Citation Nr: 21075114 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 16-61 559 DATE: December 17, 2021 ORDER Service connection for trauma of the head and body is denied. Service connection for joint pain, to include joint pain of the arms and legs as secondary to psychomotor seizures, is denied. Service connection for loss of motor skills associated with psychomotor seizures is denied. Service connection for degenerative disc disease of the lumbosacral spine, to include as secondary to psychomotor seizures, is denied. Service connection for degenerative disc disease of the cervical spine, to include as secondary to psychomotor seizures, is denied. Service connection for memory loss, to include as secondary to psychomotor seizures, is denied. An evaluation in excess of 10 percent for psychomotor seizures is denied. An initial compensable evaluation for migraine headaches is denied. A total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU) is denied. REMANDED Entitlement to service connection for an acquired psychiatric disability, to include depression and anxiety. FINDINGS OF FACT 1. The Veteran did not experience trauma of the head and body in service. 2. The Veteran's joint pain of the arms and legs is not related to his psychomotor seizures or otherwise related to service. 3. The Veteran does not have a current disability manifested by loss of motor skills. 4. The Veteran's lumbar spine disability is not related to his psychomotor seizures, is not otherwise related to service, and did not manifest within one year of separation from service. 5. The Veteran's cervical spine disability is not related to his psychomotor seizures, is not otherwise related to service, and did not manifest within one year of separation from service. 6. The Veteran does not have a current disability manifested by memory loss. 7. The Veteran has not exhibited any major or minor seizures over the appeal period. 8. The Veteran's headaches are not productive of characteristic prostrating attacks averaging at least once every two months. 9. The Veteran's service-connected disabilities have not rendered him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for service connection for trauma of the head and body are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for joint pain, to include joint pain of the arms and legs as secondary to psychomotor seizures, are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for service connection for loss of motor skills associated with psychomotor seizures are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for service connection for degenerative disc disease of the lumbosacral spine, to include as secondary to psychomotor seizures, are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 5. The criteria for service connection for degenerative disc disease of the cervical spine, to include as secondary to psychomotor seizures, are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 6. The criteria for service connection for memory loss, to include as secondary to psychomotor seizures, are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 7. The criteria for an evaluation in excess of 10 percent for psychomotor seizures are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8914. 8. The criteria for an initial compensable evaluation for migraine headaches are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8100. 9. The criteria for a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1975 to February 1977. This appeal is before the Board of Veterans' Appeals (Board) from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In his December 2016 substantive appeal, the Veteran requested a hearing before the Board via videoconference. A July 2021 hearing was scheduled, but in a letter dated one week prior the Veteran's representative withdrew the request for a hearing. In an August 2021 brief, the Veteran's representative waived regional office jurisdiction for all evidence submitted since the issues were last adjudicated in a November 2016 supplemental statement of the case. The representative further clarified that all service connection issues would be withdrawn if the Board granted at least a 60 percent evaluation for psychomotor seizures, a 30 percent evaluation for migraines, and a TDIU. As the Board does not meet the conditions of this withdrawal, all issues will be decided on the merits. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). For certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 1. Entitlement to service connection for trauma of the head and body The Veteran claims service connection for trauma of the head and body. Service treatment records do not reflect any symptoms of or treatment for traumatic injuries. No head injury was noted when the Veteran was admitted for his seizures in March 1976. When being treating for headaches in October 1976, he reported a head injury from a motorcycle accident three years prior but was very vague about the chronology. In November 1976 he reported a history of a motorcycle accident with loss of consciousness and skull fracture. No head injury abnormality was noted at his November 1976 separation examination. Post-separation military treatment records reflect that in January 1977 the Veteran was admitted for recurrent headaches and possible psychomotor seizures. He reported a motorcycle accident three years prior with loss of consciousness for approximately one hour. There were no sequelae at the time of the accident. He was diagnosed with complex psychomotor seizure disorder. At a December 2010 VA examination for his psychomotor seizures, the Veteran reported a history of traumatic brain injury (TBI) in 1975. He was unable to give details. VA treatment records reflect that at a December 2010 neurology consultation the Veteran reported that he was exposed to an explosion with blast injuries in service and in addition was beaten severely without bone fractures. He stated that he had no recollection of any of the events involved with this accident but knows he was treated inpatient for weeks. At a January 2012 VA examination, the examiner opined that the Veteran's psychomotor seizures and migraines were at least as likely as not due to an in-service TBI from a motorcycle accident. This opinion was based on the rationale that his treatment records support the claim that the Veteran experienced a TBI in service. Confusingly, the examiner also stated that while the symptoms had an onset in 1975, the claims file indicated that the TBI occurred in 1973, prior to induction. In his January 2012 claim, the Veteran reported that he was treated by medics in the field for trauma to his head and body, then transferred to a hospital where he was treated for headaches, migraines, and loss of memory. He was later diagnosed with psychomotor seizures. He described symptoms of loss of memory, depression, anxiety, headaches, and loss of motor skills. The Veteran underwent a VA examination in July 2012. The examiner found him to be a poor historian. The examiner opined that the Veteran did not suffer a TBI while in service. This opinion was based on the rationale that his service treatment records did not show such an in-service injury, though records indicated reports of a motorcycle accident with a skull fracture prior to service. In a December 2012 addendum, the examiner specified that in September 1976 the Veteran reported that he had a 4-5-year history of headaches, in October 1976 he reported that he had a 4-5-year history of headaches and a head injury from a motorcycle accident three years prior, and in January 1977 he stated that he had a TBI three years prior. The examiner therefore placed any head injury in 1973 or 1974 and prior to his January 1975 induction. The Board finds that the evidence weighs against a finding that the Veteran experienced trauma of the head and body in service. While the January 2012 VA examiner stated that the Veteran's psychomotor seizures were related to an in-service head injury, this opinion contradicts itself and the record evidence. The examiner stated that the head injury occurred in 1973, apparently unaware that this was not during the Veteran's service. In contrast, the July 2012 VA examiner gave a probative opinion consistent with the evidence of record. The examiner explained that the record shows that to the extent the Veteran experienced a TBI, it occurred prior to his induction into service. The Veteran's own statements about such trauma have been vague and contradictory. Indeed, his statements in service were equally vague, but uniformly suggest that if an accident occurred, it occurred prior to service. There is no direct record of treatment for a head injury in service, nor is there any mention of recent treatment. His admission for seizures in March 1976 makes no mention of a head injury or history thereof, and do not relate the diagnosis of seizures to any trauma. The July 2012 VA examiner's opinion is thus more probative than the January 2012 VA examiner's opinion. For these reasons, the Board finds that the evidence weighs against a finding that the Veteran experienced trauma of the head and body in service, and service connection is therefore denied. The Board notes that because no abnormality was noted at his January 1975 enlistment examination, the Veteran was presumed sound upon entry. Thus, any disability documented in service related to such a pre-service injury may be presumptively service connected. See 38 C.F.R. § 3.304(b). But because the injury did not occur in service, service connection for specific residuals of a TBI or other traumatic injury is not warranted absent a separate connection to service. 2. Entitlement to service connection for joint pain, to include joint pain of the arms and legs as secondary to psychomotor seizures The Veteran claims service connection for joint pain in his arms legs secondary to his seizures. Service treatment records reflect that when the Veteran was admitted in February 1976 for treatment of his claimed seizures, he reported associated weakness and numbness in his right arm and leg. He reported the same during subsequent treatment. No such abnormality was noted at his November 1976 separation examination. In his December 2010 claim, the Veteran attributed his joint pain to blunt force trauma injuries to the head and body which he claims produced his seizures. In a January 2012 statement, the Veteran claimed that he had current arm and leg pain due to in-service trauma of the head and body. The Veteran underwent a VA examination in July 2012. He denied any service-related pains in his upper or lower extremities. The examiner opined that joint pains are not related to psychomotor seizures. This opinion was based on the rationale that the Veteran did not claim a direct relationship between the seizures themselves and his joint pain, and the evidence did not indicate that any injury causing these disabilities occurred in service. The Board finds that the evidence weighs against a finding that the Veteran's joint pains of the arms and legs are related to his psychomotor seizures or are otherwise related to service. The VA examiner explained that there is no medical relationship between seizures and his current joint pains, and there is no medical evidence to contradict this finding. Indeed, it appears that while the Veteran claims secondary service connection, what he intended to claim was that his current joint pains arose from the same in-service injury which he claims caused his seizures. As discussed above, the evidence shows that to the extent that the Veteran's seizures were caused by any trauma, such trauma occurred prior to service. For these reasons, the Board finds that the evidence weighs against a finding that the Veteran's joint pains of the arms and legs are related to his psychomotor seizures or are otherwise related to service. Service connection is therefore denied. 3. Entitlement to service connection for loss of motor skills associated with psychomotor seizures The Veteran claims service connection for loss of motor skills associated with his psychomotor seizures. Service treatment records do not reflect any symptoms of or treatment for loss of motor skills. No such abnormality was noted at the Veteran's November 1976 separation examination. In his January 2012 claim, the Veteran claimed that he had current loss of motor skills as a symptom of his psychomotor seizures. The Veteran underwent a VA examination in July 2012. The examiner was unable to offer an opinion as to whether his reported loss of motor skills was related to psychomotor seizures because the etiology of his diagnoses was unclear, and he did not have a current diagnosis of seizures. The Board finds that the evidence weighs against a current disability of loss of motor skills. While the Veteran is competent to report loss of motor skills, his reports of all symptoms are inconsistent and lack credibility, as discussed in more detail throughout this decision. Furthermore, his subjective reports appear entirely connected with his claims for compensation, without support in his treatment records. He has not been given any specific diagnosis of lost motor skills. Where the evidence does not support a finding of current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As such, the Board finds that the evidence weighs against a finding of a current disability and service connection must therefore be denied. 4. Entitlement to service connection for degenerative disc disease of the lumbosacral spine, to include as secondary to psychomotor seizures The Veteran claims service connection for a low back disability secondary to his psychomotor seizures. Service treatment records do not reflect any symptoms of or treatment for a low back disability. No such abnormality was noted at the Veteran's November 1976 separation examination. In his December 2010 claim, the Veteran attributed his back pain to blunt force trauma injuries to the head and body which he claims produced his seizures. VA treatment records reflect that in August 2011 the Veteran reported that he was just released from jail and had been beaten by police. He stated that he had low back pain, but had had problems with chronic back pain since service in Vietnam. At a January 2012 VA examination for his seizures and headaches, the Veteran reported that he believed that his back pain was related to an in-service accident, but he could not recall the details. The Veteran underwent a VA examination in January 2012. He reported a history of in-service TBI in 1975 and stated that he was treated in service for low back pain. He was diagnosed with degenerative disc disease of the lumbar spine. The examiner opined that the disability was less likely than not related to service. This opinion was based on the rationale that there was no treatment for a low back pain in service, but there was a reported history of motorcycle wreck with loss of consciousness prior to service which could have caused his disability. In a January 2012 statement, the Veteran claimed that he had current back pain due to in-service trauma of the head and body. The Veteran underwent a VA examination in July 2012. He reported back pain since he was beat up in service in 1975. He was diagnosed with moderate lumbosacral degenerative disc disease and disc herniation. The examiner opined that back pain is not related to psychomotor seizures. This opinion was based on the rationale that the Veteran did not claim a direct relationship between the seizures themselves and his back pain, and the evidence did not indicate that any injury causing these disabilities occurred in service. The Board finds that the evidence weighs against a finding that the Veteran's low back disability is related to his psychomotor seizures, is otherwise related to service, or manifested within one year of separation from service. The VA examiner explained that there is no medical relationship between seizures and his current low back disability, and there is no medical evidence to contradict this finding. Indeed, it appears that while the Veteran claims secondary service connection, what he intended to claim was that his current back pain arose from the same in-service injury which he claims caused his seizures. As discussed above, the evidence shows that to the extent that the Veteran's seizures were caused by any trauma, such trauma occurred prior to service. Furthermore, there is no medical evidence that a lumbar spine disability manifested within one year of separation from service. For these reasons, the Board finds that the evidence weighs against a finding that the Veteran's low back disability is related to his psychomotor seizures, is otherwise related to service, or manifested within one year of separation from service. Service connection is therefore denied. 5. Entitlement to service connection for degenerative disc disease of the cervical spine, to include as secondary to psychomotor seizures The Veteran claims service connection for a neck disability secondary to his psychomotor seizures. Service treatment records do not reflect any symptoms of or treatment for a neck disability. No such abnormality was noted at the Veteran's November 1976 separation examination. VA treatment records reflect that in October 2010 the Veteran was diagnosed with mild degenerative joint disease of the cervical spine. In his December 2010 claim, the Veteran attributed his neck pain to blunt force trauma injuries to the head and body which he claims produced his seizures. At a January 2012 VA examination for his seizures and headaches, the Veteran reported that he believed that his neck pain was related to an in-service accident, but he could not recall the details. The Veteran underwent a VA examination in January 2012. He reported a history of in-service TBI in 1975 and stated that he was treated in service for neck pain. He was diagnosed with degenerative disc disease and degenerative joint disease of the cervical spine. The examiner opined that the disability was less likely than not related to service. This opinion was based on the rationale that there was no treatment for neck pain in service, but there was a reported history of motorcycle wreck with loss of consciousness prior to service which could have caused his disability. In a January 2012 statement, the Veteran claimed that he had current neck pain due to in-service trauma of the head and body. The Veteran underwent a VA examination in July 2012. He reported neck pain since he was beat up in service in 1975. He was diagnosed with degenerative disc disease of the cervical spine. The examiner opined that neck pain is not related to psychomotor seizures. This opinion was based on the rationale that the Veteran did not claim a direct relationship between the seizures themselves and his neck pain, and the evidence did not indicate that any injury causing these disabilities occurred in service. The Board finds that the evidence weighs against a finding that the Veteran's neck disability is related to his psychomotor seizures, is otherwise related to service, or manifested within one year of separation from service. The VA examiner explained that there is no medical relationship between seizures and his current neck disability, and there is no medical evidence to contradict this finding. Indeed, it appears that while the Veteran claims secondary service connection, what he intended to claim was that his current neck pain arose from the same in-service injury which he claims caused his seizures. As discussed above, the evidence shows that to the extent that the Veteran's seizures were caused by any trauma, such trauma occurred prior to service. Furthermore, there is no medical evidence that a cervical spine disability manifested within one year of separation from service. For these reasons, the Board finds that the evidence weighs against a finding that the Veteran's neck disability is related to his psychomotor seizures, is otherwise related to service, or manifested within one year of separation from service. Service connection is therefore denied. 6. Entitlement to service connection for memory loss, to include as secondary to psychomotor seizures The Veteran claims service connection for memory loss secondary to his psychomotor seizures. Service treatment records do not reflect any symptoms of or treatment for memory loss. No such abnormality was noted at the Veteran's November 1976 separation examination. In his December 2010 claim, the Veteran reported memory loss with no particular pattern due to his psychomotor seizures. At a December 2010 VA examination for his psychomotor seizures, the Veteran reported lapses of memory which interfere with job performances. VA treatment records reflect that at a March 2012 neuropsychological evaluation the Veteran reported difficulties with memory which he was unable to specify initially. His wife indicated that his recall was poor, and he stated that he had difficulty recalling if he had seen a television episode before, frequently forgot where he and his wife were going when running errands and was unable to operate a PDA despite his reports that he "created" PDAs. He reported that his difficulties began in 1975 with an in-service head injury. He was unable to provide any details regarding the injury. His performance on an objective measure of effort was invalid and indicative of poor effort. His neuropsychologist stated that poor performance on this measure can be due to malingering of cognitive symptoms as well as severe psychiatric distress, pain, or fatigue. The Veteran endorsed pain and fatigue but also endorsed secondary gain, stating that he wanted to increase is service connection. As such, the neuropsychologist stated that malingering remained a viable possibility. Further cognitive testing was thus discontinued. The Veteran underwent a VA examination in July 2012. The examiner was unable to offer an opinion as to whether his reported amnesia was related to psychomotor seizures because the etiology of his diagnoses was unclear, and he did not have a current diagnosis of seizures. The Board finds that the evidence weighs against a current disability of memory loss. While the Veteran is competent to report memory loss, his reports of all symptoms are inconsistent and lack credibility, as discussed in more detail throughout this decision. In contrast, the most probative medical evidence relevant to his memory loss is the March 2012 neuropsychological evaluation which showed a poor effort on cognitive testing that suggested malingering motivated by secondary gain. The neuropsychologist thus did not diagnose the Veteran with a memory loss disability. Where the evidence does not support a finding of current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As such, the Board finds that the evidence weighs against a finding of a current disability and service connection must therefore be denied. Increased Ratings Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 7. Entitlement to an evaluation in excess of 10 percent for psychomotor seizures The Veteran claims an increased rating for his psychomotor seizures. The Veteran's seizures are rated as epileptic seizures under 38 C.F.R. § 4.124a, Diagnostic Code 8914. This code directs that seizures be rated under the General Rating Formula for Major and Minor Epileptic Seizures ("Seizure Formula"). In the presence of major and minor seizures, the rating is to be based on the predominant type. A major seizure is defined as a seizure characterized by automatic states and/or generalized convulsions with unconsciousness. There is no distinction between diurnal and nocturnal major seizures. A minor seizure is defined as a brief transient episode of random motor movements, hallucinations, perceptual illusions, autonomic disturbances, or abnormalities of thinking, memory, or mood. Under the Seizure Formula, a 10 percent rating is warranted for a confirmed diagnosis of epilepsy with a history of seizures. A minimum 10 percent rating is warranted for when continuous medication is necessary for the control of epilepsy. A 20 percent rating is warranted for at least one major seizure over the prior 2 years or at least 2 minor seizures over the prior 6 months. A 40 percent rating is warranted for at least one major seizure over the prior 6 months or at least 5-8 minor seizures weekly. A 60 percent rating is warranted for averaging at least one major seizure in 4 months over the prior year or 9-10 minor seizures per week. An 80 percent rating is warranted for averaging at least one major seizure in 3 months over the prior year or more than 10 minor seizures per week. A 100 percent rating is warranted for averaging at least one major seizure per month over the prior year. VA treatment records reflect that in October 2010 the Veteran was noted to have a history of psychomotor seizures. He denied recent seizures. In December 2010 he reported that on occasion he had episodes of loss of consciousness lasting a few minutes without involuntary movements, bladder incontinence, tongue biting, or post-event confusion, but sometimes with residual right hemiparesis. In a December 2010 statement, the Veteran reported that he had seizures about once every three months. The Veteran underwent a VA examination in December 2010. He reported onset of seizures after onset of headache or migraine if it is not taken care of. He stated that he did not take antiseizure medication because it sedates him to the point of not being able to function. He was diagnosed with psychomotor seizures. VA treatment records reflect that during mental health inpatient treatment in August 2011, the Veteran and his spouse provided history that was frequently contradictory and of questionable reliability. His wife stated that he experiences seizures that last 10 minutes to an hour, never with loss of bladder or bowel control. He sometimes has mental status changes or loss of consciousness and rarely has jerky movements with falling ot the ground. The Veteran underwent another VA examination in January 2012. He reported that he occasionally loses consciousness with his seizures. His last episode was 10 days prior with dysarthria and weakness on the right side. The examiner opined that his psychomotor seizures rendered him unemployable. The examiner explained that he had daily mild seizures that cause mild confusion affecting his memory. VA treatment records reflect that at a March 2012 neuropsychological evaluation the Veteran reported a history of temporal lobe seizures and head trauma, including head being struck against a wall the past summer during an altercation with the police. He reported poor concentration and memory. He stated that he had a seizure approximately once every three months. His wife described these seizures as him becoming "dead weight" for 10 minutes to two hours. Both the Veteran and his wife denied any convulsing or loss of bladder control. He stated that he experiences right hemiparesis and right facial droop for several hours to several days following a seizure. Based on objective neuropsychological testing, history gathered by interview, and review of the medical records, evidence suggested that the Veteran exhibited somatic pseudoseizures that were purely psychiatric or the result of malingering. The Veteran underwent a VA examination in July 2012. The examiner noted that most of his reports of seizures has not been substantiated by neurologists, and it was thus difficult to complete the examination questionnaire based on subjective data. He reported generalized tonic-clonic convulsions, unconsciousness, brief interruptions of consciousness, staring, sudden loss of postural control, complete or partial loss of use of extremities, random motor movements, and psychotic manifestations. Based on interview and record review, however, the examiner was unable to confirm any history of minor or major seizures. The Veteran has submitted an August 2019 opinion from private neurologist. Based on review of the record, the neurologist opined that his seizures were the equivalent of epilepsy averaging at least one major seizure in three months or more than 10 minor seizures weekly. The neurologist stated that the Veteran's November 1976 electroencephalogram was consistent with right temporal lobe seizure disorder and noted that the presence of pseudoseizures does not exclude the presence of epileptic seizures. The neurologist stated that the Veteran's July 2011 reports of lapses of consciousness about once every three months constituted major seizures warranting an 80 percent rating. The Board finds that an evaluation in excess of 10 percent is not warranted for the Veteran's psychomotor seizures. Higher ratings are available for at least one major seizure every 2 years or at least 2 minor seizures every 6 months. The evidence weighs against such symptoms. The August 2019 private opinion provided by the Veteran criticized VA for failing to grant a rating based on his lay reports of major seizures. The opinion, however, relies heavily on the Veteran's lay reports, and does not account for his demonstrated lack of credibility. Similarly, the January 2012 VA examiner found that the Veteran experienced daily mild seizures that caused mild confusion affecting his memory. There is no medical evidence, however, to support the Veteran's reports of seizures. The medical professionals who actually treat him have on numerous occasions explicitly noted that he is a poor and inconsistent historian. He has multiple diagnoses of suspected malingering and somatic pseudoseizures, and the July 2012 VA examiner was unable to confirm any history of major or minor seizures. The August 2019 private opinion notes that the presence of pseudoseizures does not exclude the presence of epileptic seizures, but his treatment records make no such differentiation based on his reported and observed symptoms. There is no credible evidence that the Veteran has had any actual seizures over the appeal period, and an increased rating for psychomotor seizures is therefore denied. 8. Entitlement to an initial compensable evaluation for migraine headaches The Veteran claims a compensable rating for his migraine headaches. The Veteran's headaches are rated as migraine headaches under 38 C.F.R. § 4.124a, Diagnostic Code 8100. Under this code, headaches are rated at 0 percent with less frequent attacks. A 10 percent rating is warranted for headaches with characteristic prostrating attacks averaging one in two months over a period of several months. A 30 percent rating is warranted for headaches with characteristic prostrating attacks occurring on an average once a month over a period of several months. The maximum rating of 50 percent is warranted for headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. VA treatment records reflect that in October 2010 the Veteran reported migraines causing insomnia. He was diagnosed with multifactorial headaches with qualities of both cervicogenic and chronic daily headaches. In November 2010 he reported daily headaches localized to the top of the head, lately radiating to the left ear. He reported intermittent photophobia and sonophobia. He denied nausea or vomiting. He reported an episode one month prior in which he was unconscious with right upper extremity weakness lasting about 15-20 minutes. He stated that his headaches ranged in severity from 5-8 most of the time and went to 10 about twice a month, when he had to take Tylenol with codeine, use an ice pack, and stay in a dark quiet room. He stated that use of codeine prevented the headaches from developing into "unconscious periods" or seizures. In December 2010 he reported daily headaches fluctuating in severity. His neurologist attributed his daily headaches to overuse of analgesics. In his December 2010 claim, the Veteran reported headaches and migraines for 1-24 hours every week. At a December 2010 VA examination for psychomotor seizures, the Veteran reported chronic migraines with daily headaches. VA treatment records reflect that in October 2011 the Veteran reported to his neurologist that he had been beaten in the head by police in August 2011, and that since this time his headaches had been daily. He stated that he could not recall when he last had a severe headache, but he had not had one in a long time. He was diagnosed with chronic daily headache, probably mixed migraine tension headache, medication overuse headache, or cannabis abuse headache. The Veteran underwent a VA examination in January 2012. He reported migraine headaches mostly daily, rated at 4-5/10. Every couple of months he got severe migraines rated at 10/10 associated with visual changes, nausea, vomiting, and light and sound sensitivity. The Veteran underwent another VA examination in July 2012. He reported headaches consisting of pain on both sides of the head with nausea, vomiting, and sensitivity to light and sound, typically lasting two days or less. The examiner noted that he experienced characteristic prostrating attacks occurring less than once every two months. He was diagnosed with migraine and tension headaches. The Veteran has submitted an August 2019 opinion from private neurologist. Based on review of the record, the neurologist opined that his headaches were productive of migraines with characteristic prostrating attacks occurring on an average of once per month over the prior several months. The neurologist based this on VA's refusal to consider the Veteran's August 2012 report that his headaches ranged in severity from 5-8 most of the time and went to 10 about twice a month, when he had to take Tylenol with codeine, use an ice pack, and stay in a dark quiet room. The Board finds that a compensable evaluation is not warranted for the Veteran's headaches. Compensable ratings are available based on characteristic prostrating attacks averaging at least once every two months. The evidence weighs against such symptoms. The August 2019 private neurologist's opinion found that compensable ratings were warranted based on the Veteran's August 2012 report of episodes occurring twice per month. A closer reading of the Veteran's treatment records, however, shows that the report in the August 2012 is not a description made by the Veteran in August 2012, but rather is a word-for-word recitation of his earlier report to the pain clinic in November 2010, one month prior to his claim of service connection. His headaches were not again described this this frequency. As such, the July 2012 VA examiner's analysis of the Veteran's headaches is more probative. It is not only more current, given that it is based on reports during the appeal period, but the examiner analyzed the Veteran's headaches based on his reports at the examination and on review of the record, including the November 2010 reports that were subsequently duplicated in August 2012 and relied upon by the August 2019 private opinion. Furthermore, given the Veteran's noted credibility issues, the Board finds the July 2012 VA examiner's report more probative because it, unlike the August 2019 opinion, was based on an interview of the Veteran. For these reasons, the Board finds that a compensable evaluation is not warranted for the Veteran's headaches. 9. Entitlement to a TDIU The Veteran seeks a TDIU. He contends that his service-connected disabilities, when considered in combination, render him unemployable. Total disability means that there is present any impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15. A substantially gainful occupation has been defined as "an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income." Faust v. West, 13 Vet. App. 342 (2000). When jobs are not realistically within his physical and mental capabilities, a veteran is determined unable to engage in a substantially gainful occupation. Moore v. Derwinski, 1 Vet. App. 356 (1991) (citing Timmerman v. Weinberger, 510 F.2d 439 (8th Cir. 1975)). In making this determination, consideration may be given to factors such as the veteran's level of education, special training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A veteran is totally disabled if his service-connected disability or combination of service-connected disabilities is rated at 100 percent pursuant to the Schedule for Rating Disabilities. 38 C.F.R. § 3.340(a)(2). Even if a veteran is less than 100 percent disabled, he still is deemed totally disabled under the Schedule for Rating Disabilities if he satisfies two requirements. 38 C.F.R. § 4.16(a). First, the veteran must meet a minimum percent evaluation. If he has one service-connected disability, it must be evaluated at 60 percent or more. If he has two or more service-connected disabilities, at least one disability must be evaluated at 40 percent or more and the combined evaluation of all the disabilities must be 70 percent or more. The following will be considered as one disability with respect to the minimum percent evaluation: (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. Second, the veteran must be found to be unable to secure and follow a substantially gainful occupation as a result of his service-connected disability or disabilities. Id. Where a veteran does not meet the percentage evaluation requirements under 4.16(a), he still may be deemed totally disabled on an extraschedular basis under 38 C.F.R. § 4.16(b) when the evidence nonetheless indicates that the veteran is unemployable by reason of his service-connected disabilities. Under such circumstance the matter is referred to the Director of the Compensation and Pension Service ("Director") for consideration. Id.; see also Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). Extraschedular TDIU consideration requires contemplation of the following factors: severity of the veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). Although the Board does not have the authority to award an extraschedular TDIU prior to referral to the Director, the Board has jurisdiction to review and award extraschedular ratings in claims that have been denied by the Director. See Kuppamala v. McDonald, 27 Vet. App. 447 (2015). In determining whether a TDIU is warranted, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. In his December 2010 application for a TDIU, the Veteran reported that his psychomotor seizures rendered him unemployable in 2010. He reported that he had not worked since July 2007, when his job as chief financial officer ended after the business closed. He reported that he had a doctoral degree in information technology and that his most recent job paid him $160,000 per year. At his December 2010 VA examination for psychomotor seizures, the Veteran reported that he is not working because his memory lapses prevent him from having a positive interview. He was unable to answer questions quickly without stopping to think, and he was not interviewing well to get a job. He described a work history from 1977 to 2006 of jobs in various fields, including teaching, information technology, and telecommunications and satellite services. In a January 2012 application for TDIU, the Veteran reported that he became too disabled to work due to his psychomotor seizures in 2007. He identified jobs he held from 2005 to 2007, specifically network engineer, supervisor, and office worker. He stated that the most he ever earned was $120,000 per year in the 1980s as a director of MCI. He stated that he received his doctorate in information technology in 2005. The Veteran has submitted an August 2019 opinion from private neurologist. Based on review of the record, the neurologist opined that the Veteran's headaches and seizures rendered him unemployable since December 2010. The neurologist noted the Veteran's December 2010 statement stating that he suffered frequent and severe migraine headaches with seizures happening about once every three months. The Veteran reported lapses of memory related to his seizure disorder which impact his ability to work. The neurologist further stated that his daily migraines affected his ability to concentrate and think clearly. For the entirety of the appeal period, the Veteran is in receipt of a 10 percent rating for psychomotor seizures and a noncompensable rating for headaches. His combined rating is thus 10 percent, and he is ineligible for a schedular TDIU under 38 C.F.R. § 4.16(a). The question before the Board is whether remand is warranted to refer the Veteran's claim for consideration of an extraschedular TDIU under 38 C.F.R. § 4.16(b). The Board finds that the evidence weighs against a finding that the Veteran's service-connected disabilities have not rendered him unemployable or unable to secure and follow a substantially gainful occupation. As discussed in denying him increased ratings above, despite the Veteran's reports to the contrary, the evidence weighs against a finding of major or minor seizures or frequent prostrating headache attacks. To the extent that the Veteran experiences current pseudoseizures, these are at most related to an acquired psychiatric disability for which he is not yet service connected. The Veteran has reported significant attainment in his work history and education, though as discussed above, his credibility renders these reports suspect. His current service-connected disabilities, however, are not currently productive of symptoms that would significantly interfere with any individual's employability. For these reasons, the Board finds that the evidence weighs against a finding that the Veteran's service-connected disabilities have rendered him unemployable or unable to secure and follow a substantially gainful occupation. Referral for consideration of an extraschedular TDIU is, therefore, not warranted. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disability, to include depression and anxiety The Veteran claims service connection for a mental health disability. The Board finds that remand is necessary for a new VA examination. Service treatment records reflect that in August 1976 the Veteran requested a mental health consultation. He felt that his unit was trying to make him crazy. He reported that he had attempted to commit suicide once but assured that he would not try again. He was noted to be at times irrational. He was diagnosed with mild neurosis and referred to his chaplain. No such abnormality was noted at his November 1976 separation examination. VA treatment records reflect that in April 1998 the Veteran reported chronic depression for several years. He reported that he was currently on Prozac prescribed by a private provider. VA treatment records reflect that in October 2010 the Veteran reported feelings of depression over his inability to provide for his family. At a December 2010 neurology consultation, the Veteran reported anxiety, difficulty sleeping, cognitive difficulties, nightmares, and flashbacks. He was diagnosed with posttraumatic stress disorder (PTSD) related to his TBI. At a mental health intake appointment later that month, he stated that he wanted to restart Prozac for depression and anxiety, but did not want to give specifics about how he got his head injury. He was diagnosed with anxiety. In January 2011 he reported that his days were intolerable due to poor economy, lack of work, and financial stressors. He reported low energy, lack of motivation, and sleep problems. VA treatment records further reflect that in August 2011 the Veteran presented at the emergency room after being released from jail, stating that he had been beaten by police. Two days later he was brought to urgent care after being found wandering aimlessly in the hallways yelling that he was dehydrated and needed morphine. He insisted that he was supposed to be airlifted to Walter Reed. He was diagnosed with erratic behavior, psychosis, and depression. He was noted to be intrusive, disorganized, and grandiose. He was uncooperative, but after interview with his spouse he was diagnosed with bipolar disorder with psychotic features, rule-out mood disorder secondary to organic brain injury, and rule-out substance induced mood disorder. He plugged up his shower drain with his socks causing it to overflow; when asked why this happened, he stated that he thinks that he had a seizure in the shower. His psychiatrist noted a high suspicion of malingering seizures and pain in order to obtain narcotics and special privileges. He was noted to have narcissistic tendencies outside of the grandiosity associated with mania. He was discharged after a week with a diagnosis of substance-induced mental disorder attributed to serotonin loading and cannabis with a rule-out diagnosis of affective psychotic disorder. VA treatment records show that approximately one week later the Veteran again presented to the emergency room exhibiting bizarre behavior and was admitted given uncertain living arrangements and poor judgment. He claimed to be a doctor "to the seventh power" who prescribed himself Prozac and that he had checked himself in to continue to provide medical care to his fellow patients. He had no prior psychiatric history apart from treatment for depression. He exhibited a mixed picture of mania versus personality disorder. He was given rule-out diagnoses of bipolar affective disorder with psychosis, mood disorder secondary to brain injury, substance induced mood disorder, and anxiety disorder by history. During the first night of his admission, he walked slowly up and down the halls stating that he was having a seizure and requesting medication. History provided by his wife and was frequently contradictory and of questionable reliability. She further reported that during their 13 years of marriage he had maintained that he had been a prisoner of war in Vietnam; she had recently found out that he enlisted after the war ended. His psychiatrist noted that this appeared to be an intentional misrepresentation for attention or sympathy on the part of the Veteran, as opposed to a genuine delusional belief. His psychiatrist further noted that while his behavior was bizarre, it appeared to be volitional and intentional and may have been driven by personality disorder or by secondary gain, given that recent "delusional" ideation including claiming to be a physician and a general in the Army seemed to time with recent legal problems. He was given rule-out diagnoses of polysubstance abuse, somatization disorder, and malingering. In November 2011 his presentation was more consistent with a depressed episode, and he was diagnosed with moderate bipolar disorder. At a January 2012 VA examination for his seizures and headaches, the Veteran reported depression and denied anxiety and mood swings. VA treatment records reflect that at a March 2012 neuropsychological evaluation the Veteran's performance on an objective measure of effort was invalid and indicative of poor effort. His neuropsychologist stated that poor performance on this measure can be due to malingering of cognitive symptoms as well as severe psychiatric distress, pain, or fatigue. The Veteran endorsed pain and fatigue but also endorsed secondary gain, stating that he wanted to increase is service connection. As such, malingering remained a viable possibility. Further cognitive testing was thus discontinued. On a psychodiagnostics measure, his approach to answering questions revealed an unsophisticated effort to appear overly virtuous and minimize his true pathology. Based on objective neuropsychological testing, history gathered by interview, and review of the medical records, evidence suggested that the Veteran exhibited somatic pseudoseizures that were purely psychiatric or the result of malingering. The Veteran underwent a VA examination in June 2012. He reported that he saw a mental health provider somewhere around 1995 to 2000 because of his reaction to his divorce. At the time he was placed on Prozac and remained so for about five years. He stated that he asked to resume Prozac in 2010 due to depression. The examiner noted that the case was difficult as there were indications in the record that he was in a motorcycle accident while in service though this actually occurred prior to induction. The examiner further noted that other mental health professionals had concerns that the Veteran was a malingerer. The examiner with some reservations diagnosed bipolar disorder, but found it was not more likely than not the result of his primary psychomotor seizures. In a November 2012 addendum, the examiner could not say it was at least as likely as not that the Veteran's seizure disorder aggravated the normal progression of his bipolar illness beyond its natural progression. The Board finds that remand is necessary because the June 2012 VA examination and its November 2012 addendum are inadequate. The examiner's opinion that the Veteran's disability is "not more likely than not" the result of his seizures is not sufficient to decide the appeal on an equipoise standard. As such, on remand, the examiner must give an opinion as to whether such a relationship is at least as likely as not. More importantly, no opinion was given whether the Veteran's current diagnosis is related to his in-service reports of mental health distress in August 1976. On remand, the examiner must also provide an opinion as to direct service connection. The matter is REMANDED for the following action: 1. Obtain and associate with the claims file any additional medical evidence that may have come into existence but has not been associated with the record. 2. Schedule the Veteran for a VA psychiatric examination. The claims file must be reviewed by the examiner. Following a review of the claims file and any clinical examination results, the examiner should offer an opinion as to the following: (a.) Describe the nature and identify the diagnosis of any acquired psychiatric disorder present during the pendency of this claim. (b.) Determine whether it is at least as likely as not (i.e., 50 percent probability or more) that any acquired psychiatric disability is related his August 1976 service treatment record in which the Veteran requested mental health treatment and reported a prior suicide attempt. (c.) Determine whether it is at least as likely as not (i.e., 50 percent probability or more) that any acquired psychiatric disability was caused or aggravated by his service-connected psychomotor seizures. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. After completing the above, and any other development deemed necessary, readjudicate the appeal. If any benefit sought remains denied, return the appeal to the Board. A. ADAMSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Gallagher, 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.