Citation Nr: 20046802 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 16-52 051 DATE: July 13, 2020 ORDER Entitlement to an increased 30 percent rating for residual traumatic headaches is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. Entitlement to service connection for an acquired psychiatric disorder is reopened. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and adjustment disorder, is denied Entitlement to nonservice-connected pension is denied. FINDINGS OF FACT 1. The Veteran experienced residual traumatic headaches with characteristic prostrating attacks occurring on an average of once a month, but not very frequent completely prostrating and prolonged attacks productive of severe economic adaptability. 2. The Veteran did not meet the schedular percentage standards of 38 C.F.R. § 4.16 (a) and the weight of the evidence is against finding that service-connected disabilities render him unable to obtain or maintain gainful employment. 3. The RO denied service connection for PTSD in an unappealed May 2006 decision. 4. New and material evidence has been received to reopen service connection for an acquired psychiatric disorder. 5. The Veteran does not have a diagnosis of PTSD. Adjustment disorder is not etiologically related to service. 6. The Veteran’s nonservice-connected disabilities do not render him unemployable, nor are they sufficient to render it impossible for an average person to follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an increased 30 percent disability rating for residual traumatic headaches are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100. 2. The criteria for entitlement to TDIU due to service-connected disabilities are not met. 38 U.S.C. §§ 1110, 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16(a),(b). 3. The May 2006 decision denying service connection for PTSD is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 4. The evidence received after the May 2006 decision is new and material to reopen service connection for an acquired psychiatric disorder. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156 (a), 3.303, 20.1105. 5. The criteria for service connection for an acquired psychiatric disorder, to include PTSD and adjustment disorder, are not met. 38 U.S.C. §§ 1110, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 6. The criteria for entitlement to nonservice-connected pension based on permanent and total disability are not met. 38 U.S.C. §§ 101 (33), 1521, 5303A; 38 C.F.R. §§ 3.2 (f), 3.3. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1974 to July 1978 and from October 1990 to May 1991. He testified before the undersigned Veterans Law Judge during an April 2020 Board video conference hearing. The hearing transcript is of record. During April 2020 the hearing, the Veteran raised a claim for a TDIU as part of his increased rating claim for service-connected headaches. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board has recharacterized the appeal for service connection for PTSD and for adjustment disorder with anxious distress as a single claim for service connection for an acquired psychiatric disorder, to include PTSD and adjustment disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). 1. Entitlement to an increased rating for residual traumatic headaches The Veteran contends that he is entitled to a higher rating for service-connected residual traumatic headaches, currently rated under Diagnostic Code 8100. Migraine headaches are rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100, for migraine. A 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 50 percent rating is the highest schedular rating under DC 8100. The rating criteria of DC 8100 are considered successive, meaning that a claimant cannot fulfill the criteria of the higher rating without fulfilling those of the next lower rating. Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). This renders 38 C.F.R. §§ 4.7 and 4.21 inapplicable. Johnson, 30 Vet. App. at 252. The descriptive phrase “very frequent” connotes a frequency at least greater than once a month, as is required by the rating criteria corresponding to a lesser 30 percent rating. Johnson, 30 Vet. App. at 253. The phrase “completely prostrating” generally means that the migraines attack must render the veteran entirely powerless. Id. The completely prostrating attacks must also be “prolonged,” which is defined as “to lengthen in time: extend duration: draw out: continue, protract.” Id. Lastly, the 50 percent rating criteria requires that the very frequent completely prostrating and prolonged attacks be “productive of severe economic inadaptability.” Productive can be read as having either the meaning of “producing” or “capable of producing,” and, with regard to severe economic inadaptability, nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). The weight of the evidence shows that the Veteran has had residual traumatic headaches with characteristic prostrating attacks occurring on average once a month over the last several months, corresponding to the criteria for a higher 30 percent rating under DC 8100. A March 2019 VA examination identified residual traumatic headaches, described as severe. The Veteran experienced headache pain, changes in vision, and dizziness for a few seconds when standing from a sitting position. The examiner stated that the Veteran had daily typical headache pain, and characteristic prostrating attacks of headache pain, or migraines, once every month. The examiner reported that the Veteran did not have very prostrating and prolonged attacks of migraine or non-migraine pain productive of severe economic adaptability. The Veteran reported that headaches made him fatigue, feel ill, and would prevent him from going to work, or he would have to leave work. Headaches affected concentration, interfered with productivity when he missed work, and affected employers’ desire to keep him on board. VA treatment records show that the Veteran was seen once in 2018 for chronic headaches, treated with Tylenol. During April 2020 Board hearing testimony, the Veteran indicated that he had symptoms of dizziness, visual changes, and nausea with headaches. He would go in a room to lay down. He indicated that this occurred two to three times a month, but reported that his head hurt almost every day. The Veteran is competent to report his readily observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). There is, however, conflicting evidence with regard to the frequency of his more severe headaches. The VA examiner reported that the Veteran had characteristic prostrating attacks of headache pain once every month. Conversely, the Veteran testified that he had to lay down due to headaches two to three times a month. The Board finds that the inconsistencies between the Veteran’s report during the VA examination and his later testimony diminish the credibility of his self-report. Considering all relevant evidence of record, the Board finds that the weight of the evidence shows that the Veteran had had characteristic prostrating attacks of headache pain once every month with more frequent typical headaches, but not very prostrating and prolonged attacks productive of severe economic adaptability. The Board finds that the VA examination provides the more probative evidence with regard to the frequency and severity of the Veteran’s headaches, as it was based on a review of the record, examination of the Veteran, and the examiner clearly address all of the relevant rating criteria. Accordingly, the Board finds that a higher 30 percent rating is warranted under DC 8100 for the entire appeal period. A higher 50 percent rating under DC 8100 is not warranted unless there are migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. While the Veteran is competent to report the frequency of his headaches, testimony does not establish that his severe headaches were both very prostrating and prolonged, nor were they shown productive of severe economic adaptability. The duration of the headaches was not reported by the Veteran, and the March 2019 VA examiner clearly opined that he did not have very prostrating and prolonged attacks of migraine or non-migraine pain productive of severe economic adaptability. Thus, the Board finds that the Veteran did not have headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability at any time during the appeal period. Thus, the next higher 50 percent rating is not warranted under DC 8100. 2. Entitlement to a TDIU Total disability ratings for compensation may be assigned if 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 a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Pursuant to this decision, the Board has granted an increased 30 percent rating for residual traumatic headaches from July 22, 2013. The Veteran is also service connected for tinnitus, rated at 10 percent from January 12, 2019, and bilateral hearing loss, rated as noncompensable. He had a 30 percent rating from prior to January 12, 2019, and a combined 40 percent rating from January 12, 2019. See 38 C.F.R. § 4.25. The Veteran did not meet the schedular percentage standards of section 4.16 (a). Even when the percentage requirements are not met, entitlement to a total rating, on an extraschedular basis, may nonetheless be granted, in exceptional cases, when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §§ 3.321 (b), 4.16 (b). Although the Board cannot assign an extraschedular TDIU in the first instance, it is not precluded from specifically adjudicating whether to refer a case for an extraschedular evaluation when the issue is either raised by the claimant or is reasonably raised by the record. See Wages v. McDonald, 27 Vet. App. 233, 236 (2015). The Board finds that referral of a TDIU to the Director of Compensation Service for extraschedular consideration under section 4.16(b) is not warranted. Evidence of record does not indicate that the Veteran is unemployable due to service-connected disabilities. A May 2019 VA examination shows that the Veteran had daily typical headaches and characteristic prostrating attacks of headache pain once every month. The Veteran did not have very prostrating and prolonged attacks productive of severe economic adaptability. While the Veteran was unemployed at the time of the examination, he reported that headaches would prevent him from going to work, or he would have to leave work. He lost two to four weeks of work a year. Headaches affected concentration, interfered with productivity when he missed work, and affected employers desire to keep him on board. A February 2019 VA examination shows that hearing loss and tinnitus resulted in difficulty hearing conversation and the Veteran often had to tell people to repeat themselves. The Board finds that missed work days during prostrating and prolonged attacks of headache pain, occurring once a month on average, with the more frequent typical headaches, loss of productivity due to missed work, and difficulty with hearing are all symptoms which are contemplated by the Veteran’s assigned ratings for headaches, hearing loss, and tinnitus. The Veteran is not shown to be unemployed due to his service-connected disabilities alone. The evidence does not indicate significant occupational impairment due to headaches, hearing loss, and tinnitus, and does not reflect an unusual or exceptional disability picture due to the service-connected disabilities to warrant referral for consideration under 38 C.F.R. § 4.16 (b). There is nothing in the record to show that the Veteran’s service-connected headaches, hearing loss, and tinnitus cause impairment with employment over and above that which is contemplated in the assigned schedular ratings. The Board finds, therefore, that referral for a TDIU for consideration under 38 C.F.R. § 4.16 (b) is not warranted and the appeal for a TDIU is denied. 3. Whether new and material evidence has been received to reopen service connection for an acquired psychiatric disorder, claimed as PTSD The Board is required to determine whether new and material evidence has been received before it can reopen a claim and readjudicate service connection or other issues on the merits. See Barnett v. Brown, 83 F.3d 1380, 1383-1384 (Fed. Cir. 1996). In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The RO previously denied service connection for a PTSD in March 1995, April 2006, and May 2006 rating decisions because evidence of record did not show a diagnosis of PTSD. The Veteran did not appeal March 1995, April 2006, and May 2006 rating decisions or submit relevant evidence within one year of notice of the denials. Therefore, those decisions became final. Evidence received since the May 2006 rating decision includes VA treatment records, and April 2018 VA PTSD examination showing a diagnosis of adjustment disorder with anxious distress, and lay statements and testimony. The Board finds that the new evidence identifies a currently diagnosed acquired psychiatric disorder. Accordingly, the Board finds that new and material evidence has been received to reopen service connection for an acquired psychiatric disorder. See 38 C.F.R. § 3.156. As the Regional Office reopened and considered the appeals for PTSD and adjustment disorder on the merits, the Board may proceed with adjudication without prejudice to the Veteran. 4. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and adjustment disorder is remanded. The Veteran contends that an acquired psychiatric disorder, to include PTSD, is due to his Gulf War deployment. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). In adjudicating a claim for service connection for PTSD, the Board is required to evaluate evidence based on places, types, and circumstances of service, as shown by the veteran’s military records and all pertinent medical and lay evidence. Hayes v. Brown, 5 Vet. App. 60, 66 (1993); see also 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.304 (f). The evidence necessary to establish the occurrence of an in-service stressor for PTSD will vary depending on whether or not the veteran “engaged in combat with the enemy.” Id. If VA determines that a veteran engaged in combat with the enemy and that the alleged stressor is related to combat, then the veteran’s lay testimony or statements are accepted as conclusive evidence of the occurrence of the claimed stressor. 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (f). No further development or corroborative evidence is required, provided that the claimed stressor is “consistent with the circumstances, conditions, or hardships of the veteran’s service.” Id. If, however, VA determines that the veteran did not engage in combat with the enemy or that the alleged stressor is not related to combat, the veteran’s lay testimony by itself is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain service records or other evidence to corroborate the veteran’s testimony or statements. See Moreau v. Brown, 9 Vet. App. 389, 394 (1996). The question of whether a veteran was exposed to a stressor in service is a factual one, and VA adjudicators are not bound to accept uncorroborated accounts of stressors or medical opinions based upon such accounts. Wood v. Derwinski, 1 Vet. App. 190 (1991), aff’d on reconsideration, 1 Vet. App. 406 (1991). Hence, whether a stressor was of sufficient gravity to cause or support a diagnosis of PTSD is a question of fact for medical professionals and whether the evidence establishes the occurrence of stressors is a question of fact for adjudicators. If a stressor claimed by a veteran is related to the veteran’s fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran’s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304 (f)(3). The Veteran has a current diagnosis of adjustment disorder with anxious distress, shown by an April 2018 VA examination. While the Veteran has also been diagnosed with alcohol dependence and substance abuse, service connection is not possible for primary drug or alcohol abuse. Service connection may only be granted if such abuse is secondary to a service-connected disability. See 38 U.S.C. § 105; Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001); 38 C.F.R. §§ 3.1 (m), 3.301(d). During the April 2019 VA examination, in lay statements, and a May 2019 substantive appeal, the Veteran reported in-service stressors which include hearing bombs overhead, being under the attack of scud missiles, witnessing dead body parts, and driving through areas with potential improvised explosive devices, as well as post-service stressors related to a prolonged incarceration. The Board finds that the reported in-service stressors are consistent with the circumstances of the Veteran’s service and are related to a fear of hostile military and terrorist activity. However, the Veteran does not have a diagnosis of PTSD provided by a VA or private psychiatrist or psychologist related to the identified stressors, nor does the evidence of record otherwise confirm a diagnosis of PTSD. Service treatment records do not identify any psychiatric problems in service, and a Report of Medical History completed at separation in April 1991 shows that the Veteran denied having depression or nervous trouble. Post-service VA treatment records show that the Veteran was released from treatment for cocaine abuse in December 1991. The treatment provider noted that the onset of this abuse preceded his deployment. While the Veteran did not meet the criteria for PTSD, he had been having readjustment difficulties. He was seen on one other occasion for readjustment counseling that same month but did not receive continuing treatment. A June 1993 treatment report shows that the Veteran presented for his third admission for drug treatment. His first treatment was in 1989. The Veteran was diagnosed with cocaine dependence, alcohol abuse, dysthymia, and a personality disorder. Two VA mental health examinations were completed in December 1993. An initial examination diagnosed dysthymia, cocaine dependence, and alcohol dependence. The Veteran did not have significant symptomatology of PTSD, and the examiner indicated that he wished to review the psychological testing report before coming to a conclusion as it would relate to PTSD. During a second VA examination completed in December 1993, the Veteran identified stressors related to driving in a combat area near a missile attack. Psychological testing was completed. However, extreme elevation on the Validity Scale Profile of the MMPI-2 reflected ready endorsement of most severe and wide-ranging pathology to the degree that the Veteran’s clinical profile could not be interpreted as a valid reflection of specific symptoms. Moreover, the severity and breath of symptoms reported on the MMPI-2 were not consistent with the Veteran’s behavioral presentation. The VA examiner found that the Veteran’s current symptoms were not sufficient for a diagnosis of PTSD. The Veteran was diagnosed with alcohol dependence, in partial remission; cannabis dependence, in remission; and cocaine dependence, in remission. An August 1994 treatment note from Family Health Care Clinic noted a possible diagnosis of paranoid schizophrenia, and indicated the Veteran was possibly sociopathic. A full psychiatric evaluation was recommended, but does not appear to have been completed. Mississippi Department of Correction records associated with the record do not reflect mental health or psychiatric treatment. The Veteran was seen at VA for alcohol and substance abuse rehabilitation in 2018. A July 2018 substance use/PTSD treatment program evaluation report completed by a social worker indicates that the Veteran had symptoms of PTSD. The evaluation, however, was not completed or signed by a psychologist, psychiatrist, or qualifying health care provider, and did not confirm a diagnosis of PTSD. An April 2018 VA examiner found that the Veteran’s symptoms did not meet the criteria for a diagnosis of PTSD. Instead, he was diagnosed with adjustment disorder with anxious distress, related to his post-service incarceration from 1996 to 2017. The weight of the evidence shows that the Veteran does not have a diagnosis of PTSD. While the July 2018 social work note identified some symptoms of PTSD, a diagnosis of PTSD as not been confirmed by a psychiatric evaluation or psychological testing, and an April 2018 VA examiner found that the Veteran did not meet the criteria for a current PTSD diagnosis. Given questions as to the validity of the Veteran’s self-report as to the scope and the severity of his symptoms shown by psychological testing in December 1993, the Board finds that the opinion rendered by the April 2018 VA examiner based on a comprehensive psychological evaluation, provides the most probative evidence as to the Veteran’s diagnoses and the etiology of his diagnoses. The Veteran’s currently diagnosed adjustment disorder with anxiety was not incurred in service. Service treatment records do not reflect any psychiatric treatment or complaints in service and the evidence of record does not identify a nexus between current adjustment disorder and service. Instead, an April 2018 VA examiner opined that the Veteran’s adjustment disorder was related to his prison release and adjustments. The Board finds that the opinion and rational, which related adjustment disorder to post-service incarceration, is probative as it was based on a review of the record and examination of the Veteran. In that regard, during the examination, the Veteran reported that people get beat up in prison all the time, and that he got into it in prison a lot, noting that there was plenty of violence, and a December 2017 VA treatment report shows that the Veteran had anxiety related to his incarceration of over 20 years. The April 2018 VA examiner noted that the Veteran had overlapping symptoms of headaches and anxiety, and the examiner indicated that headaches were a symptom of the Veteran’s psychiatric disability. While the Veteran’s representative contends in a April 2020 statement that the examination showed that the Veteran’s headaches were intertwined with his psychiatric disability, citing regulations for secondary service connection, the Veteran is already service connected for residual traumatic headaches (related to a head injury in service), and the April 2018 VA examiner attributed the Veteran’s headaches to the psychiatric condition, not the other way around. Thus, the Board finds that the examination did not raise a claim for secondary service connection. The Veteran does not have a diagnosis of PTSD and currently diagnosed adjustment disorder is not etiologically related to service. Accordingly, service connection for an acquired psychiatric disorder is not warranted. 5. Entitlement to nonservice-connected pension For VA pension purposes, all veterans who are basically eligible and who are unable to secure and follow a substantially gainful occupation by reason of disabilities which are likely to be permanent shall be rated as permanently and totally disabled. 38 C.F.R. § 3.17. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a). Permanent total disability ratings for pension purposes are authorized for disabling conditions not the result of the veteran’s own willful misconduct whether or not they are service connected. 38 C.F.R. § 3.342. For the purpose of pension, the permanence of the percentage requirements of § 4.16 is a requisite. 38 C.F.R. § 4.17. Generally, 38 C.F.R. § 4.16 (a), provides that total disability ratings 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 disability provided that, if there is only one such disability, this disability is ratable at 60 percent or more; and that, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. When the percentage requirements are met, and the disabilities involved are of a permanent nature, a rating of permanent and total disability will be assigned if the veteran is found to be unable to secure and follow substantially gainful employment by reason of such disability. 38 C.F.R. § 4.17. Prior employment or unemployment status is immaterial if, in the judgment of the rating board, the veteran's disabilities render him or her unemployable. Id. Marginal employment (for example, as a self-employed farmer or other person, while employed in his or her own business, or at odd jobs or while employed at less than half the usual remuneration) will not be considered incompatible with a determination of unemployability, if the restriction as to securing or retaining better employment, is due to disability. Moreover, claims of all veterans who fail to meet the percentage standards but who meet the basic entitlement criteria and are unemployable, will be referred by the rating board to the Veterans Service Center Manager or the Pension Management Center Manager under 38 C.F.R. § 3.321 (b)(2). A veteran will be considered permanently and totally disabled if he is a patient in a nursing home for long-term care, is disabled as determined by Social Security, is unemployable as a result of disability reasonably certain to continue throughout the life of the person, is suffering from any disability which is sufficient to render it impossible for the average person to follow a substantially gainful occupation, but only if it is reasonably certain that such disability will continue throughout the life of the person, or where the Veteran has any disease or disorder determined by VA to be of such a nature as to justify a determination that persons suffering from that disease or disorder are permanently and totally disabled. 38 C.F.R. § 3.3 (a)(3). The Veteran does not meet the basic eligibility criteria for a finding of permanent and total disability set forth in 38 C.F.R. § 4.16 (a). The Veteran has a 30 percent rating for residual traumatic headaches, a 10 percent rating for tinnitus, and a 0 percent rating for bilateral hearing loss. He also had a 10 percent disability rating for nonservice-connected acid reflex. While nonservice-connected adjustment disorder was not assigned a rating, an April 2018 VA examination shows that although a mental condition was diagnosed, symptoms were not severe enough to interfere with occupational and social functioning, or to require continuous medication. The Board finds, therefore, that the Veteran’s adjustment disorder was consistent with a noncompensable rating under 38 C.F.R. § 4.130, Diagnostic Code 9440. The Veteran’s alcohol and substance dependence may not be considered in evaluating disability. Thus, he had a combined 40 percent rating. See 38 C.F.R. § 4.25. The Veteran did not meet the schedular percentage standards of section 4.16 (a). The preponderance of the evidence is against finding that the Veteran has been unable to secure and sustain a substantially gainful occupation during the appeal period. As noted in evaluating the appeal for a TDIU, VA examinations show that the Veteran would miss some work days during prostrating and prolonged attacks of headache pain occurring once a month on average, experience loss of productivity due to missed work, and he had some difficulty with hearing conversations. The April 2018 VA examination shows that symptoms of adjustment disorder were not severe enough to interfere with occupational and social functioning. A December 2018 VA examination for gastroesophageal reflux disease (GERD) or acid reflux shows that the disability had no functional impact on work. Accordingly, the Board finds that while the Veteran’s headaches do cause some impairment, his Veteran’s disabilities are not sufficient to render it impossible for the average person to follow a substantially gainful occupation. The Veteran is not otherwise shown to be unemployable or permanently and totally disabled. Thus, a referral to the Veterans Service Center Manager or the Pension Management Center Manager under 38 C.F.R. § 3.321 (b)(2) is not warranted and entitlement to nonservice-connected pension is denied. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christine C. Kung 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.