Citation Nr: 21062717 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 17-33 480 DATE: October 12, 2021 ORDER Entitlement to service connection for a migraine headache disability is denied. Entitlement to a rating in excess of 20 percent for diabetes mellitus (DM) type II, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU), to include referral for consideration of an extraschedular TDIU prior to December 11, 2012, is denied. Entitlement to a TDIU from December 11, 2012 to April 24, 2019, is denied. FINDINGS OF FACT 1. The preponderance of the evidence demonstrates that the Veteran's migraine headache disability was not shown as chronic in service; did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that the Veteran's DM type II requires regulation of activities. 3. During the period on appeal from July 12, 2012 to December 10, 2012, the Veteran did not meet the numeric requirements for schedular TDIU and there is not sufficient evidence to substantiate a reasonable possibility that he is unemployable by reason of his service-connected disabilities to warrant referral for extraschedular consideration of TDIU. 4. During the period on appeal from December 11, 2012 to April 24, 2019, the preponderance of the evidence is against finding that the Veteran's service-connected disabilities precluded him from performing the physical and/or mental acts required to obtain or retain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for a migraine headache disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for an evaluation in excess of 20 percent for diabetes mellitus, type II, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.119, Diagnostic Code 7913. 3. The criteria for TDIU, from July 12, 2012 to December 10, 2012, to include referral for consideration of an extraschedular TDIU, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19. 4. The criteria for TDIU, from December 11, 2012 to April 24, 2019, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1965 to December 1967 with service in the Republic of Vietnam from August 1966 to August 1967. The Veteran has had a 100 percent schedular VA disability rating for coronary artery disease since April 24, 2019, along with special monthly compensation under 38 U.S.C. 1114 (s) since April 24, 2019. This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. In an October 2020 decision, the Board dismissed the claims for entitlement to service connection for hypertension and a stroke disability based on the Veteran's request to withdraw the claims at his Board hearing. In addition, the Board remanded the claims for entitlement to an increased rating in excess of 20 percent for DM II and the claims for entitlement to service connection for bilateral lower extremity disabilities, migraine headaches, an acquired psychiatric disorder, and entitlement to TDIU. During remand status, a May 2021 rating decision granted service connection for right and left lower extremity diabetic neuropathy and assigned separate, initial 20 percent ratings effective December 3, 2019; service connection for an acquired psychiatric disorder with an initial 30 percent rating from December 3, 2019; and SMC at the housebound rate from December 3, 2019. As the RO granted in full the benefit sought by the Veteran, there is no remaining allegation of error of fact or law for appellate consideration with respect to these matters. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). It is noted that in an August 2021 Higher Level Review rating decision, earlier effective dates were granted for service connection for the Veteran's acquired psychiatric disorder, right and left lower extremity diabetic neuropathy, and SMC at the housebound rate. Pursuant to the Board's remand, in January 2021, the Veteran underwent VA examinations for migraine headaches and DM II and an accompanying TDIU statement was also obtained. There has been substantial compliance with the Board's prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). 1. Entitlement to service connection for migraines. The Veteran contends that his migraine headaches disability is related to service. Specifically, he maintains that his disability is due to in-service exposure to herbicide agents and/or fuel fumes while in the Republic of Vietnam. See Hearing Transcript at 15 (December 2019) & VA Form 21-4138 (September 2012). The Veteran asserts that his headaches began in Vietnam and were mild for years but became progressive more painful. VA Form 21-4138 (January 2013). The Board concludes that, although the Veteran has a current diagnosis of migraine and cluster headaches, and VA has conceded his exposure to herbicide agents and fuel fumes, the preponderance of the evidence weighs against finding that the disability manifested in service, or within one year after service; or was noted in service with continuity of symptomatology; or is otherwise etiologically related to in-service injury or disease, to include exposure to herbicide agents and fuel fumes. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 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); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), (d). Certain chronic diseases, such as other organic diseases of the nervous system (e.g. migraine headaches), will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). A veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed during to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6)(iii). The Vietnam era is the period beginning on February 28, 1961 and ending on May 7, 1975 for veterans who served in the Republic of Vietnam. 38 U.S.C. § 101(29)(A). The Veteran's service records show service in the Republic of Vietnam from August 1966 to August 1967. For veterans presumed to have been exposed to herbicides, certain enumerated diseases shall be service connected even though there is no record of such disease during service, so long as the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, and the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The enumerated diseases which are deemed to be associated with herbicide exposure do not include migraine headache disorders. 38 C.F.R. § 3.309(e). Although the Veteran's diagnosed migraine and cluster headaches are not diseases presumptively associated with exposure to herbicide agents, 38 C.F.R. § 3.309(e), nonetheless, service connection may be established with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also McCartt v. West, 12 Vet. App. 164, 167-68 (1999) (providing that the provisions set forth in Combee are equally applicable in cases involving claimed Agent Orange exposure). The Veteran's service treatment records (STRs) reflect no complaints, treatment, or findings for migraine headaches. The Veteran's service separation examination reflects normal clinical evaluation of the head and neurological system. The Veteran's private treatment records submitted in support of the claim reflect that his headaches began and were diagnosed many years after service separation. For instance, Dr. Reynaldo Lazaro of Catskill Neurosciences and Radiology Associates noted in June 2001 that the Veteran began experiencing left facial-hemicrania at age 42. See Medical Treatment Record-Non-Government Facility (September 2012). Additionally, a clinical history taken in July 2017 by neurologist Dr. Thomas Morell reflects the Veteran was diagnosed with cluster headaches at approximately 40 years of age. See Medical Treatment Records-Non-Government Facility (November 2020). VA treatment reports also reflect the Veteran developed migraine headaches many years after service separation. In that regard, an August 2007 primary care note indicates the Veteran had a migraine headache in 1986 following a right-side ophthalmic zoster (shingles involving the right eye) and he suffered a right cardiovascular accident in 1998 resulting in left side numbness of the hand and foot in 1998 and experienced migraines predominantly on the left side. See CAPRI (January 2013). A January 2021 VA headache disability examination report reveals a diagnosis of migraine and cluster headaches. The Veteran's medical history reflects the onset of migraines in 1981 behind the left eye that radiated to the entire left side of his face and back of neck. The corresponding medical opinion concludes that the Veteran's migraine and cluster headaches are less likely than not incurred in or caused by an in-service injury, event or illness. In support of that conclusion, the rationale indicates that the Veteran's STRs do not show any treatment or diagnoses of a headache condition and the migraine and cluster headaches were not diagnosed until almost 20 years after discharge from service when he began treatment for his symptoms. In addition, there is no documentation of any in-service injury, event or disease that could have led to the development of a headache condition. Lastly, there is no documented evidence that exposure to herbicide agents and/or fuel fumes causes the development of cluster or migraine headaches. The Board acknowledges the lay evidence of record, including the Veteran's assertion that he developed headaches affecting the left side of his face and head during the latter half of service and that symptoms continued after service separation and progressively worsened. See e.g., VA 21-4138 Statement in Support of Claim (December 2012). In addition, several buddy statements were submitted in support of the claim, attesting to the Veteran's complaints of headaches right after he was discharged from service. Here, however, the Board assigns greater probative value to the STRs, which show no indication of a migraine headache disability along with post-service medical records reflecting treatment and diagnosis of migraine and cluster headaches almost 30 years following service separation. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). The Board also assigns greater probative value to the many years intervening service and the first medical diagnosis for migraine headaches. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006); see also Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom., Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom., Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (finding that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). In support of his claim that his migraine and cluster headaches are related to his in-service exposure to Agent Orange and fuel fumes, the Veteran submitted a medical statement dated in November 2012, from his private neurologist, Dr. Reynaldo Lazaro. The physician stated that the Veteran's cluster headaches are vascular in nature and can be triggered or worsened by any chemicals including dioxin or any other chemicals containing hydrocarbon and heavy metals that can irritate the blood vessels in the scalp or brain circulation. The Board finds the private medical opinion is inadequate for a number of reasons. First, the physician did not opine that herbicide/fuel fume exposure is a causal factor in the development of cluster headaches. Here, while the statement essentially provides that, exposure to herbicides and chemicals containing hydrocarbon and heavy metals can set off or worsen cluster headaches, it does not advance an etiological relationship between such exposures and cluster headaches. Second, the Board is unable to discern the essential rationale for the opinion. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). The opinion does not provide a reasoned rationale connecting an in-service causative factor to the Veteran's current migraine and cluster headaches. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) ("[A] medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two."). See also, Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion."). It is noted that generic and conclusory statements are insufficient to satisfy medical evidence of nexus requirement. See Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996). In other words, the Board may not rely on a medical examiner's conclusory statements if they lack a supporting analysis. Third, the opinion is too speculative to establish a medical nexus in its use of the term "can". See 38 C.F.R. § 3.102 (reasonable doubt does not include resort to speculation or remote possibility); see also Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus); Hood v. Shinseki, 23 Vet. App. 295, 298-99 (2009) (stating a medical examiner's use of ambivalent or noncommittal phrases "should have signaled to the Board that the medical opinion was speculative and of little probative value"). Fourth, Dr. Lazaro's assertion that cluster headaches can be "triggered" or "worsened" by dioxin or other chemical exposures is contradicted by his own treatment records noting that in November 2007, the Veteran had cyclical headaches annually from June to August without clear provoking factors, and, in May 1999 noting the Veteran's report that he stopped his significant alcohol use because it made his headaches worse. See Medical Treatment Records-Non-Government Facility (February 2013). Finally, the private opinion does not address the Veteran's report that he developed migraine headaches in 1986 after he had a right-side ophthalmic zoster. See CAPRI (August 2007) & CAPRI (February 2008). The opinion, in this case, does not dispute or even mention the above critical findings. The absence of a meaningful discussion of this evidence does not show awareness of relevant facts and therefore, casts doubt on the medical opinion's foundation. Although an examiner need not discuss all potentially favorable or unfavorable evidence in order to render an adequate opinion, see Monzingo, 26 Vet. App. at 105, it must be clear that the examiner was "informed of sufficient facts upon which to base an opinion relevant to the problem at hand." Nieves-Rodriguez, 22 Vet. App. at 303. Thus, the medical opinion is inadequate for adjudicative purposes because it is not definitive and supported by detailed rationale when weighed against the other evidence of record. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). As such, the private medical opinion has diminished probative value. To the extent the Veteran believes his migraine headache disability was caused by his exposure to herbicides and/or fuel fumes, he is not competent to provide a nexus opinion regarding this issue as it is medically complex and requires knowledge of the relationship between chemical exposures and a decades-later development of migraine and cluster headaches. Therefore, it is outside the competence of the Veteran because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). In sum, the preponderance of the evidence does not demonstrate that the Veteran's migraine disability began during service or within one year of service separation, nor is continuity of symptomatology shown. Furthermore, there is no competent, probative evidence linking the Veteran's migraine headache disability to his exposure to herbicides and/or fuel fumes during service. Instead, the evidence shows that the Veteran's migraine headache disability began many years after service, following a shingles outbreak in the mid-1980's that affected his right eye and after he suffered a stroke in the late 1990's that affected his left side. On balance, the weight of the evidence is against the claim. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). 2. Entitlement to a rating in excess of 20 percent for DM II. The Veteran contends that a higher rating in excess of 20 percent is warranted for DM II based on his need to regulate activities due to DM II. In that regard, the Veteran asserts that he requires a restricted diet, daily insulin injections and a regulation of activities to avoid any risk of hypoglycemic episodes. See Hearing Transcript at 5 (December 2019). The Board concludes that the preponderance of the evidence is against the assigment of a rating in excess of 20 percent for the Veteran's DM II as he has not been shown to require a regulation of activities. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.119, Diagnostic Code 7913. Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's DM II is rated under 38 C.F.R. § 4.119, Diagnostic Code 7913. Diagnostic Code 7913 provides a structured scheme of specific, successive, cumulative criteria. Each higher rating includes the same criteria as the lower rating plus distinct new criteria. Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013). A 10 percent rating is warranted when diabetes is managed by restricted diet only. A 20 percent rating is warranted when diabetes requires one or more daily injection of insulin and restricted diet, or an oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted when it requires one or more daily injection of insulin, restricted diet, and regulation of activities. Regulation of activities is defined as avoidance of strenuous occupational and recreational activities. A 60 percent rating is warranted when diabetes requires one or more daily injection of insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating is warranted when diabetes requires more than one daily injection of insulin, restricted diet, and regulation of activities, with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. Compensable complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100-percent evaluation. Noncompensable complications of diabetes are considered part of the diabetic process. 38 C.F.R. § 4.119, Diagnostic Code 7913 (Note 1). Here, separate compensable evaluations have been assigned for peripheral neuropathy of the bilateral upper and lower extremities and an acquired psychiatric disorder. Because Diagnostic Code 7913 contains successive criteria, the criteria for the lower rating must be met before a higher disability rating may be awarded. A higher rating cannot be granted based on a finding that the Veteran's disability picture more nearly approximates the criteria for the next higher rating. However, reasonable doubt regarding the presence of a criterion may be resolved in the Veteran' favor. Johnson v. Wilkie, 30 Vet. App. 245 (2018). The question for the Board is whether the Veteran's DM II requires a regulation of activities. Regulation of activities is defined as avoidance of strenuous occupational and recreational activities. This criterion requires medical evidence. Camacho v. Nicholson, 21 Vet. App. 360, 364-65 (2007). At his hearing, the Veteran testified that all his private doctors told him to regulate activities such as running, lifting, and working in order to avoid the risk of diabetic hypoglycemic episodes. See Hearing Transcript at 5 (December 2019). In support of his claim, the Veteran submitted Diabetes Mellitus Impairment Questionnaires dated in July 2013, May 2014, and two in July 2017 that were completed by four different private physicians who determined that, among other things, the Veteran required a regulation of activities as treatment for his DM II. However, the Board finds the private questionnaires inadequate to support the Veteran's claim for entitlement to an increased rating for his DM II. For instance, they are not based on consideration of the Veteran's prior medical history and contemporaneous medical records. In that regard, VA and private treatment records do not establish that the Veteran's DM II requires treatment with regulation of activities. Indeed, VA treatment records throughout the appeal period show the Veteran has been encouraged to regularly exercise as an integral part of his diabetic treatment plan. A March 2015 VA treatment record shows the Veteran's diet and exercise had improved and the Veteran was running daily errands and walking approximately one mile per day. In March 2018, the Veteran reported that he was eating better, was active around the house and walking twice a day. Furthermore, VA treatment records dated from May 2020 to October 2020 reflect the Veteran walked frequently and his prescribed diabetic treatment plan included exercising with a goal of 30 minutes, 5 days per week. In addition, VA treatment records show that in circumstances where the Veteran had limited or altogether stopped his activities, it was for unrelated health conditions such as in March 2019 when it was noted the Veteran stopped walking due to arthritis in his knees and in April 2019, when it was noted the Veteran could not exercise until he was cleared by cardiology. See CAPRI (June 2019). Furthermore, an August 2019 VA treatment record indicates the Veteran had been cleared by cardiology to resume exercise and, the Veteran reported that he planned to start using his stationary bike. Thus, given the above, the private physicians' findings regarding the Veteran's regulation of activities are not shown to have been based on an accurate medical history and, accordingly, the Board finds the private medical evidence inadequate to support the claim for an increased rating. An examination or opinion is considered adequate, "where it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's '"evaluation of the claimed disability will be a fully informed one.'" Stefl v. Nicholson, 21 Vet. App. 120 (2007). Lastly, the VA diabetes examination reports obtained during the period on appeal, all reflect the Veteran requires daily insulin or oral hypoglycemic agents and a restricted diet, but not a regulation of activities as part of the medical management of his DM II. See C&P Exams (January 2013, February 2017, January 2021). The Board assigns great probative value to the findings obtained during the Veteran's VA diabetes examinations as they are consistent with his documented medical history. The Board recognizes the Veteran is competent to report the symptoms of his diabetic disease. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the criterion for regulation of activities requires medical evidence. See Camacho, supra. Thus, based on the foregoing discussion, the Board finds the medical evidence does not reflect that a regulation of activities is required as part of the treatment regime for the Veteran's DM II. As such, the weight of the evidence is against assigning a rating in excess of 20 percent during the period on appeal. Therefore, the Veteran's claim for a higher rating for DM II is denied. There is no reasonable doubt to resolve in this matter. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). TDIU The Veteran contends that his service-connected disabilities, specifically DM II and coronary artery disease, preclude his ability to maintain gainful employment. See VA Form 21-8940 (March 2020). The Veteran testified that his DM II and its complications prevent him from performing the mental and physical acts required for gainful employment. See Hearing Transcript at 29 (December 2019). Initially, the Board notes that the Veteran is in receipt of a 100 percent permanent and total schedular rating along with SMC at the housebound rate effective April 24, 2019. Under such circumstances, the claim for TDIU is moot from April 24, 2019, as the Veteran will receive no additional benefits, even if TDIU were to be granted. See Buie v. Shinseki, 24 Vet. App. 242 (2011); Bradley v. Peake, 22 Vet. App. 280 (2008). Notwithstanding the above, the issue remains as to whether TDIU is warranted for the period from July 12, 2012, the date this appeal commenced, through April 23, 2019or stated differently, entitlement to TDIU prior to April 24, 2019. See Harper v. Wilkie, 30 Vet. App. 356 (2018). During the appeal period, in pertinent part, the following ratings for the Veteran's service-connected disabilities were in effect: DM II (20%), left lower extremity diabetic neuropathy (20%), and right lower extremity diabetic neuropathy (20%), effective July 12, 2012; acquired psychiatric disorder (30%) effective December 11, 2012; coronary artery disease (100%) effective April 24, 2019. As such, the Veteran's combined disability rating was 50 percent from July 12, 2012; 70 percent from December 11, 2012; 100 percent from April 24, 2019. A TDIU may be assigned to a veteran who meets certain disability percentage standards and is "unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities." 38 C.F.R. § 4.16(a). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Total disability ratings for compensation based on individual unemployability may be assigned when the combined schedular rating for the service-connected disabilities is less than 100 percent and when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, this disability is ratable at 60 percent or more, or, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16 (a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable,(2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16 (a). 3. Entitlement to TDIU for the appeal period prior to December 11, 2012. The Board concludes that, prior to December 11, 2012, the Veteran did not meet the numeric requirements for schedular TDIU under 38 C.F.R. § 4.16(a) and that referral to the VA Director of Compensation for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b) is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.16(b), 4.18, 4.19. For the period on appeal, from July 12, 2012 to December 10, 2012, all the Veteran's service-connected disabilities arose from a common etiology of DM II, considered as one disability for the purposes of qualifying as a single disability ratable at 60 percent or more under 38 C.F.R. § 4.16(a). However, even considering the Veteran's combined 50 percent disability rating solely based on common etiology, the Veteran still does not meet the numeric criteria for schedular TDIU which requires a single disability of at least 60 percent prior to December 11, 2012. Notwithstanding that the numeric criteria for schedular TDIU are not met for that time period, TDIU is warranted whenever service-connected disabilities cause unemployability pursuant to 38 C.F.R. § 4.16(b), but the Board is precluded from awarding a TDIU in the first instance under 38 C.F.R. § 4.16(b) without referring the matter to the Director of Compensation Service. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The initial extraschedular referral decision under § 4.16(b) should address whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." Ray v. Wilkie, 31 Vet. App. 58, 66 (2019). Here, although the Veteran does not meet the schedular criteria for TDIU until December 11, 2012, the Board's central inquiry remains the same throughout the entire period on appeal, from July 12, 2012 to April 23, 2019. In this regard, the Board must determine whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. See Hatlestad v. Brown, 5 Vet. App. 524 (1993). In view of the evidence of record discussed in greater detail in the section below, the Board finds that the preponderance of the evidence is against a finding that the Veteran was precluded from obtaining and maintaining substantially gainful employment based on his service-connected disabilities alone at any point during the entire period on appeal. Nevertheless, with respect to the appeal period from July 12, 2012 to December 10, 2012, on balance, the weight of the evidence is against finding that there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." Thus, referral to the VA Director of Compensation is not warranted. 38 C.F.R. § 4.16(b). See Ray v. Wilkie, 31 Vet. App. 58, 66 (2019). Accordingly, the claim for entitlement to TDIU is denied for the appeal period prior to December 11, 2012, to include referral for consideration of an extraschedular TDIU. There is no doubt to resolve. 38 U.S.C. § 5107(b). 4. Entitlement to TDIU for the appeal period from December 11, 2012 to April 24, 2019. The Board concludes that, during the appeal period, from December 11, 2012 and before April 24, 2019, the preponderance of the evidence is against finding that the Veteran's service-connected disabilities precluded his ability to secure or follow a substantially gainful occupation. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.16(a), 4.18, 4.19. As explained below, a preponderance of the evidence weighs against finding that the Veteran was unable to secure and follow a substantially gainful occupation due to his service-connected disabilities for the period from December 11, 2012 to April 23, 2019. Turning to the evidence, the Veteran initially submitted a VA Form 21-8940 in December 2012 indicating that he was unable to work due to migraine cluster headaches, residuals of a stroke, high blood pressure and DM II. See 21-8940 Veterans Application for Increased Compensation Based on Unemployability (December 2012). He reported that he completed 4 years of college and worked full-time as a NYC transit police officer from 1970 to 1990 and as a security officer at a hospital from 1995 to 1998. Id. The Veteran submitted another VA Form 21-8940 in March 2020 claiming that his DM II and coronary artery disease prevented him from securing or following any substantially gainful occupation. He also indicated that he last worked as a self-employed phone investigator from January 1994 to January 1999. See 21-8940 (March 2020). The evidence of record shows the Veteran was precluded from obtaining or retaining substantially gainful employment due to his nonservice-connected disabilities. Here, a Social Security Administration (SSA) fully favorable notice of decision dated in July 2000 reflects that the Veteran became unable to engage in substantially gainful employment since May 1998 due to severe impairments related to his cluster or migraine headaches and residuals of stroke. See SSA/SSI Letter (December 2012). The Board notes that although VA requested the medical records associated with the favorable decision, an SSA National Records Center reply indicated the medical records had been destroyed and further efforts to obtain them would be futile. See Medical Treatment Records-Furnished by SSA (March 2017). In addition, private medical records establish that the Veteran was precluded from engaging in gainful employment as a result of his nonservice-connected migraine and cluster headaches. For instance, a February 2000 statement from Dr. John Lusins of Catskill Neurosciences and Radiology Associates reflects the Veteran was disabled because of significant migraine events that caused confusion and affected his ability to concentrate. Further, in a statement dated in October 2009, Dr. Lazaro reported the Veteran's cluster headaches had incapacitated him for several years and that life-long therapy with oxygen inhalation was required to relieve severe headaches as various medications in the past did not help. Dr. Lazaro also stated in July 2012 that the Veteran had been suffering from disabling cluster headaches for over 20 years and was considered to be 100 percent totally disabled and consequently unable to work in any capacity. See Medical Treatment Record-Non-Government Facility (September 2012). Moreover, although a January 2021 VA examination report reflects the Veteran's service-connected diabetic peripheral neuropathy impacted his physical ability to work to some degree, such as grasping small objects and difficulty with balance, standing and walking for extended periods of time, a VA individual unemployability statement concluded that it was at least as likely as not that the Veteran was able to perform sedentary work in a normal 8-hour workday in view of his service-connected DM II and residual conditions. See C&P Exam (January 2021). Furthermore, to the extent the Veteran is assigned a 30 percent rating for an acquired psychiatric disorder secondary to DM II from December 11, 2012, a VA mental disorders examination report reflects the Veteran has occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. See C&P Exam (March 2021). In addition, VA treatment records, dated from 2011 to 2019, reveal that, for the most part, the Veteran either denied having psychiatric symptoms, such as anxiety, depression, and memory loss, or was found to have a clinically normal psychiatric evaluation. See, e.g., Medical Treatment Record-Non-Government Facility (April 2017) & Medical Treatment Record-Non-Government Facility (April 2019). Lastly, as stated above, the January 2021 VA individual unemployability statement concluded the Veteran was able to perform sedentary work in a normal 8-hour workday in view of his service-connected conditions. During his hearing, while the Veteran acknowledged that the basis of his SSA award was his hypertension, cluster headaches and stroke, he asserted that his service-connected diabetes and his diabetic peripheral neuropathy affecting the bilateral lower extremities prevented him from engaging in gainful employment. Specifically, the Veteran testified that his peripheral neuropathy limited his ability to walk and lift and that neuropathic pain interfered with his ability to maintain attention and concentration. See Hearing Transcript at 19-20 (December 2019). During the appeal period prior to April 24, 2019, the Veteran underwent 2 VA DM examinations. A January 2013 examiner concluded that the Veteran's DM II did not cause functional impairment that affected his ability to perform physical and sedentary employment. The examiner reviewed the claims file and provided the rationale that the Veteran's DM was not mentioned as the reason for his disability in the SSA decision and several letters from private health care providers noted that he was disabled due to cluster headaches. It was also noted that the Veteran's DM II was stable and did not result in hypoglycemic episodes or hospitalizations. See VA Examination (January 2013). A February 2017 VA examination report reflects the Veteran's DM II did not impact the Veteran's ability to work. See C&P Exam (February 2017). The Veteran submitted numerous Diabetes Mellitus Impairment Questionnaires from his private physicians. A July 2013 questionnaire, completed by Dr. Dohner, stated the Veteran had diabetic peripheral neuropathy of the bilateral upper and lower extremities that was moderately severe. It was determined that the Veteran would be unable to perform gainful employment with symptoms and limitations stemming from his DM II and secondary impairment. The May 2014 DM impairment questionnaire from Dr. Lazaro and the July 2017 questionnaire from Dr. Guaitolil contain the same findings and conclusions, including that the Veteran was not capable of performing gainful employment due to his DM II. His primary symptoms were pain and tingling in the feet, dizziness, and headaches. It was noted that the Veteran was able to sit for 2 hours in an 8-hour day and stand/walk for 1-2 hours and could not carry or lift more than 10-20 pounds. The July 2017 DM impairment questionnaire from Dr. Moreil noted the Veteran was 71 years old and because of multiple medical problems, he was unable to work. It was noted he had constant lower extremity pain and paresthesia of ankle-distal bilaterally and some recent complaints regarding mobility and balance impairment. The examiner noted the Veteran had paresthesia, diminished proprioception, abnormal nerve testing, and abnormal reflexes and indicated the Veteran was not capable of performing gainful employment as a result of his DM and secondary impairments. The Board has considered both economic and noneconomic components on the matter of the Veteran's inability to secure and follow a substantially gainful occupation. See Ray, supra. Here, the record reflects the Veteran earned a bachelor's degree and retired after 20 years of full-time employment as a NYC Transit policeman. Following his retirement, he was gainfully employed for several years as a private investigator and security officer while doing taxidermy as a second job until he was awarded SSA disability benefits based on his inability to engage in substantially gainful employment since May 1998 due to severe impairments related to his cluster or migraine headaches and residuals of stroke, both of which pre-dated the Veteran's DM II diagnosis. Furthermore, the Board finds that the evidence does not show that the Veteran was precluded from performing the physical and/or mental acts required for gainful employment due to his DM II and secondary conditions for the period prior to April 24, 2019. While the functional impairment resulting from his service-connected peripheral neuropathy of the bilateral lower extremities may limit or interfere with physical labor tasks, such as walking, standing, and lifting, such impairment is not to the extent so as to preclude the Veteran from performing occupations for which he would otherwise be qualified. The Board also acknowledges that the Veteran's service-connected acquired psychiatric disorder due to DM II may have impacted his ability to concentrate. However, neither the lay nor the medical evidence discussed above tends to support finding that the Veteran did not have the mental ability to perform activities required to engage in gainful employment. In conclusion, the evidence of record does not more nearly reflect that the Veteran's service-connected disabilities caused impairment in his physical and/or mental functions so as to preclude him from engaging in gainful employment. Here, the preponderance of the evidence shows that the Veteran stopped working in May 1998 due to nonservice-connected disabilities related to his migraine headaches and stroke residuals. In arriving at this determination, the Board has considered the evidence throughout the appeal period holistically, to include the Veteran's service-connected disabilities, employment history, educational history, and all other relevant factors. Lastly, it is noted that difficulty with employment due to service-connected disability is contemplated by, and compensated under, the VA rating schedule, and is not equivalent to being unable to secure and maintain gainful employment. Essentially, the assigned ratings for the Veteran's diabetes and peripheral neuropathy throughout the appeal period already contemplate industrial impairment. See 38 C.F.R. § 4.1 (explaining that disability evaluation percentages represent the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations). The TDIU law, unlike the disability rating provisions, requires that a veteran's service-connected disabilities alone produce unemployability. On balance, the weight of the evidence is against finding that the Veteran was unable to secure and follow substantially gainful employment due to his service-connected disabilities alone from December 11, 2012 to April 23, 2019. Accordingly, the claim for entitlement to TDIU is denied for the period from December 11, 2012 to April 24, 2019. There is no doubt to resolve. 38 U.S.C. § 5107(b). C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Krunic, 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.