Citation Nr: 21063404 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 19-29 125 DATE: October 14, 2021 ORDER Service connection for headaches (to include migraines) is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's current headache disability had its onset during active duty service. CONCLUSION OF LAW The criteria for service connection for a headache disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1970 to February 1974. This case is before the Board of Veterans' Appeals (Board) on appeal from a July 2018 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO denied entitlement to service connection for headaches and denied entitlement to a TDIU. The Veteran's notice of disagreement was received in August 2018. The RO issued a statement of the case in September 2019. The Veteran's VA Form 9, substantive appeal to the Board, was received in September 2019. In April 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of the testimony is associated with the claims file. Entitlement to service connection for a headache disability. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran contends that his current headache disability had its onset during active service; specifically, the headaches had their onset during active service and have continued ever since. See April 2021 Board Hearing transcript at 4. The Veteran has a current diagnosis for migraine headaches according to the July 2018 VA examination. Accordingly, the first element of service connection is met. According to the Veteran's service treatment records (STR), he reported no headache condition during his September 1965 entrance exam. In September 1973 the Veteran is treated for headaches on three separate occasions and diagnosed with "migraine headache." The Veteran's April 1973 separation examination noted, "mild frequent and severe headaches." Given the Veteran's in-service diagnosis of a neurological disease and onset, the second element is met. The Veteran was afforded a VA examination in July 2018. Despite diagnosing the Veteran with migraine headaches dating back to 1973, the examiner found the condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness and provided the following rationale: Review of STR has documentation on separation physical 4/27/73 "mild frequent and severe headaches". Migraine headache 9/24/73, 9/27/73-there is no other documentation for headaches since these documentation in his STR, VBMS, or VA medical records to indicate chronicity. In a September 2018 private medical opinion by Dr. N.S., upon examination, he concluded the Veteran's current headaches/migraine condition that began while in service was more likely than not caused/aggravated by service, supported by the Veteran's in-service treatment records in September 1973. Private physician Dr. M.S-S. provided a March 2021 medical opinion. She found the Veteran's current diagnosis of headaches/migraines is at least as likely as not the same headache/migraine condition that began in-service or caused by the headache/migraine condition that began in-service supporting her finding as follows: [The Veteran] was a healthy, asymptomatic young man when he entered the Air Force in 1965. He was continuously exposed to synthetic fumigant chemicals, fiber glass and agent orange without any provision for airway or ear protection. The inhalation, skin absorption, ingestion, and noise exposure from his service in Vietnam have all contributed to/likely caused his chronic disabling headaches. In addition to the medical evidence, the Veteran testified at his April 2021 Board hearing that he experiences headaches which began in service and he has suffered from these headaches ever since service. The Veteran is competent to report his observable symptoms such as headache pain. This is an observable symptom capable of lay observation. Moreover, there is no reason to doubt the Veteran's credibility in this regard. See Layno v. Brown, 6 Vet. App. 465 (1994). A layperson is competent to report on the onset and continuity of his current observable symptomatology. 38 C.F.R. § 3.159 (a); Layno v. Brown, 6 Vet. App. 465, 470 (1994). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." See Savage v. Gober, 10 Vet. App. 488, 496 (1997) (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). The July 2018 VA examiner's opinion fails to address the Veteran's competent lay statements regarding his continuous symptomology as well as the in-service migraine diagnosis and is therefore of less probative value. Accordingly, the most probative medical evidence of record, to include two positive nexus opinions, taken with the Veteran's competent and credible lay statements regarding onset and continuity of symptoms suggests that the Veteran has a current headache disability that had its onset during service and has continued since that time. With resolution of all doubt in the Veteran's favor, therefore, service connection for a headache disability is warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS FOR REMAND Entitlement to a TDIU based on service-connected disabilities. The Veteran asserts that his service-connected disabilities prevent him from obtaining and maintaining gainful employment. A total disability rating may be assigned, where the schedular rating is less than total, when it is determined that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). Total disability ratings based on individual unemployability due to service-connected disabilities may be assigned on a schedular basis pursuant to 38 C.F.R. § 4.16(a) where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities; provided that, there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability is ratable at 40 percent or more, and there is sufficient additional disability to bring the combined rating to at least 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing 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. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Prior to this decision the Veteran did not meet the schedular threshold percentage requirements for consideration of a TDIU on a schedular basis under 38 C.F.R. § 4.16(a). More specifically, the Veteran did not have a single service-connected disability rated at 60 percent or higher; and, the Veteran did not have a service-connected disability rated at least 40 percent with a combined disability rating of at least 70 percent. However, as the implementation of the grant herein and the September 2021 rating decision granting service connection for peripheral neuropathy for all extremities (currently awaiting examination to determine the severity) could affect the Veteran's overall rating, and therefore the outcome of the TDIU claim. Accordingly, the adjudication of the TDIU claim must be deferred pending the outcome of the RO's rating actions as noted above. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). The matter is REMANDED for the following action: Following the assignment of disability ratings for the service-connected headache disability and peripheral neuropathy of the right and left upper and lower extremities, readjudicate the Veteran's claim for a TDIU. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Ardalan, Associate 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.