Citation Nr: 21005682 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 15-09 746 DATE: February 2, 2021 ORDER Service connection for a headache disorder, to include ocular migraines, is denied. Special monthly compensation (SMC) based on need for aid and attendance is denied. A total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. There is no probative medical evidence that indicates the Veteran’s current headache disorder, to include optical migraines, was incurred in service or is being aggravated by his service-connected fractured sternum residuals. 2. The Veteran’s service-connected disabilities themselves did not cause him to need regular aid and assistance of another person. 3. The Veteran’s physical and mental impairments caused by his service-connected disabilities did not render him unable to obtain or maintain gainful employment. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a headache disorder, to include ocular migraines, have not been satisfied. 38 U.S.C. §§ 1131, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2019). 2. The criteria to establish entitlement to SMC for aid and attendance have not been met. 38 U.S.C. §§ 1114 (l), 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.350, 3.352 (a) (2019). 3. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.10, 4.16, 4.18, 4.19, 4.25 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1981 to April 1987. The case was remanded in May 2019 for evidentiary development and for new medical examinations and opinions. All actions ordered by the remand have been accomplished. In a November 2020 rating decision, the regional office (RO) granted the Veteran’s claims of service connection for bilateral knee disabilities. The issue of service connection for these disabilities is no longer in appeal status. The Veteran had previously appealed the issues of entitlement to service connection for hypertension, obstructive sleep apnea (OSA), pectus excavatum, and an increased rating for residuals of a broken sternum. In May 2020 the Veteran chose to adjudicate these appeals within the new Appeals Modernization Act (AMA) framework. Thus, these issues will not be addressed in this decision. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection may be established on a secondary basis 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). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310 (b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination about the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. It is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for a headache disorder, to include ocular migraines The Veteran contends his headache disorder, to include optical migraines, was either incurred in service or is being aggravated by his service-connected fractured sternum residuals. On the Veteran’s March 1981 report of medical history at enlistment, the Veteran denied frequent or severe headaches. His clinical head and ophthalmoscopic evaluations were normal. In March 1985, the Veteran experienced a motor vehicle accident (MVA) that caused several injuries, including a broken sternum. The sternum injury has been service-connected, to include several residual symptoms such as shortness of breath, dyspnea on exertion, chest pain, reduction of oxygen intake, and wheezing. On a follow-up screening,, a service department physician noted that although the Veteran had “residual bruising,” he reported “no apparent significant problems.” In March 1986 and March 1987 service department reports of dental history, the Veteran denied then having any “other disease, conditions, or problems” other than an enumerated list which included heart symptoms and disorders, chest pain, high blood pressure, and shortness of breath. In August 1986 the Veteran complained of a wheezing cough, headache and dizziness. However, an examiner assessed the Veteran with an upper respiratory infection (URI) and viral infection. The examiner advised the Veteran to continue taking his medication and drinking fluids, and extended his light-duty profile through the remainder of the month. There are no other complaints, diagnoses, or treatments for headaches, to include migraines, during the remainder of his service. The Veteran requested but was not given a separation examination. April 2005 private treatment records indicate the Veteran’s optometrist diagnosed the Veteran with ophthalmic migraines. The date of the examination and diagnosis are not specifically indicated on the treatment record. June 2006 VA treatment records indicate the Veteran complained of optical headaches after beginning heart and blood pressure medication Hctz/Lisinopril. He was advised to inform his physician about his response to the medication; he was not diagnosed with a headache disorder. In a followup examination, the Veteran reported receiving a diagnosis of optical migraines approximately 3 years prior from his optometrist. The Veteran reported he had not been further evaluated by a neurologist and denied taking any medication for the disorder. He also reported ringing in his ears during the episodes. On examination, the examiner noted the Veteran demonstrated a normal head evaluation. The examiner assessed the Veteran with a possible reaction to hypertension medication, and discontinued the Hctz. In a September 2008 VA medical record, the Veteran reported that his 1985 in-service vehicle accident resulted in a sternum fracture and knee lacerations but he did not report any headache symptoms associated with the accident. Subsequent VA treatment records do not indicate any further complaints for headache symptoms. In a May 2010 pulmonary consultation, the Veteran endorsed having migraines. At the February 2013 VA medical examination for mental health disorder, the Veteran reported the onset of headaches after coping with the aftermath of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) raid on the Branch Davidian complex in Waco, Texas, in 1993. However, in a July 2013 statement, the Veteran reported the reduction in his lung capacity from the 1985 MVA incident worsened his migraines and that VA examiners did not note the Veteran’s reported frequency of 3-4 headaches per week. At a November 2019 VA medical examination for migraines, the Veteran described the onset of visual changes for several minutes when working as a gunner at altitude starting in 1984. He denied actual headache pain during the episodes, and confirmed having ophthalmic migraines after reporting seeing bright lights with brief loss of vision or near loss of vision in one or both eyes in 2005. The Veteran stated that the ocular migraines resolved when he started using a CPAP for his obstructive sleep apnea (OSA). The Veteran also reported the onset of a different type of headache pain starting in the back of the neck or base of the head that moved forward to the front of his head in 1984 as well. The Veteran reported that these headaches were not accompanied with any other non-headache symptoms, and were resolved by laying down or putting a heating pad on his neck. The examiner did not diagnose the Veteran with a headache condition at the examination. The examiner opined the Veteran did not have a current migraine condition. The examiner explained that ocular migraines commonly involve visual changes in the absence of headache pain, which is what the Veteran complained of in 2005 when he received his migraine diagnosis, and that the Veteran reported these symptoms had resolved once he began using the CPAP. The examiner further explained that the Veteran’s other headache symptoms indicated tension headaches, and that the Veteran reported he did not have headaches during or since service. The examiner opined the Veteran did not have a current migraine condition and that therefore any currently present migraines were less likely than not incurred in service or caused by the Veteran’s in-service MVA incident. In a separate opinion, the examiner also opined it was less likely than not that any current migraine condition was caused or aggravated by the Veteran’s preexisting non-service-connected congenital pectus excavatum disability. At a September 2020 VA medical examination for headaches, the examiner noted the Veteran’s 2005 migraine diagnosis, his in-service headache complaints, and his responses at the November 2019 VA medical examination. At the current examination, the Veteran reported intermittent bilateral ocular pressure with minimal pain 3-4 times a day lasting 30 minutes that required rest, and also intermittent blurred vision while driving. The Veteran endorsed head pain and nausea, and prostrating attacks of headache pain once a month. The examiner opined the Veteran’s optical migraine condition was less likely than not due to or related to his 1985 MVA because the Veteran’s in-service headache and dizziness complaints were due to his URI and viral illness, and that his medical treatment records since service were silent for any ocular or headache treatment prior to his 2004 or 2005 diagnosis. Furthermore, the examiner noted that the Veteran reported relief with the use of his CPAP and different heart medications, and that medical literature did not indicate a known etiology for ocular migraines. The examiner further explained that a family history of migraines or a change in hormonal levels of estrogen are strong risk factors for the onset of ocular migraines, as are bright lights, loud sounds, strong odors, stress, weather changes, alcoholic beverages, and foods containing nitrates, monosodium and tyramine. In a November 2020 addendum opinion, the same examiner also opined the Veteran’s optical migraine condition was not aggravated beyond its natural progression due to the Veteran’s service-connected fracture sternum residuals, to include shortness of breath, dyspnea on exertion, chest pain, reduction of oxygen intake, and wheezing, because treatment records were silent for any documentation indicating such an aggravating relationship. The preponderance of the evidence is against finding service connection for a headache disorder, to include optical migraines. There is no probative medical evidence that indicates the Veteran’s current headache disorder, to include optical migraines, was incurred in service or is being aggravated by his service-connected fractured sternum residuals. The Veteran has continuously asserted throughout the appeal that his current headache disorder is a result of his service or alternatively that his service-connected fractured sternum residuals aggravate his headache disorder. The Veteran is competent to report observable symptomatology of his condition and to relate a contemporaneous medical diagnosis. See Layno, 6 Vet. App. 465, 469; see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, while the Veteran has attempted to establish a nexus through his own lay assertions, the Veteran is not competent to offer opinions as to the etiology of his current migraine disability. See Jandreau, 492 F.3d 1372, 1377 n.4; Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Headaches require specialized training for determinations as to diagnosis and causation, and are therefore not susceptible to lay opinions on etiology. Thus, the Veteran is not competent to render such a nexus opinion or attempt to present lay assertions to establish a nexus between his current diagnosis and its relationship to his service or his service-connected disabilities. Since the Veteran’s current headache disorder, to include ocular migraines, was not incurred in service nor is being aggravated by his service-connected fractured sternum residuals, the claim for service connection is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). SMC for Aid and Attendance and/or Housebound Status The Veteran asserts that his service-connected disabilities cause him to need the regular aid and attendance of another person, entitling him to SMC under 38 U.S.C. § 1114 (l), which may be established based on the need for aid and attendance. See also 38 C.F.R. §§ 3.350 (b), 3.352 (2). Such a need means that the Veteran was helpless or so nearly helpless, due to service-connected disabilities, as to require the regular aid and attendance of another person. A veteran will be considered to be in need of regular aid and attendance if he or she is blind or is so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; if the veteran is a patient in a nursing home because of mental or physical incapacity; or if the evidence establishes a factual need for aid and attendance or “permanently bedridden” status under the criteria set forth in 38 C.F.R. § 3.352 (a). 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.351 (b). The following factors are considered in determining the need for regular aid and attendance: Inability of a claimant to dress or undress himself, or to keep himself ordinarily clean and presentable; Frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid; Inability of a claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; Inability to attend to the wants of nature; or Incapacity, either physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352 (a). The above are only factors for consideration, and it is left to the Board to determine whether a veteran is factually in need of regular aid and attendance. The particular personal functions that a veteran is unable to perform are also considered in connection with their condition as a whole. It is only necessary that the evidence establish that a veteran is so helpless as to need regular aid and attendance, not that there be a constant need; however, service-connected disabilities must solely cause the need. Id. Further, there is no schedular threshold for the award of SMC when granted on the basis of a need for regular aid and attendance. Entitlement to special monthly compensation (SMC) based on need for aid and attendance The Veteran’s service-connected disabilities consist of residuals of a fractured sternum, to include symptoms of shortness of breath, dyspnea on exertion, chest pain, reduction of oxygen intake, and wheezing; bilateral knee patellofemoral pain syndrome; and bilateral knee scars. At the August 2010 VA medical examination for knee conditions, the Veteran reported difficulty walking up or down stairs due to knee pain. He also reported occasional use of a cane to help ambulate. The examiner noted the Veteran demonstrated mild functional limitation in his bilateral knees. At the May 2013 VA medical examination for the Veteran’s fractured sternum residuals, the examiner noted the Veteran demonstrated reduced lung capacity, shortness of breath, and decreased pulmonary physiology. The Veteran endorsed subjective chest pain, but did not indicate general debilitation, and the Veteran endorsed his residual symptoms resulted in moderate effects on daily activities such as chores, shopping, exercises, sports, recreation, and traveling, and mild effects on feeding, bathing, dressing, toileting, and grooming. The Veteran also reported that all activities were limited by his dyspnea. At the November 2019 VA medical examination for respiratory conditions, the Veteran reported the daily use of Albuterol inhaler, with worsening dyspnea and coughing, and difficulty walking upstairs, with weight-bearing, and completing a sentence without gasping for breath. At the September 2020 VA medical examination for his bilateral knee disability, the Veteran reported bilateral knee pain with prolonged standing, walking and climbing stairs. He denied surgical intervention or the current use of a knee brace, but endorsed the occasional use of a walker to ambulate. The examiner noted the Veteran’s weight fluctuated between 220 and 240 pounds. The criteria for aid and assistance are not met. The medical evidence does not indicate the Veteran’s service-connected disabilities render him helpless in the performance of activities of daily living or in protecting himself from everyday hazards and dangers incident to his environment. For example, there is no probative medical evidence that indicates the Veteran is unable to dress, feed or bathe himself; attend to the wants of nature; or has lost the capacity to use his upper or lower extremities. Medical evidence indicates the Veteran’s non-service-connected psychiatric symptoms contribute to the Veteran’s inability to drive to and from medical appointments, and results in the Veteran’s isolative behavior. The Board notes that the Veteran has repeatedly stated throughout the appeal that K.K. has been a caregiver and companion for both his physical and emotional needs. However, these statements do not indicate how K.K. provides regular aid and assistance nor which activities of daily living require K.K.’s assistance. As the Veteran’s service-connected disabilities have not caused him to need the regular aid and attendance of another person, entitlement to SMC based upon the need for aid and attendance is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Total Disability Rating based on Individual Unemployability (TDIU) A total rating based on unemployability due to service-connected disabilities may be granted if the service-connected disabilities preclude the Veteran from obtaining or maintaining substantially gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16 (a). For those Veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16 (a), total disability ratings for compensation may nevertheless be assigned when it is found that the service-connected disabilities are sufficient to produce unemployability; such cases should be referred to the Director, Compensation Service, for extraschedular consideration. 38 C.F.R. § 4.16 (b). Provision 38 C.F.R. § 4.16 (a) establishes that the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. In reaching a determination of a TDIU, it is necessary that the record reflect some factor which takes the Veteran’s case outside the norm with respect to a similar level of disability under the rating schedule. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); 38 C.F.R. §§ 4.1, 4.15 (2016). The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether or not the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. Marginal employment shall not be considered substantially gainful employment, and generally shall be deemed to exist when a veteran’s earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16 (a). The central inquiry is “whether the veteran’s service connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to a veteran’s level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose, 4 Vet. App. at 363. Service-connected disability compensation is in effect for residuals of a fractured sternum at 30 percent disabling; bilateral knee patellofemoral pain syndrome at 10 percent disabling; and noncompensable bilateral knee scars. The combined rating for these disabilities is 30 percent effective May 25, 2010, and 50 percent effective March 7, 2012 percent. The initial threshold requirements for entitlement to TDIU are thus not met. Because the ratings provided under the Schedule are averages, an assigned rating may be adequate to address the average impairment in earning capacity caused by the disability, but not completely account for the Veteran’s individual circumstances. Thun v. Peake, 22 Vet. App. 111, 114 (2008). The determination of whether a claimant is entitled to an extraschedular rating under 38 C.F.R. § 4.16 (b) is a three-step inquiry. First, as a threshold factor, there must be a finding that the evidence of record presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Id. In this regard, the Board must compare the level of severity and symptomatology of the claimant’s service-connected disability with the established criteria found in the Schedule for that disability. See Id. If the rating criteria reasonably describe the claimant’s disability level and symptomatology, then the claimant’s disability picture is contemplated by the Schedule, in which case the assigned schedular evaluation is adequate and no referral is required. Id. Second, if the schedular criteria are found to be inadequate to evaluate the claimant’s disability, the Board must determine whether the exceptional disability exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Id. If so, then under the third step of the inquiry the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether the claimant’s disability picture requires the assignment of an extraschedular rating. Id. After service, the Veteran worked as a gun salesman. However, the Veteran underwent intense scrutiny and investigation after the February 1993 ATF raid. The Veteran reported that he lost employment after being recognized as a gun supplier to the residents of the Branch Davidian compound. January and October 1996 psychiatric evaluations conducted pursuant to his SSA application for disability benefits indicate the Veteran began demonstrating paranoia and isolative behaviors after the ATF raid. Psychiatric examiners noted the Veteran was capable of performing activities of daily living but demonstrated significant anxiety, and was diagnosed with mild to moderate posttraumatic stress disorder (PTSD). SSA awarded the Veteran’s disability benefits starting in November 1995 due to his overall psychiatric condition. Subsequent examinations indicate the Veteran was able to engage in only limited stressful situations and limited interpersonal relationships. The Veteran’s psychiatric condition is not service-connected. The Veteran has not worked since 1995. The Veteran’s service-connected disabilities were discussed above. At the May 2013 VA medical examination for respiratory conditions, the examiner noted that the Veteran was capable of sedentary to light-duty employment, based on his service-connected condition alone, if he chose to return to employment. During the period on appeal, the Veteran’s service-connected disability picture did not present such an exceptional circumstance to warrant further analysis for a referral. The medical findings of shortness of breath and dyspnea on exertion for the Veteran’s fractured sternum residuals, and objective evidence of bilateral knee pain with prolonged standing, walking and climbing stairs, were “like or similar to” those explicitly listed in the rating criteria, which considers symptoms such as impairment of health, incapacitation episodes, and chronic residuals. Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002). In view of the circumstances, the Board finds that the rating schedule was adequate and further analysis with regards to a referral for extraschedular consideration is not needed under the circumstances of this case. Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). The claim for TDIU is denied. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Anwar, Attorney-Advisor 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.