Citation Nr: 21076904 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 10-18 177 DATE: December 28, 2021 ORDER Entitlement to a 50 percent disability rating for residuals of shell fragment wounds (SFW) to the skull with headaches is granted from September 20, 2007, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from September 20, 2007 to July 25, 2013 and from June 1, 2018 is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. Throughout the appellate period, the Veteran's headaches were productive of frequent completely prostrating and prolonged attacks capable of producing severe economic inadaptability. 2. Throughout the appellate period, the Veteran's service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment for which would otherwise be qualified. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 50 percent for migraine headaches are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.3, 4.10, 4.124a, Diagnostic Code (DC) 8100. 2. The criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active, honorable service from February 1960 to May 1962 and from February 1966 to November 1970. Subsequent service from November 1970 to May 1975 was under other than honorable conditions and is considered a bar to Department of Veterans Affairs (VA) benefits. The Veteran received the Combat Infantryman Badge (CIB) and the Purple Heart Medal. This matter comes before the Board of Veterans' Appeals (Board) from a VA Agency of Original Jurisdiction (AOJ) rating decision. The Veteran testified before the undersigned at a May 2017 Board hearing. A transcript of the hearing is of record. In May 2019, the Board, in pertinent part, denied the Veteran's claim for entitlement to a disability rating in excess of 10 percent for SFW to the skull with headaches. The Veteran appealed that decision. In April 2020, the United States Court of Appeals for Veterans Claims (Court), pursuant to a Joint Motion for Partial Remand (JMR), vacated the Board's May 2019 Board decision. In March 2021, the Board remanded this matter to the AOJ for further development. The Board notes that the May 2019 Board decision also remanded the issues of entitlement to service connection for a right shoulder disability, entitlement to rating in excess of 20 percent for residuals of SFW of the left shoulder; and entitlement to eligibility for adaptive automobile or adaptive equipment. After completion of the Board remand directives, the AOJ issued a supplemental statement of the case (SSOC) in May 2020. In June 2020, the Veteran filed a VA Form 20-0996 Request for Higher Level Review and opted into the Appeals Modernization Act (AMA) system of review, thereby withdrawing these issues from VA's legacy review system. Thus, these issues are no longer on appeal to the Board. These matters were subsequently addressed in a November 2020 AOJ Higher Level Review decision with an associated Higher Level Review return decision due to duty to assist errors on two of the three issues, and appear to be subject to ongoing adjudication by the AOJ. See also December 2020 AOJ correspondence. Finally, the record indicates that the record is not complete. Notably, there is some evidence that the Veteran served under a different name. VA is currently determining whether there are service treatment records under the Veteran's other name. However, as this appeal does not rely on the Veteran's service treatment records, and it is a full grant of benefits sought, the Board finds that remanding for any possible service treatment records is unnecessary. 1. Headaches The Veteran has requested a rating higher than 10 percent for his service-connected SFW residuals of the skull with headaches. The Veteran testified at a May 2017 Board hearing that he gets bad headaches frequently and has to take Tylenol. He stated that sometimes when he has a severe headache, he cannot do anything, and has to just sit. He stated that he gets severe headaches with dizziness every day. The Veteran was initially granted service connection for SFW residuals of the skull with headaches in an October 1983 rating decision and assigned a 10 percent evaluation under Diagnostic Code 5296, which evaluates loss of part of the skull. The Board notes, however, that there is no medical evidence indicating that the Veteran has had any loss of the skull, and the Veteran's primary contention regarding his SFW residuals is that they cause headaches. The most appropriate rating criteria for evaluating the Veteran's symptoms, which he has clearly stated are frequent headaches, is Diagnostic Code 8100, for migraine headaches. See 38 C.F.R. § 4.20. The Veteran's SFW residuals of the skull were therefore correctly evaluated in the January 2019 supplemental statement of the case under Diagnostic Code 8100 for migraine headaches. The Board also notes that in a February 2019 rating decision, entitlement to separate service connection for traumatic brain injury was granted, effective December 19, 2017, under Diagnostic Code 8045. The 40 percent evaluation was assigned based on the VA examination that found that the Veteran had mildly impaired judgment and neurobehavioral effects that frequently interfere with workplace interaction, social interaction. The Board finds that the Veteran's cognitive symptoms which have been found to be associated with his explosion injury in service are therefore already contemplated by the separate diagnosis and grant of service connection for traumatic brain injury. Diagnostic Code 8045 states to separately evaluate any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache, even if that diagnosis if based on subjective symptoms, rather than under the "Evaluation of Cognitive Impairment and Other Residuals of [Traumatic Brain Injury] Not Otherwise Classified." 38 C.F.R. § 4.124a, Diagnostic Code 8045. The Board therefore finds that rating the Veteran's cognitive symptoms under Diagnostic Code 8045 and also assigning a separate rating under Diagnostic Code 8100 for headaches is appropriate. The Veteran has not submitted any disagreement with the assigned rating for traumatic brain injury in February 2019 or May 2021, and he has not indicated that he is seeking a higher rating for the headache issue on appeal based on any cognitive impairment symptoms. There is no evidence indicating that any additional, distinct symptomatology exists that is not contemplated by the current evaluation for headaches or the separate diagnosis of traumatic brain injury. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994) (VA may not assign multiple ratings for duplicative or overlapping symptomatology.). Under Diagnostic Code 8100, a 10 percent rating is assigned for characteristic prostrating attacks averaging one in two months over the last several months. The next higher evaluation of 30 percent requires characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent rating is assigned when there are very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The Court addressed the nature of the rating criteria for evaluating headaches in DC 8100 in Johnson v. Wilkie, 30 Vet. App. 245 (2018), finding that 38 C.F.R. §§ 4.7 and 4.21 do not apply in evaluating a Veteran's disability due to his or service-connected headaches. The Johnson Court adopted the Webster's dictionary definitions of the terms characteristic ("a trait, quality, or property or a group of them distinguishing an individual, group, or type") and prostrating ("lacking in vitality or will: powerless to rise: laid low") as those terms are used in DC 8100. Id., at 252. The Johnson Court then found: Because DC 8100 specifically governs migraine headaches, the phrase "characteristic prostrating attacks" plainly describes migraine attacks that typically produce powerlessness or a lack of vitality. The distinction between the 10% and 30% disability levels is the frequency of the headaches. A 10% disability rating is warranted when the prostrating headaches occur once every 2 months and 30% is warranted when the prostrating headaches occur once a month. Therefore, under DC 8100, headaches that are more frequent are associated with the higher rating. Id., at 252-53 (emphasis in original) (citations omitted). In determining whether a 30 percent or 50 percent rating for service-connected headaches is more appropriate under DC 8100, the Court noted: The salient feature of the 50% rating is that the headache attacks must be "completely prostrating." In other words, the headaches must render the Veteran entirely powerless[...] The 50% rating level also includes additional distinct criteria that are not found elsewhere in the Diagnostic Code. To satisfy the 50% rating criteria, the headache attacks must occur "very" frequently. Though the 10% and 30% ratings specify the number of headaches that must occur within a specific period, the 50% rating does not provide this level of detail. Yet, the phrase "very frequent" connotes a frequency greater than once a month, which is enumerated in the 30% rating level, and once every 2 months, which is enumerated for the 10%. Additionally, because the 50% rating requires "very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability," the use of the conjunctive "and" makes clear that the headaches must be long in duration [...] Finally, the 50% rating criteria requires the headaches to produce or be capable of producing "severe economic inadaptability." Id., at 253 (citations omitted). At a May 2008 VA examination, the Veteran reported having headaches that "don't ever stop," and which he described as aching pain from the wound on his head. His associated symptoms included nausea, occasional vomiting, blurry vision, photophobia. He said that over-the-counter pain medication helped to reduce the pain. He was diagnosed with post-concussion headaches. The examiner described this as a constant headache that waxed and waned in intensity. At a June 2015 VA examination, the Veteran reported having sharp pain over his forehead that occurred approximately 3 times a week and lasted for several hours. The pain was noted to be constant and accompanied by sensitivity to light. The Veteran did not have any characteristic prostrating attacks of headache pain. The examiner specifically wrote that these headaches were non-migrainous in nature, were non-prostrating, and did not significantly interfere with personal functioning. In December 2017, the Veteran underwent another VA examination. The Veteran reported feeling dizzy and having constant headaches. The examiner found that the Veteran had constant headache pain, but no other associated symptoms. The examiner wrote that the Veteran had no characteristic prostrating attacks, and no very prostrating and prolonged attacks productive of severe economic inadaptability. The examiner did note that the Veteran's headaches, as well as his major cognitive deficits, would affect his ability to hold a job. In April 2021, the Veteran underwent a VA contract headache examination that was signed in July 2021. The Veteran reported that the Veteran currently had pain and dizziness. The Veteran noted that if he went out in the sun it would never go away and it was mild. The examiner noted the Veteran had constant head pain. The examiner reported the Veteran had non-headache symptoms of nausea, sensitivity to light, and dizziness. The examiner noted that the Veteran's head pain was constant. The examiner found the did not have characteristic prostrating attacks of headache pain. In August 2021, the Veteran underwent another VA contract headache examination. During the examination, the Veteran reported his headache pain was 10 out of 10 in pain scale all the time. The Veteran reported he could never go out into the sun. The Veteran stated he had pain if he picked up his grandson. The Veteran stated he cannot function with his headache. The examiner found the Veteran had constant headache pain. The examiner noted non-headache symptoms of nausea, vomiting, and sensitivity to light. The examiner noted that the duration of the headache pain was constant. The examiner found that once every month the Veteran had characteristic prostrating attacks of headache pain that were very prostrating and prolonged attacks of pain productive of serve economic inadaptability. In September 2021, the August 2021 examiner provided an addendum medical opinion. The examiner reconciled the difference in severity of the two examinations by noting that the examinations were conducted four months apart and that the reported findings in April 2021 were milder than the August 2021. The examiner also noted that the Veteran was a poor historian and somewhat confused making for a difficult examination. Regarding the economic inadaptability caused by the prostrating headaches noted in the August 2021 examination, the examiner found that there was conflicting evidence, as at VA examinations where the Veteran reported constant head pain while VA treatment records repeatedly show the Veteran had denied headaches without constant complaint of headache. The examiner noted that the Veteran repeated that the Veteran could never go in the sun, he had pain if picked up his grandson, and could only walk a little bit then would need to go inside due to pain. The examiner noted that the Veteran could not function with his headache. The Board finds that from September 20, 2007, a 50 percent disability rating is warranted. Such a rating is warranted for migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. To begin, the Board notes that throughout the appellate period the Veteran's headaches have been constant. The Board considered the evidence that the Veteran's VA treatment records have indications that he denied that the headaches were constant; however, providing the Veteran the benefit of the doubt, the Board places greater probative weight on the reports VA examinations reports. Thus, based on the interpretation of Johnson the issue is whether such constant headaches were completely prostrating with prolonged attacks productive of severe economic inadaptability. Throughout the appellate period the Board finds that the evidence is in relative equipoise as to whether the Veteran's headaches were completely prostrating and prolonged, and productive of severe economic inadaptability. The May 2008 examination report documented caused nausea, occasional vomiting, blurry vision, photophobia. The June 2015 VA examination report documents, three times a week, the Veteran's headache caused sharp pain with dizziness. The Veteran's May 2017 testimony indicates that when he had a severe headache, all he was able to do was sit. The Veteran testified he got these headaches daily. Finally, the Veteran's most recent cluster of VA examinations, although a bit contradictory, generally indicate that the Veteran had prostrating headaches that caused severe economic inadaptability. The Board finds that these symptoms of constant pain, dizziness, and periods of nausea, vomiting and inability to do anything but sit cause the severe economic inability contemplated by Diagnostic Code 8100. Therefore, the Board finds from September 20, 2007 a 50 percent disability rating is warranted. An evaluation in excess of 50 percent is not warranted because 50 percent is the maximum schedular evaluation available for migraine headaches. 2. TDIU The Veteran contends his service-connected disabilities cause him to be unemployable. Total disability ratings for compensation may be assigned, in circumstances 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, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more with sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16 (a). It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reasons of service-connected disabilities shall be rated totally disabled. Therefore, in the case of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet these schedular percentage standards set forth in 38 C.F.R. § 4.16 (a), the case should be submitted to the Director of Compensation and Pension Service for extraschedular consideration. The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. See 38 C.F.R. § 4.16 (b). The central inquiry is "whether a Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether a Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. The Court has held that the term "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran's ability to "follow and secure" employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Here, the Veteran has multiple service-connected disabilities which are staged from September 2007. The Veteran is service-connected for diabetes mellitus, rated 20 percent throughout the appellate period; residuals of SFW to the left shoulder, rated 20 percent throughout the appellate period; painful left shoulder rated 10 percent from January 8, 2020; left shoulder gunshot wound scar, rated non-compensable from June 25, 2015; residuals of SFW skull fracture with headaches rated 10 percent prior to September 20, 2007 and herein granted 50 percent thereafter; peripheral neuropathy of the lower right extremity, rated 10 percent from April 15, 2010 to June 2, 2014 and 20 percent thereafter; peripheral neuropathy of the lower left extremity, rated 10 percent from April 15, 2010 to June 2, 2014 and 20 percent thereafter; tinnitus, rated 10 percent from June 3, 2014; traumatic brain injury, rated 40 percent from December 19, 2017 to February 25, 2020 and noncompensable thereafter; cranial neuropathy, rated 10 percent from January 8, 2020 to April 20, 2021 and 30 percent from April 21, 2021; and status post mantle cell lymphoma, rated 100 percent from July 25, 2013 to May 31, 2018 and noncompensable thereafter. The Veteran's combined disability rating from September 20, 2007 to April 15, 2010 was 70 percent; from April 15, 2010 to July 25, 2013, 80 percent; from July 25, 2013 to June 1, 2018 a 100 percent disability rating; and from June 1, 2018 a 90 percent disability rating. The Board finds that throughout appellate period the Veteran meets the schedular requirement for TDIU. As noted above, the Veteran had a 100 percent disability rating from July 25, 2013 to June 1, 2018. Therefore, the issue before the Board is whether the Veteran's service-connected disabilities caused the Veteran to be unemployable from September 20, 2007 to July 25, 2013 and from June 1, 2018. In the Veteran's February 2021 application for TDIU, the Veteran reported that he had not worked since leaving service. The Veteran reported that his highest education was one year of college. The Veteran submitted Social Security records in February 2021, that demonstrated that the Veteran had not worked since 1967. In February 2021, the Veteran stated that he had not worked in any capacity since he left service in May 1975. The Veteran reported since at least 2007, the residuals of his shoulder SFW caused consistent swelling and pain. The Veteran reported he could not lift anything with his left arm. The Veteran reported that his headaches would not allow him to drive for more 3 hours. The Veteran reported that since 2010, his diabetes and peripheral neuropathy caused increased swelling and pain. The Veteran noted he could only drive short distances due to the increased pain in his legs. The Veteran stated that he required a cane and walker to go any distance on foot. The Veteran stated that since his surgery for his mantle cell lymphoma he had difficulty eating. The Veteran reported that his tinnitus caused constant ringing in his ears. The Veteran stated that his TBI caused him to get dizzy. He stated he was constantly fatigued from a lack of sleep. The Veteran noted that his cranial neuropathy caused numbness in his face. The Veteran stated he had to eat slowly. In April 2008, the Veteran underwent a VA examination. The Veteran reported aching, pain and stiffness in the left shoulder in difficulty with pushing, pulling and repetitive use. In June 2010 VA examination the examiner noted pins and needles sensation in the Veteran's lower extremities. In May 2018, the Veteran underwent a cranial nerve examination. The examiner found the Veteran's cranial nerve condition impacted his ability to work. The examiner stated that the Veteran would likely require chronic neuropathic pain medication for treatment of his pain. The examiner stated the Veteran may have had occasional exacerbation of pain at work but with effective treatment, his left facial numbness and pain would be not excepted to significantly impact the Veteran's work activities. In November 2019, the Veteran underwent a shoulders examination. The examiner found the Veteran's shoulder disability impacted his ability to perform occupational tasks. Specifically, the examiner stated that work requiring overhead reaching would not be recommended. In February 2020, the Veteran underwent VA TBI, cranial nerve, and oral conditions examinations. The examiner found the Veteran's residuals of his TBI, or oral conditions (related to his service-connected mantel cell lymphoma) or cranial nerve condition did not impact his ability to work. In April 2021, the Veteran underwent a TDIU examination. The examiner noted the Veteran's TDIU residuals impacted the Veteran's ability to work. Specifically, the Veteran would get dizzy with movements, nauseated, and had frequent swelling on the left side of his face and neck when exposed to heat or the sun. In April 2021, the Veteran underwent a VA audiological examination. The examiner found the Veteran's tinnitus impacted his ordinary conditions of daily life including the ability to work. Specifically, the Veteran stated his tinnitus made him sick and he could not enjoy his grandson. In July 2021, the Veteran underwent a series of VA contract VA examinations. The examiner found that the functional impacts of the Veteran's service-connected disabilities caused functional impairments of difficulty with repeated overhead motions of the left shoulder, fall risk due to some balance impairments at times due to his diabetic peripheral neuropathy. In an August 2021 contract VA examination, the examiner opined that the Veteran's headache condition impacted his ability to work. Specifically, that the Veteran's pain interfered with his daily life, and he could not focus and could not concentrate. The Board finds that TDIU is warranted from September 20, 2007 to July 25, 2013 and from June 1, 2018. The Board notes that this decision granted a 50 percent disability rating for the Veteran's headaches, which requires severe economic inability. Such a finding combined with the functional impairment caused by the Veteran's other service-connected disabilities and which affect the Veteran's ability to effectively conduct physical labor either through limitations in his lower extremities or limitations in the ability to use his left arm in a workplace, indicate that the Veteran's service-connected disabilities combine to cause the Veteran to be unemployable. The Veteran had a 100 percent disability rating from July 25, 2013 to June 1, 2018. A 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). The Veteran's claim of entitlement to TDIU from July 25, 2013 to June 1, 2018 has been rendered moot by the award of a 100 percent combined schedular evaluation from that date. There is no additional benefit to be gained through TDIU as all of the Veteran's service-connected conditions combine to render the Veteran unemployable, and no single condition can be said to result in unemployability. TDIU would be duplicative of the combined schedular rating. Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). There is no suggestion by the Veteran or in the record that a single service-connected disability has prevented the Veteran from working; it is contended and shown by the record that it is the combination of service-connected disabilities that has prevented substantially gainful employment during periods of the appeal. Therefore, consideration of the Veteran's entitlement to a TDIU from July 25, 2013 to June 1, 2018 is moot. If VA has found a Veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding request for TDIU moot where 100 percent schedular rating was awarded for the same period). Therefore, for the appeal period beginning September 20, 2007 to July 25, 2013 and from June 1, 2018, the Veteran's claim for a TDIU is granted. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Robert Batten 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.