitation applications, he graduated from high school and had stable work as an automotive technician from 2001 to 2007, 2007 to 2009 and 2009 to 2014. It was noted that he applied for Social Security in 2014. Social Security records indicate the Veteran reported stopping work in October 2014 due to his disabilities. Importantly, a June 2015 VA examination noted the Veteran reported not putting forth an effort to look for work after October 2014 because he was going to attend school instead. The Veteran then indicated in the June 2015 VA examination that he began school in January 2015, taking classes in industrial engineering earning a 4.0 (all A’s.) A September 2019 VA examination then notes the Veteran worked as a meat cutter until 2017 but had no form of employment since 2017. The Board notes a February 2014 private medical opinion indicates the Veteran’s psychiatric disorder would affect his employment and his service-connected disabilities have rendered him incapacitated; however, from the evidence of record, it appears that the Veteran obtained and sustained employment subsequent to this evaluation, as noted in a June 2015 VA examination, and the Veteran has not been granted entitlement to service connection for a psychiatric disorder. A private medical opinion from February 2015 opined that the Veteran cannot work due to the severity of his migraines; however, as noted, the evidence indicates that the Veteran did, in fact, have employment subsequent to 2015, and even successfully completed additional school work. See June 2015 and September 2019 VA examinations. Additionally, a September 2019 VA examiner noted that the Veteran’s headaches affected the Veteran’s ability to perform both physical and sedentary occupations, causing impaired concentration, reduced ability to perform complex mental tasks and to interact with others; however, evidence indicates the Veteran’s headaches have a duration of up to, at most, only one to two days; furthermore, the examiner noted that the Veteran had significant potential for improvement if he was seen by a qualified neurologist and began taking appropriate medication. As noted, the evidence indicates the Veteran has been employed until, at least, 2017. From 2017, there is no persuasive evidence the Veteran’s migraines precluded him from obtaining or securing gainful employment. There is also no persuasive evidence in the claims file that his back muscle strain, tinnitus, sprain of the right ankle, plantar fasciitis/heel spur of the right foot, bilateral hearing loss or jaw numbness caused him to be unable to secure or follow a substantially gainful occupation. Importantly, because the Veteran did not provide the requested VA Form 21-8940, the Veteran’s file lacks specific information about the Veteran’s educational history and employment history. There is no specific evidence of when the Veteran became unemployed, and there is very limited information regarding his past employment experience and educational background. There is no information provided as to whether the Veteran’s employment was gainful or not. While the RO has tried to obtain additional evidence, the Veteran has not provided it. Given this, the Board finds that the most probative evidence shows that the Veteran is not unable to secure or maintain gainful employment due to his service-connected disabilities. In summary, the evidence of record does not persuasively show that the Veteran is unable to maintain substantially gainful employment due to his service-connected disabilities. The Board acknowledges the medical and lay evidence that the Veteran’s service-connected disabilities impact his occupational functioning; however, a disability rating in itself is recognition that the ability to work is impaired. 38 C.F.R. § 4.1. The Veteran’s failure to submit a VA Form 21-8940 has also precluded the consideration of potentially favorable evidence as a completed form could have provided more information regarding the Veteran’s work history and reasons for not being able to maintain employment. See Wood, 1 Vet. App. at 193 (noting that the duty to assist is not a one-way street). Therefore, the Board declines to refer the Veteran’s TDIU claim to the Director of Compensation Service for consideration of a TDIU on an extraschedular basis under 38 C.F.R. § 4.16 (b). (continued on next page) As the preponderance of the evidence is against his claim, a schedular TDIU is not warranted and referral for consideration of extraschedular TDIU is also not warranted. While the Board has considered the applicability of the benefit of the doubt doctrine, it is not applicable because the preponderance of the evidence is against his claim. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Andersen, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.