Citation Nr: 21070590 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 14-28 852 DATE: November 24, 2021 ORDER Entitlement to a 10 percent rating under 38 C.F.R. § 3.324 based on multiple noncompensable (zero percent rated) service-connected disabilities is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected posttraumatic headaches is remanded. Entitlement to an increased rating for posttraumatic headaches is remanded. FINDING OF FACT A compensable rating has been assigned for a service-connected disability during the entire claim period. CONCLUSION OF LAW The criteria for a 10 percent rating under 38 C.F.R. § 3.324 based on multiple noncompensable service-connected disabilities have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § 3.324. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1974 to September 1977. The Department of Veterans Affairs (VA) is grateful for his service. The Board remanded the appealed claims in March 2018, and they now return for further review. The claim for service connection for tinnitus which was remanded by the Board was resolved by a grant of that benefit by the Regional Office (RO). Entitlement to a 10 percent rating under 3.324 based on multiple noncompensable (zero percent rated) service-connected disabilities Whenever a veteran is suffering from two or more separate, permanent service-connected disabilities of such character as to clearly interfere with normal employability, even though none of the disabilities may be of compensable degree under the Rating Schedule, the rating agency is authorized to apply a 10 percent rating, but not in combination with any other rating. 38 C.F.R. § 3.324. The provisions of 38 C.F.R. § 3.324 are predicated on the existence solely of non-compensable service-connected disabilities. Once a compensable evaluation for any service-connected disability has been awarded, the applicability of 38 C.F.R. § 3.324 is rendered moot. See Butts v. Brown, 5 Vet. App. 532, 541 (1993). The Veteran's original claim was received on April 23, 2008. He has been assigned a 50 percent rating for posttraumatic headaches effective that date, a 10 percent rating for tinnitus from that date, and a 10 percent rating for residuals of traumatic brain injury from that date. In the absence of any claim period interval in which the Veteran was not assigned a compensable disability rating, a 10 percent rating under 38 C.F.R. § 3.324 must be denied. Id. REASONS FOR REMAND 1. Entitlement to a TDIU due to service-connected posttraumatic headaches is remanded. The Board notes that by a July 2021 decision the VA Regional Office (RO) granted TDIU effective June 22, 2020. However, that grant was based on all service-connected disabilities and not limited to posttraumatic headaches. The appealed issue of entitlement to TDIU based solely on posttraumatic headaches accordingly persists since the Veteran has not expressed satisfaction with that issue. See AB v. Brown, 6 Vet. App. 35 (1993). The Veteran's initiated appeal from the July 2021 decision, for an earlier effective date than June 22, 2020 for general TDIU, is not presently before the Board for review. The Veteran is service-connected for posttraumatic headaches which he has described as occurring multiple times per day and lasting from seconds to minutes. These headaches have been attributed in the record to a fall in service. The Veteran has been variable in his reporting of the frequency and duration of these headaches and in his reporting of whether they are associated with other symptoms such as dizziness or nausea. The Veteran's headaches were last addressed by May 2021 VA examination. While the Veteran has contended that he cannot work due to his headaches and the May 2021 examiner indicated that the Veteran's headaches were characterized by very prostrating and prolonged attacks of migraine/non-migraine pain productive of severe economic inadaptability, this characterization of the service-connected headache attacks as "prolonged" does not appear to be consistent with the Veteran's self-report of the nature of his service-connected posttraumatic headaches. The Veteran, in the past, described his posttraumatic headaches as lasting less than a minute or one to two minutes, and has recently described them as lasting five or six minutes. The Veteran also recently variously described them as occurring either a few times per day or five or six times per day, while he previously described them as occurring less frequently than five or six times per day. Thus, while the Veteran has been inconsistent in his description of his headaches, none of his descriptions may reasonably be accepted as describing "prolonged" attacks, which the Board would consider minimally to involve headaches lasting hours. The Board would not consider headaches lasting between less than a minute and six minutes "prolonged." In contrast, other records identify headaches, which have been described as migraine-type headaches and appear to be distinct from his service-connected posttraumatic headaches. In August 2008, a private neurologist identified bifrontal headaches occurring once every two to three weeks consistent with vascular migraine headache syndrome associated with the Veteran's cervical disc disease. These headaches were also associated with left side neck pain radiating into the shoulder and face. However, the Veteran is not service-connected for cervical disc disease or for vascular headaches. Thus, it appears possible that the May 2021 VA examiner has conflated service-connected posttraumatic headaches, which are of a distinct and rather unusual nature and lasting only up to six minutes, as described by the Veteran, and these vascular migraine headaches, which reportedly were or are of a more prolonged nature but which have not been associated with his in-service injury to the head and posttraumatic headaches. When addressing impact on functioning, an examiner should distinguish, to the extent feasible, impacts of other impairing conditions as identified in the course of treatment or examination. To the extent other disabilities are distinguishable in their symptoms and impacts on functioning from symptoms and impacts of the service-connected disability, such symptoms and impacts should not be attributed to the service-connected disability when evaluating symptoms and impacts for disability benefits purposes. Mittleider v. West, 11 Vet. App. 181, 182 (1998). Other potential causes of other types of headaches are also reflected in the record, including medial right frontal brain tissue loss as identified upon a brain MRI privately conducted in October 2008, which was then assessed as potentially associated with trauma. However, the private records indicate a potentially different trauma than that which occurred in service, since the in-service injury was reportedly in the left occipito-parietal area, and thus toward the back of the head on the left, whereas the posited injury potentially causal of the tissue loss identified upon brain MRI was suggested to have been to the front of the head on the right. Symptoms associate with this right frontal brain tissue loss, if not associated with the service-connected posttraumatic headaches, should also be distinguished to the extent feasible. Other potential headache causes for this Veteran include his documented poorly controlled diabetes, sleep impairment associated with sleep apnea and morbid obesity, and chronic maxillary sinusitis. Again, the record does not indicate that these are associated with his service-connected posttraumatic headaches. Based on these indications of other types of headaches and headache symptoms potentially impairing functioning which were not addressed by the May 2021 VA examiner, the Board concludes that the examination was inadequate for failing to attempt distinguish these other conditions to the extent possible. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Mittleider, 11 Vet. App. at 182. Based on the cursory and conclusory nature of the May 2021 VA examination, remand is warranted for examination by a different examiner to address accurately the nature and impact on work capacity of the Veteran's service-connected post-traumatic headaches and to distinguish these service-connected headaches and their impacts on functioning, to the extent possible, from these multiple other conditions potentially associated with non-service-connected headaches. 2. Entitlement to an increased rating for posttraumatic headaches is remanded. The Veteran was granted a 50 percent rating for his headaches from the date of service connection, which is the maximum schedular benefit possible. AB v. Brown, 6 Vet. App. 35 (1993); Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). However, the Veteran has claimed entitlement to TDIU based on service-connected headaches, and hence the headache claim is intertwined with the claim for TDIU as an extraschedular rating, and is appropriately remanded. 38 C.F.R. §§ 3.321, 4.16. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file any VA and indicated private treatment records not yet obtained, with the Veteran's assistance and authorization as appropriate. Inform the Veteran and his representative if any records cannot be obtained. 2. Obtain an in-person examination by an examiner qualified to address the nature and severity of the Veteran's service-connected posttraumatic headaches and their impact on work or work-like functioning, both currently and retrospectively over the claim period, and qualified to distinguish, to the extent feasible these symptoms and impacts on functioning from symptoms and impacts on functioning due to other headaches or conditions as indicated by the record. The examination should be conducted by an examiner other than the one who conducted the May 2021 VA headaches examination. The claims file should be reviewed for the examination, and any necessary tests or studies should be conducted. The examiner should be informed that this examination is necessary because the prior examiner in May 2021 apparently erroneously characterized the Veteran's service-connected posttraumatic headaches as "prolonged attacks," whereas the Veteran has in the past described his posttraumatic headaches as lasting less than a minute or one to two minutes and has recently described them as lasting five or six minutes. The Veteran also recently variously described them as occurring either a few times per day or five or six times per day, while he previously described them as occurring less frequently than five or six times per day. The examiner must document and consider the Veteran's own statements regarding his disability, since a layperson is competent to address symptoms as experienced and his recollections of past history and treatment. If the examiner has reason based on other evidence of record or medical knowledge to question the Veteran's self-reported history, the examiner should so state and provide a complete explanation why this is so. The examiner should explicitly address the August 2008 private treatment records in which a neurologist identifies bifrontal headaches occurring once every two to three weeks consistent with vascular migraine headache syndrome associated with the Veteran's cervical disc disease. These headaches were also associated with left side neck pain radiating into the shoulder and face. The examiner should note that the Veteran's cervical spine disability and associated vascular migraine headache are not service connected. The examiner should also explicitly address October 2008 private brain MRI reports informing of a right frontal brain tissue loss speculated to have been associated with injury to that part of the head, should address that the Veteran's service-connected posttraumatic headache is based on the Veteran's reported injury to the left occipito-parietal area. The examiner should address the question thus raised of brain injury not associated with the service-connected posttraumatic headaches. The examiner should also explicitly address other potential headache causes for this Veteran including his documented poorly controlled diabetes, sleep impairment associated with sleep apnea and morbid obesity, and chronic maxillary sinusitis. The examiner must address the nature and severity of the Veteran's service-connected posttraumatic headaches and their impact on work or work-like functioning, both currently and retrospectively over the claim period, and in so doing, the examiner must distinguish, to the extent feasible, symptoms and impacts on functioning from other causes including potentially the above-noted other indicated conditions. When addressing impact of service-connected posttraumatic headaches on work or work-like functioning, the examiner should address the occupational limitations/impairment due to these headaches. Also when considering this question of impacts on work or work-like functioning, the examiner should consider the Veteran's history of steady work for the Post Office after his service separation in 1977, working for the Post Office from 1978 until his retirement in 2015. 3. Thereafter, readjudicate the remanded claims. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Schechter 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.