Citation Nr: 21074214 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 19-26 427 DATE: December 14, 2021 ORDER Entitlement to an increased evaluation of 50 percent, and no higher, for headaches associated with a traumatic brain injury (TBI) is granted. Entitlement to a total disability evaluation due to individual unemployability due to service-connected disabilities (TDIU) is granted. The claim for entitlement to service connection for a right shoulder disability has been withdrawn. The claim for entitlement to service connection for a left shoulder disability has been withdrawn. FINDINGS OF FACT 1. Throughout the appellate period, the Veteran's headaches associated with TBI have manifested as very frequent attacks productive of severe economic inadaptability. 2. The Veteran is unable to secure and follow substantially gainful employment due to his service-connected disabilities. 3. The claims for service connection for a right shoulder disability and a left shoulder disability were withdrawn on the record during a hearing on December 1, 2021. CONCLUSIONS OF LAW 1. The criteria for an increased evaluation of 50 percent, but no higher, for headaches associated with TBI are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1 4.7, 4.21, 4.124a, Diagnostic Codes 8045, 8100. 2. The criteria for entitlement to TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.400, 4.16. 3. The criteria for service connection for right shoulder disability is withdrawn. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.55, 20.205. 4. The claim for service connection for a left shoulder disability is withdrawn. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.55, 20.205. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1982 to June 1990 with additional service in the National Guard. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision by an Agency of Original Jurisdiction (AOJ) of the United States Department of Veterans Affairs (VA). The Veteran testified at a December 1, 2021 virtual hearing held before the undersigned. This decision is being rendered prior to the production of a transcript of that hearing; given the favorable outcome, the Veteran is not prejudiced. During the pendency of the appeal, a July 2021 rating decision granted service connection for cervical strain, degenerative arthritis, intervertebral disc syndrome and spinal stenosis. This action constitutes a full grant of the benefit sought and the issue is no longer on appeal. Increased Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). A layperson is generally not capable of opining on matters requiring medical knowledge. Headaches The Veteran is seeking an increased evaluation in excess of 30 percent for his service-connected headaches due to TBI. His disability is rated under Diagnostic Code 8045-8100. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Here, the hyphenated code designates that the Veteran's headaches are due to his TBI. Headaches of all types are rated under Diagnostic Code 8100, for migraines. A 30 percent rating is assigned for characteristic prostrating attacks occurring once a month on average. When prostrating attacks are completely prostrating and occur very frequently, and cause severe economic inadaptability, a 50 percent rating is assigned. The Veteran underwent a VA headaches examination in November 2014. He complained of experiencing daily headache pain on both sides of his head. The Veteran reported that he takes Goody's powder for treatment. He reported that his headaches lasted less than one day. He stated that he had prostrating attacks more frequently than once per month over the last several months and very frequent prostrating and prolonged attacks of non-migraine headaches. The Veteran underwent a VA initial evaluation of residuals of TBI examination in November 2014. The Veteran reported experiencing recurrent headaches. VA treatment records reflect complaints of very frequent, constant, chronic headaches. In March 2016 he reported experiencing severe headaches described as an 8 to 9 out 10 in intensity. In September 2016 the Veteran reported his headaches were still very bad and described them as severe. A June 2017 treatment note reflects the Veteran stated his headaches were "so debilitating. They affect every part of my day, my life." In January 2019 the Veteran underwent a VA headache examination. The VA examiner noted the Veteran's diagnosis of headaches associated with TBI. Subjective complaints included quick on set of headaches with aura of "flashing lights;" dull, throbbing pain starting in frontal region of head with radiation to neck; associated with nausea, irritability, noise sensitivity and light sensitivity; triggers of stress, managed with PCM/neuro. Symptoms occur 3 times a week lasting 24 hours. The Veteran takes medication on a daily basis. The Veteran described his pain as pulsating or throbbing head pain. The Veteran also reported experiencing nausea, sensitivity to light, sensitivity to sound, changes in vision and irritability. Pain in the head lasts less than a day and occurs on both sides of the head. The Veteran has characteristic prostrating attacks of migraine/non-migraine headache pain once every month. The Veteran reported that he lost 2 to 4 weeks from work in the past year due to severe head pain. VA treatment records through March 2021 reveal frequent headaches and reflect the Veteran's reports of chronic headaches. At his hearing, the Veteran testified that he experiences severe headaches 2 to 3 times per week. His symptoms include severe pain, nausea, and vomiting. He lays down in a dark room all day and needs help to do anything. He experiences headaches every day, but not as severe normally. He was employed as a bus driver and his headaches interfere with his ability to drive. Additionally, his medications, both for prevention and breakthrough pain, leave him "foggy." His headaches cause him to miss work approximately 2 to 3 days per week. After a careful review of the evidence of record, the Board finds that the Veteran's reports and the findings in his medical records warrant assignment of a 50 percent disability evaluation for his headaches, residuals of TBI. They cause sever economic inadaptability based on their significant interference with his traditional employment as a driver. TDIU Total disability ratings for compensation 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 service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). Substantially gainful employment means, essentially, that the work provides income above the poverty level established by the United States Department of Commerce, without benefit of protected family employment or a sheltered workshop. 38 C.F.R. § 4.16(a). There is no requirement that employment be in a certain field or provide a certain standard of living or income level beyond the poverty level. Factors to be considered in determining entitlement to TDIU include but are not limited to employment history, educational achievement, and vocational attainment. Age is not a factor. 38 C.F.R. § 4.16. Basic eligibility is established where there is one disability rated 60 percent or more, or multiple disabilities rated at least a combined 70 percent, with one disability rated at least 40 percent. 38 C.F.R. § 4.16 (a). The Veteran meets the schedular criteria for TDIU under either measure. As of January 5, 2015, the Veteran's combined disability evaluation was 80 percent based on a 50 percent evaluation for PTSD, a 30 percent evaluation for headaches, 30 percent for cervical strain, 10 percent for tinnitus and 0 percent for a residual scar left hand. Currently, his PTSD is rated 70 percent disabling, headaches are rated as 30 percent disabling, cervical strain is rated 30 percent disabling, cervical radiculopathy right upper extremity is 20 percent disabling, cervical radiculopathy left upper extremity is 20 percent disabling, tinnitus is 10 percent disabling, tendonitis left thumb is 10 percent disabling, painful scar left hand is 10 percent disabling and residual scar left hand is 0 percent disabling. His combined evaluation is 90 percent. At his hearing, the Veteran testified that he was in vocational rehabilitation for business, but he had problems with school and was unable to finish due to his service-connected disabilities. He testified that his medication leaves him foggy, and he does not deal well with stress due to his PTSD. He was a bus driver, but had difficulty driving. The Board finds the Veteran is unemployable due to his service-connected disabilities. In Akles v. Derwinski, 1 Vet. App. 118 (1991), the Court noted the duty to infer a claim for special monthly compensation (SMC) when there was evidence of record indicating potential entitlement. However, in Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242, 250 (2011), the Court stressed that the qualifying total disability must truly be a single disability. While TDIU is a total rating, such must be based on the impact of only one condition to trigger schedular entitlement to SMC at the housebound level. Even where multiple conditions were considered a "single disability" under 38 C.F.R. § 4.16(a), eligibility was not established, as that definition of "single disability" was limited to application of TDIU. Here, the Board finds that the Veteran is entitled to TDIU due to the impact of multiple service-connected conditions, including headaches and PTSD. There is, therefore, no single, totally disabling service-connected disability, and hence the Veteran is not eligible for SMC at the housebound level. The Board has considered the next higher level of SMC, based on the need for the regular aid and attendance of another, but the Veteran does not allege at any time that he needs such assistance, nor does the evidence of record so indicate, and so inference of a claim for SMC at that level is not appropriate. Akles v. Derwinski, 1 Vet. App. 118 (1991); 38 C.F.R. §§ 3.350, 3.352. Withdrawal Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. An appeal may be withdrawn by the appellant or their representative so long as the Veteran and/or claimant is identified, the file number is included, and there is a clear statement of withdrawal identifying the issue(s) withdrawn. 38 C.F.R. §§ 19.55, 20.205. During the December 2021 hearing, the issues of service connection for a right shoulder disability and a left shoulder disability were was withdrawn on the record by the Veteran and his representative; the requirements for withdrawal are met. As the Veteran has withdrawn his appeal on these issues, there remain no allegation of error of fact or law for appellate consideration. Accordingly, the Board has no further jurisdiction in these matters, and the appeals must be dismissed. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Margaret M. Lunger, 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.