Citation Nr: 20007855 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 15-00 719 DATE: January 30, 2020 ORDER Entitlement to a 30 percent rating for the period from October 15, 2012, to August 4, 2013, for migraine headaches is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an increased rating greater than 50 percent for migraine headaches from August 4, 2013, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) based solely on service-connected migraine headaches is denied. Entitlement to TDIU based solely on service-connected posttraumatic stress disorder (PTSD) with major depressive disorder (MDD) is denied. FINDINGS OF FACT 1. From October 15, 2012, to August 4, 2013, the Veteran’s migraine headaches most closely approximated characteristic prostrating attacks averaging 1 per month over the last several months. 2. From August 4, 2013, the Veteran’s migraine headaches have manifested in pulsating or throbbing head pain bilaterally, with nausea, sensitivity to light, sound, and changes in vision at least two to three times per month imposing severe economic inadaptability. 3. For the entire period on appeal, no single service-connected disability has rendered the Veteran unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. For the period from October 15, 2012, to August 4, 2013, the criteria for a rating of 30 percent for migraine headaches have been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8100 (2018). 2. From August 4, 2013, the criteria for a rating greater than 50 percent for migraine headaches have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DC 8100 (2018). 3. The criteria for entitlement to TDIU based solely on service-connected migraine headaches have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2018). 4. The criteria for Entitlement to TDIU based solely on service-connected or service-connected PTSD with MDD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from January 1991 to October 1991 including service in Southwest Asia. A July 2018 Board determination, in relevant part, granted entitlement to TDIU based on the Veteran’s service-connected migraine and PTSD symptoms and granted entitlement to an increased rating of 50 percent for migraine headaches, effective August 4, 2013. The Veteran appealed portions of the July 2018 Board decision to the United States Court of Appeals for Veterans Claims and in a May 2019 Joint Motion for Partial Remand (JMR) the parties requested that the Court vacate those parts of the July 2018 Board decision that denied “(1) a rating in excess of 50% for migraine headaches effective August 4, 2013; and (2) a total disability rating based on individual unemployability (TDIU) based on migraine headaches and/or posttraumatic stress disorder (PTSD) with major depressive disorder (MDD) alone,” and to remand the issues to the Board. A June 2019 Order from the Court granted the JMR. As will be discussed in greater detail below, although the JMR requested the vacatur of the increased rating issue for migraine headaches from August 4, 2013, the body of the JMR found error solely in the Board’s failure to consider whether an effective date prior to August 4, 2013, was warranted for the assigned 50 percent rating. As the entire increased rating issue for the period prior to August 4, 2013, was vacated, the Board will readjudicate that herein. As to the period prior to August 4, 2013, although the issue was styled in the JMR as entitlement to an effective date prior to August 4, 2013, for the assignment of a 50 percent rating, as the law and evidence demonstrate that the issue really is one for an increased rating the issue has been restyled as listed above. As to the TDIU issue, although the JMR initially listed the TDIU question as a single issue, in the body of the discussion the JMR repeatedly discussed the migraine and PTSD questions as being separate issues and for the sake of clarity the Board has separated the issues herein. Finally, the Board recognizes that in November 2018, the Veteran appealed a September 2018 rating decision that granted entitlement to TDIU, effective August 1, 2011. The Veteran requested an earlier effective date. The Board finds that this appeal does not fall under the auspices of Rice v. Shinseki, 22 Vet. App. 447 (2009), (holding that a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but is rather part of the adjudication of a claim for increased compensation) because the effective date at issue in the notice of disagreement is prior to the appellate time period for the increased rating claim for migraines at issue before the Board. As such, the issue of entitlement to TDIU for the period prior to August 1, 2011, will not be addressed further herein. Increased Rating 1. Entitlement to a compensable rating for migraine headaches prior to August 4, 2013 2. Entitlement to an increased rating greater than 50 percent for migraine headaches from August 4, 2013 Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). Separate DCs identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2018). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2018). The Veteran’s entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2018). VA must consider whether the Veteran is entitled to “staged” ratings to compensate when his or her disability may have been more severe than at other times during the course of his or her appeal. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2018). The critical element in permitting the assignment of several ratings under various DCs is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Veteran contends that his service-connected migraine headaches warrant a rating of at least 50 percent prior to August 4, 2013. Although no specific argument has been advanced, the Board also will consider the propriety of an increased rating greater than 50 percent for the migraine headaches for the period from August 4, 2013. Under DC 8100, migraines are evaluated as follows: a 50 percent rating is assigned with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 30 percent rating is assigned with characteristic prostrating attacks occurring on an average once a month over last several months. A 10 percent rating is warranted with characteristic prostrating attacks averaging one in 2 months over the last several months. From August 4, 2013 In an August 4, 2013 emergency department note, the Veteran reported migraine headaches from the night before causing nausea and photophobia, with a pain at an 8 out of 10. Likewise, in an October 2013 record, it shows the Veteran had worsening headaches, chronic non-radicular. In October 2013, the record showed the Veteran had migraine headaches with nausea and vomiting. Likewise, in an April 2014 record, the Veteran reported to the emergency room with a 24-hour migraine with nausea and photophobia. Again, in a May 2014 record, the Veteran complained of migraines to the posterior aspect of scalp. He stated he usually got headaches 3 to 4 times a month. Quality was sharp with an intensity of 10 out of 10, with some nausea and photophobia. Vision was blurred and the Veteran felt dizzy. In a December 2014 statement, the Veteran reported that his recurrent headaches caused him to “shut down” and making him incapable of normal movement, speech, and tolerance of light and noise. The headaches included nausea and vomiting and occurred two to three times per month lasting hours to several days. He reported having to seek treatment in an emergency room on many occasions including most recently in November 2014. In a September 2016 VA examination, the Veteran experienced pulsating or throbbing head pain, on both sides that worsened with physical activity. His migraines manifested with nausea, sensitivity to light, sensitivity to sound and changes in vision. The duration of the head pain would last less than one day. He reported characteristic prostrating attacks of migraine pain. The examiner indicated that the Veteran did not have very prostrating and prolonged attacks of migraines productive of severe economic inadaptability. Likewise, the frequency on average of the Veteran’s attacks were indicated to be less frequent, but the Veteran reported these attacks occur 2 to 3 times per week and reported that in the past year he has been to the emergency room for his migraines. Additionally, in a statement from the Veteran’s attorney, the Veteran reported headaches of a severe nature three to four times per month, requiring rest and isolation in a dark room often lasting for several days. As the Veteran is in receipt of the highest rating for his migraines under DC 8100 for the period from August 4, 2013, the Board has considered whether a higher or separate rating is warranted under another DC. That said, the Board finds that the Veteran’s symptoms are best reflected and contemplated by the criteria under DC 8100, which specifically provides for disability ratings for migraine headaches to include economic inadaptability. As the Veteran has not reported symptoms not contemplated in the current rating criteria, the Board finds that a separate or higher rating under another DC or on an extraschedular basis is not warranted. Prior to August 4, 2013 In addition, as instructed by the JMR the Board has considered whether an effective date prior to August 4, 2013, is warranted for the Veteran’s headaches. Specifically, the JMR directed the Board to consider the Veteran’s submission of a VA Form 21-8940, Application for Increased Compensation Based on Unemployability in June 2014 and within one year of the September 2013 rating decision that granted entitlement to service connection for headaches. If the June 2014 submission “included the submission of new and material evidence, 38 C.F.R. § 3.156(b) requires that any subsequent decision based on such evidence relate back to the original claim.” The effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2018). An exception to that rule applies, however, under circumstances where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. In such an instance, the law provides that the effective date of the award “shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.” 38 U.S.C. § 5110(b)(2); see also 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125 (1997). For the time period at issue, a “claim” was defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Appellate review of a rating decision was initiated by a notice of disagreement (NOD) and completed substantive appeal after a Statement of the Case (SOC) was furnished. 38 U.S.C. § 7105(a); 38 C.F.R. § 20.200. Failure to perfect an appeal rendered a rating decision final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103. The above notwithstanding, 38 C.F.R. § 3.156(b) stated: New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of § 20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. The JMR raised the argument that a June 2014 VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, included new and material evidence within one year of the September 2013 rating decision that granted entitlement to service connection for headaches and assigned a noncompensable rating, effective October 15, 2012. Specifically, the TDIU application included the Veteran’s assertion that “due to my severe pain regarding my migraines…” it was almost impossible to complete daily chores. The Board accepts that the June 2014 statement could constitute new and material evidence under 38 C.F.R. § 3.156(b). As such, the Board will consider whether a compensable rating was warranted for the period from October 15, 2012 (the date of the Veteran’s claim to reopen a prior finally denied claim) and August 4, 2013. In the period shortly before the appellate time period, during a March 2011 VA traumatic brain injury examination, the Veteran reported recurrent headaches on an intermittent basis, usually 2 or 3 per month. In the past week or two, however, the headaches had been more frequent. No triggers for the headache were identified, although there occasionally was light, noise, and/or sound sensitivity during the headache. The Veteran occasionally experienced nausea. The headache pain included bitemporal pain with squeezing or throbbing sensation and left hemicranial distribution of the headache. In a March 2011 VA treatment record, the Veteran reported headaches lasting for 2 to 3 days at a time that were not relieved by medication and that he had been having problems waking up with a headache. In December 2011, the Veteran reported migraine headaches “off and on.” The Veteran was afforded a VA examination in June 2012. At that time, the Veteran reported 2 headaches per month, each lasting 2 to 3 days. Sometimes there was associated nausea and sometimes he would go to the emergency room for treatment. The examiner concluded that the migraines described did not constitute very frequent prostrating and prolonged attacks of migraine headache pain. In August 2012, the Veteran denied any recent nausea or vomiting. During the applicable time period, VA treatment record document chronic headaches. In October 2012, the Veteran was seen in the emergency room for a migraine headache. The evidence indicates that he sought treatment because he had run out of medication and that the headache was similar in nature to his ongoing headaches. At a treatment visit the next day, the Veteran reported that there had been nausea associated with the migraine the previous day, but that the headache had improved. The Veteran again sought treatment at the emergency room in November 2012 for a migraine headache with nausea. The next day, the Veteran also reported a migraine headache that was an 8 out of 10. In March 2013, the Veteran sought treatment at a VA emergency department for a migraine with light and noise sensitivity and nausea without vomiting. In June 2013, the Veteran reported that sometimes he would take a tablet combining acetaminophen, butalbital, and caffeine at headache onset in an attempt to preempt the headache. The prescription permitted the medication to be taken up to once per day. In light of the foregoing evidence, the Board concludes that for the period from October 15, 2012, to August 4, 2013, that a 30 percent rating is warranted. In that approximately 10-month period, the evidence indicates that the Veteran sought treatment in the emergency room on about 3 occasions. The Veteran stated that on occasions when he experienced nausea that he would seek emergency treatment for the headache and associated nausea. That said, during the June 2012 VA examination, the Veteran reported 2 headaches per month that the examiner defined as prostrating. As there is no specific evidence that the Veteran’s headache symptoms improved from the time of the June 2012 VA examination, the Board finds that a 30 percent disability rating is warranted under DC 8100 based on prostrating headaches occurring at least monthly. The Board finds insufficient evidence of a greater frequency of prostrating attacks for the period from October 15, 2012, to August 4, 2013, to warrant a rating greater than 30 percent. During his August 4, 2013, treatment visit on which the 50 percent disability rating is based, the Veteran reported that until that most recent incident that his headaches had generally been improving in frequency and severity. That statement is supported by the Veteran’s assertions in June 2013 that he took his prescribed headache medication “sometimes” which certainly does not support a finding of very frequent completely prostrating and prolonged attacks. In addition, in his October 2015 notice of disagreement form the Veteran specifically argued that his headache symptoms worsened effective August 4, 2013. Given the foregoing and the absence of contemporaneous evidence supportive of very frequent prostrating attacks, the Board does not find that the rating criteria for 50 percent under DC 8100 for the period prior to August 4, 2013, are met or approximated. Thus, based on the combination of evidence shortly prior to and during the appellate time period, the Board finds that a 30 percent rating, but no higher, is warranted for the period from October 15, 2012, to August 4, 2013. As with the period from August 4, 2013, and discussed in greater detail above, the Board finds no basis for assigning separate or higher ratings for the Veteran’s headaches prior to August 4, 2013, based on any other DC. TDIU 3. Entitlement to a total disability rating based on individual unemployability (TDIU) based solely on service-connected migraine headaches 4. Entitlement to TDIU based solely on service-connected PTSD with MDD As noted above, the Board granted entitlement to TDIU in its July 2018 decision. As the JMR explained, the remaining issue is whether TDIU is warranted for any period on appeal based solely on the Veteran’s service-connected PTSD with MDD or based solely on his migraine headaches as a means to granting the Veteran statutory special monthly compensation (SMC) benefits under 38 U.S.C. § 1114(s). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran 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, such disability shall be ratable as 60 percent or more, and 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. 38 C.F.R. § 4.16(a). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual Veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran’s master’s degree in education and his part-time work as a tutor). The sole fact that a claimant 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, however, is whether the Veteran 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, 363 (1993). In this case, a November 2003 VA treatment record indicated that the Veteran had been unemployed since April 2003. He had been working as a van driver for a supply company, but simply stopped showing up for work. In a November 2003 VA group therapy record, the Veteran had actively participated in the communication skills exercise and had participated in competitive play and had been able to work well with his team to answer questions given. The Veteran had demonstrated an enhanced mood state and increased focus skills as a result of participation. In October 2006, the Veteran reported that he had been working in plumbing and welding since leaving service and also had worked as a driver for a company. There is conflicting evidence as to the Veteran’s employment at that time. At one point, the Veteran stated that he was not working and was receiving disability benefits, but another VA treatment record from that month included the Veteran’s request for a note excusing him from work due to illness. Given the Veteran’s request for a letter excusing him from work, the Board will presume that the Veteran was employed at that time. A December 2011 VA PTSD examination is of record. The examiner found that the Veteran’s mental health symptoms resulted in occupational and social impairment with reduced reliability and productivity. The Veteran’s cocaine dependence was noted to have been in remission since 2006. The Veteran reported that he had not worked for a number of years. Before 2006 his unemployment was due to his addiction and after that it was due to physical problems and limitations, including his non service-connected bilateral knee, right hip, and back problems. The Veteran underwent a VA headache examination in June 2012. The Veteran reported 2 headaches per month, each lasting 2 to 3 days. Sometimes there was associated nausea and sometimes he would go to the emergency room for treatment. The examiner concluded that the migraines described did not constitute very frequent prostrating and prolonged attacks of migraine headache pain. The examiner concluded that the Veteran’s migraine headaches would not impact his ability to work. A June 2012 VA PTSD examination also is of record. The examiner indicated that the Veteran’s mental health symptoms resulted in occupational and social impairment with reduced reliability and productivity. The Veteran could not remember the last time he worked, but believed it was in the 1990s. Work history included welding and in housekeeping. On examination, the Veteran had an intact memory and good attention. Thought flow and content were appropriate. Reported symptoms included depressed mood, chronic sleep impairment, mild memory loss, and disturbances of motivation and mood. In June 2013, the Veteran was noted to be working with the IT department at a VA facility in Martinsburg, West Virginia. A June 2013 letter noted that the Veteran had to move out of his rented room due to no fault of his own, but that he had been taken in by a woman and her husband. A December 2013 medical clearance for compensated work therapy (CWT) through VA’s vocational rehabilitation program indicated that the Veteran had above-average mental abilities and average psycho-social adjustment. The Veteran also was noted to have been volunteering at the recreation center and desired to continue that as part of the CWT program. Another December 2013 record included the Veteran’s reports of past work that included as a taxicab driver and as a housekeeper at Howard University. That same month, the Veteran reported that he had many friends, that he had let some friends stay in his apartment, and also that he had friends that could help him move his stuff into a storage facility. Another record from December 2013 indicated that the Veteran had supportive family and/or friends. An additional December 2013 record discussed a friend with whom the Veteran shot pool. In January 2014, the Veteran reported past work as a door-to-door vacuum cleaner salesman and reported that his unemployment was due to substance abuse and his PTSD. He reported having been unemployed for the past 3 years. In April 2014, the Veteran was noted to be changing his VA vocational rehabilitation work schedule from full time to part time and that he did not appear to be motivated for work. In May 2014, the Veteran was noted to be working at a bowling alley as part of his VA vocational rehabilitation program. His workplace supervisor informed VA that the Veteran had left town and was not expected to return due to family issues. The record also noted that the Veteran’s last drug screen had been positive for cocaine. In a June 2014 conversation with a VA representative, the Veteran contended that all his service-connected disabilities were causing unemployability (that is, his PTSD, residuals from sinuses / scars, and headaches). In his June 2014 VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, the Veteran contended that due to “severe pain regarding my migraines and arthritis” that it was almost impossible for him to complete his daily chores. In a July 2014 VA PTSD examination report, the examiner concluded that the Veteran’s mental health symptoms resulted in occupational and social impairment with reduced reliability and productivity. The examiner remarked that while unemployed, the Veteran attributed the loss of his last job to addiction and was unsure if he wanted to seek employment in the community. The Veteran had performed well during his work placement with VA vocational rehabilitation. It appeared to the examiner that the Veteran’s unemployed status was volitional, rather than due to his service-connected PTSD. The Veteran was looking for a church, as he had recently moved to Roanoke, Virginia from the Washington D.C. area and had been involved in Narcotics Anonymous in the past, although he was unsure if he could volunteer at that time due to health issues with his son. The Veteran reported last having worked full time in about 2001, although he could not remember where he worked. He stated that he probably left the job due to addiction issues. On examination, memory appeared to be intact, he had good hygiene, and appropriate thought processes and content. In a December 2014 affidavit, the Veteran reported migraine headaches 2 to 3 times per month, with noise and light sensitivity. He also experienced nausea that 3 out of 5 times caused him to vomit. In the worst cases, the Veteran went to the emergency room for treatment, a total of about 15 times since the 1990s. In an October 2015 notice of disagreement form, the Veteran reiterated the symptoms from the December 2014 affidavit. In the September 2016 VA headache examination, the Veteran reported 2 to 3 headaches per week with nausea, but no vomiting. He also had blurry vision and light and sound sensitivity. The Veteran reported that he had not worked since 2003 and could not work due to his PTSD and migraine symptoms. As to the headaches, he had to isolate in a dark, quiet room during severe headaches. In an October 2019 affidavit, the Veteran alleged that when he last worked in 2004 that his migraines caused him to miss 5 to 6 work days per month and “This was not a sustainable schedule and I felt that my migraine headaches caused me to fall behind at work.” When he last worked in 2004, his PTSD symptoms “made it difficult to concentrate on the task at hand and to get tasks done efficiently and effectively. I found it difficult to get along with my coworkers because I was paranoid and did not trust them. On average, I missed approximately 10-12 days of work per month due to my posttraumatic stress disorder. Occasionally, I would have aggressive thoughts towards my coworkers. This was no conducive to maintaining employment.” In support of his claim, the Veteran submitted a December 2019 TDIU Vocational Assessment Report by a professional rehabilitation counselor who noted a record review and telephone conversation with the Veteran. As the counselor’s office is in a state distant from the Veteran’s residence, it is likely that no in person observation was made and there is no reference to any form of vocational testing. The Veteran reported to the counselor that he was living with his wife and reported worsening mental health symptoms since August 2011. The Veteran’s PTSD resulted in symptoms including flattened affect, frequent anxiety, chronic sleep impairment, suspiciousness, depressed mood, forgetfulness, impaired judgment, disturbances of motivation and mood, and interpersonal difficulties. The Veteran reported “immense relationship and interpersonal stress” that had worsened over time and that he tended to isolate himself and avoided social situations. The foregoing significantly affected his social life and relationship with his wife. The Veteran found it difficult to leave the house other than for doctor’s appointments. He avoided people and crowds and, as an example, did not go shopping for groceries. The Veteran had chronic depression and had difficulty completing simple tasks, such as maintaining personal hygiene. He reported that his wife reminded the Veteran if he went several days without a shower. The Veteran described “terrible” mood swings and that he found it hard to cope with his feelings. He found that talking to his wife helped at such times. The Veteran’s mental health symptoms prevented him from attending group PTSD therapy sessions. As to his migraines, the Veteran reported 2 to 3 migraines per week lasting from several hours to several days. During his headaches, the Veteran had immense sensitivity to light and sound. The severe headaches also required him to go to a quiet, dark room and wait for his symptoms to subside. The examiner indicated, “The veteran’s migraine headaches significantly impair the veteran’s ability to function consistently.” The Veteran indicated that his insurance would cover only 9 headache pills per month and that after he used all of them, he had to go to the emergency room when experiencing severe migraines. The other prescribed medication was not always effective in alleviating his headache pain. The Veteran’s migraines and PTSD made sleeping difficult. The headache pain and anxiety with racing and intrusive thoughts impaired his ability to fall asleep in a timely manner and remain asleep. The Veteran would doze off in his chair during the day for 20 to 30 minutes at a time. He reported that the PTSD, headaches, and fatigue in combination resulted in problems with memory and concentration. The Veteran would lose his train of thought in a conversation or when watching movies. He would misplace things and needed his wife’s assistance to find them. He lost focus while performing simple tasks. As to daily activities, the Veteran reported that he needed cues from his wife to shower and change his clothing due to severely impaired motivation due to his PTSD symptoms. The Veteran did a small amount of the housework and limited his driving when experiencing fatigue due to his PTSD and migraine symptoms. The Veteran had graduated from high school and had attended welding and bartending schools. He reported that last worked in 2004 when “his PTSD symptoms and chronic migraine headaches made it difficult to concentrate on tasks and complete tasks efficiently and accurately. Throughout his vocational history, the veteran found it difficult to get along with his coworkers because of his suspiciousness, hypervigilance, and distrust of others. [The Veteran] admitted he would occasionally have aggressive thoughts toward his coworkers. On average, he estimated he missed approximately 5 to 6 days of work per month due to his PTSD and 6 to 8 days of work per month due to his migraine headaches.” The Veteran had most recently worked in a warehouse as a forklift operator for 6 to 7 years. The Veteran used a forklift to unload trucks in the shipping and handling department and that he was unable to interact with his coworkers at the job. He resigned because the loud noises in the warehouse exacerbated his PTSD. The Veteran also had worked as a delivery driver for a few years delivering blueprints. He worked in isolation in the job but quit due to significant issues with his migraines. The counselor concluded that it was “at least as likely as not the veteran has been unable to secure and follow substantially gainful employment, to include both skilled and unskilled sedentary work, since at least August 2011 due to each of these conditions singularly and not in combination with each other.” The counselor felt that the Veteran’s PTSD symptoms would require unscheduled breaks, excessive absences, and difficulty concentrating that would not be tolerated “by any employer at any skill level.” In addition, “one to two absences on a consecutive month basis will not be tolerated in the competitive workforce” and that the Veteran would exceed those thresholds. In addition, “The veteran’s immense difficulty maintaining productivity expectations and consistent reliability are demonstrated by his prior work. [The Veteran] last worked in 2004, at which point his PTSD made it difficult to concentrate and complete tasks. He also had immense difficulty interacting appropriately with coworkers. The veteran had excessive absences due to his service-connected PTSD and was frequently tardy and/or left early due to his PTSD.” The examiner indicated that there were no areas of work that would allow an individual to work in complete isolation and that his impaired sleep patterns affected his ability to maintain concentration and focus on a daily basis. In light of the foregoing, the Board does not find that the Veteran’s TDIU could be awarded based solely on either his service-connected PTSD with MDD or his migraine headaches. Migraine Headaches As to the migraine headaches, until August 4, 2013, evidence demonstrates that the Veteran had 2 migraines per month with some associated nausea. The lay and medical evidence, however, does not suggest that the migraine affected the Veteran’s ability to work during this period. As noted above, in December 2011 the Veteran attributed his unemployment prior to 2006 on cocaine dependence, which had been in remission from that time, and from 2006 on non-service-connected orthopedic problems. In addition, the June 2012 VA examiner indicated that the migraines had no effect on the Veteran’s employment status. From August 4, 2013, there is evidence of worsening migraine headaches, as discussed in the sections above. The Veteran has reported symptoms as bad as 2 to 3 headaches per week with nausea, but no vomiting, as well as blurry vision and light and sound sensitivity. The headaches could last for extended periods of time. Clearly, such symptoms would adversely affect work performance. That said, the evidence demonstrates that in 2014 the Veteran was able to work at a bowling alley as part of VA’s vocational rehabilitation program and it has been noted that he performed very well in that job. The Veteran did not lose employment due to his migraine headaches, but due to some combination of lack of motivation and family problems that caused the Veteran to leave the area. Given the Veteran’s reported headache symptoms at the time of his employment at the bowling alley with good job performance, the Board finds nothing to suggest that his migraine headache symptoms would have subsequently precluded his ongoing employment there or in a similar environment. The Board has considered the December 2019 TDIU assessment submitted by the Veteran in support of his claim. The Board finds this counselor’s telephone interview and opinion of limited probative value in that the opinion concluded that the Veteran’s migraine headache symptoms alone precluded obtaining or maintaining employment from August 2011. Such a conclusion clearly is inconsistent with the contemporaneous lay and medical evidence, discussed above, which all consistently attributed the Veteran’s lack of employment to non-service-connected physical problems and not to his headache symptoms. Moreover, there are reports in the record that the Veteran did engage in types of employment since 2004. The December 2019 opinion failed to reconcile that evidence with the conclusion reached. The Board also finds troubling the conclusion of the December 2019 opinion that employers would be unwilling to accommodate an individual missing more than 1 or 2 days a month when the Veteran has sworn in an affidavit that he missed numerous days per month during his prior employment and there is no evidence that he had been terminated or even disciplined for those absences. Indeed, the evidence indicates that in his last period of employment in 2014 the Veteran performed very well until he left the job due to some combination of lack of motivation and family problems that resulted in the Veteran leaving the area. Further, the counselor makes no mention of federal law that requires employers to provide accommodations for persons with disabilities as would be expected of a rehabilitation expert. Such reports are entirely inconsistent with the Veteran’s migraine headache symptoms being the cause of him leaving employment or preventing the Veteran from obtaining other employment. Based on the evidence of record, the Board finds that the Veteran’s awarded TDIU cannot be based solely on his service-connected migraine headaches. PTSD with MDD As to the Veteran’s mental health disability, the early evidence of record, including the December 2011 VA PTSD examination, indicated that the Veteran’s ongoing unemployment was due to a combination of non-service-connected physical problems, as his cocaine dependence had been in full remission since 2006. There is evidence that the Veteran had a relapse in 2013, but generally the cocaine dependence has been in remission for many years. Thus, the Veteran’s PTSD with MDD clearly had an effect on his employment but was not the sole basis for his employment for the early period on appeal. In 2013 and 2014 the evidence indicates that the Veteran worked with a VA IT department and at a bowling alley. The Veteran apparently performed very well while in the CWT program. When the Veteran ultimately left employment, the record indicates that it was due to a family-related issue, rather than due solely to his PTSD with MDD symptoms. There may have been some element of lack of motivation to work or to seek further jobs, but the record is clear that once in the position the Veteran performed well at the jobs or at least well enough to maintain employment. There is nothing to suggest a worsening solely of PTSD with MDD symptoms from 2013 and 2014 that would preclude the Veteran from obtaining and maintaining employment. The Veteran reported that during his prior employment he missed numerous days and/or left work early due to his mental health symptoms, had difficulty interacting with others, had thoughts of doing harm to his fellow employees, and other symptoms attributable to his PTSD with MDD. That said, there is no evidence suggesting that the Veteran’s employment was in peril prior to his separation. The lay and medical evidence of record generally agrees that for his employment prior to 2006 the Veteran left due to cocaine dependence, which has been in almost constant remission since 2006. Otherwise, the Veteran initially reported lack of work due to non-service-connected orthopedic problems. The Veteran left work in 2013 and 2014 due in part to a lack of motivation, but also due to family problems that have not been attributed to his PTSD with MDD. To the extent that the Veteran now contends that he missed numerous periods of work due to his PTSD with MDD and otherwise had issues at work due to his mental health symptoms, there is no suggestion that the Veteran’s employers threatened termination or even disciplinary measures due to the issues associated with his PTSD with MDD. Again, the more contemporaneous lay and medical evidence of record indicated that the Veteran had performed well at more than one of his prior jobs and was able to maintain employment despite his mental health symptoms. The Board acknowledges the December 2019 counselor’s TDIU assessment; however, the Board finds that opinion of limited probative value in that the opinion concluded that the Veteran’s PTSD with MDD symptoms alone precluded obtaining or maintaining employment from August 2011. Such a conclusion clearly is inconsistent with the contemporaneous lay and medical evidence, which all consistently attributed the Veteran’s lack of employment to non-service-connected physical problems and not to his mental health symptoms after his cocaine dependence went into remission. The December 2019 opinion failed to reconcile that evidence with the conclusion reached for the same shortcomings as noted above. The Board also finds troubling the conclusion of the December 2019 opinion that employers would be unwilling to accommodate an individual missing more than 1 or 2 days a month when the Veteran has sworn in an affidavit that he missed numerous days per month during his prior employment and there is no evidence that he had been terminated or even disciplined for those absences. Based on the evidence of record, the Board finds that the Veteran’s awarded TDIU cannot be based solely on his service-connected PTSD with MDD. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. J. Houbeck, 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.