Citation Nr: 21013484
Decision Date: 03/09/21	Archive Date: 03/09/21

DOCKET NO. 08-32 159
DATE: March 9, 2021

ORDER

Entitlement to a total disability rating for compensation based on individual unemployability due to service-connected disabilities (TDIU rating) is denied.

FINDING OF FACT

The preponderance of the evidence is against a finding that the Veteran is precluded from securing or following a substantially gainful occupation due to his service-connected disabilities.

CONCLUSION OF LAW

The criteria for entitlement to a TDIU rating have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from May 1987 to December 1990. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an October 2009 rating decision where a Department of Veterans Affairs (VA) Regional Office (RO) denied entitlement to a TDIU rating. The Veteran provided sworn testimony before a Decision Review Officer in February 2008 and a Veterans Law Judge (VLJ) at a May 2013 Board hearing. Transcripts of these hearings have been associated with the Veteran’s electronic claims file. 

This claim has a complex procedural history including several previous Board decisions and litigation before the United States Court of Appeals for Veterans Claims (Court). The Board notes that the Veteran’s attorney has raised an issue with the filing date of the Veteran’s TDIU claim and suggested that the relevant appeal period dates back to October 2006. While noting that the Board has considered all evidence from the entire relevant period as described by the Veteran’s attorney, the Board finds it unnecessary to make a determination regarding a hypothetical effective date at this time. 

By way of background, the claim was previously denied by the Board in November 2013, November 2014, and February 2017 decisions, and remanded for additional development in January 2016. As relevant, following the February 2017 Board decision, the Veteran filed a timely appeal to the Court. In February 2018, pursuant to a Joint Motion for Remand (JMR) by the Veteran and the Secretary of VA (the parties), the Court vacated the Board’s February 2017 decision and remanded the matter to the Board for compliance with the instructions within the JMR. In the JMR, the parties agreed that a remand of the claim was appropriate to allow the Board to reassess the probative value of a May 2014 private vocational assessment and February 2009 VA counseling record in considering the Veteran’s entitlement to a TDIU rating. The parties also agreed that the Board should reevaluate whether the Veteran’s service-connected disabilities resulted from a common etiology sufficient to satisfy the criteria for schedular TDIU consideration under 38 C.F.R. § 4.16(a).

In May 2018, the Veteran filed a brief asserting several other perceived deficiencies in the Board’s February 2017 decision, to include the Board’s findings that the Veteran’s earnings from his disc jockey employment were not marginal. These issues were addressed in a subsequent July 2018 Board decision that again denied entitlement to a TDIU rating, as well as entitlement to service connection for hearing loss and tinnitus. The Veteran appealed the July 2018 decision to the Court, which, in a November 2019 Memorandum Decision, vacated and remanded only the TDIU portion of the July 2018 Board decision for readjudication. The Court concluded that the Board erred by failing to define the term “sedentary employment” and by failing to explain how the Veteran is capable of performing the physical and mental acts required by employment with consideration of his educational history and mental and physical abilities, consistent with Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), which will be discussed further herein.

The matter is again before the Board, subject to the de novo review of the undersigned three-VLJ panel, after the prior VLJ, who conducted the Veteran’s May 2013 Board hearing and authored the prior Board decisions, recused herself from further involvement with the adjudication of the Veteran’s claim.  As a result of the recusal, the Vice Chairman of the Board, pursuant to 38 C.F.R. § 20.106(a), assigned the matter to a panel of three VLJs. However, following de novo review, if portions of the July 2018 Board decision remain consistent with the Board’s findings, they may be incorporated herein.

The Veteran’s attorney submitted multiple briefs in May and October of 2019, as well as additional correspondence in May 2020, asserting several additional perceived deficiencies in the Board’s July 2018 decision. The Board shall consider these arguments in the course of its de novo review of the evidence.

The Veteran’s briefs and the Court’s November 2019 Memorandum Decision did not identify any issue regarding VA’s duty to notify or assist. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board need not discuss any potential issues in this regard. Furthermore, as the statutes and regulations governing entitlement to a TDIU rating have been provided to the Veteran on numerous occasions, and the Veteran’s counsel has demonstrated significant familiarity with the laws governing this appeal, they will not be repeated here unless deemed appropriate to do so by the Board. 

 

A.	Legal Analysis

Since September 16, 2009, the Veteran has been in receipt of a total combined disability rating of 70 percent, with at least one service-connected disability rated at more than 40 percent (excluding his period of total temporary disability from January 13, 2015, to March 1, 2015, for his service-connected cervical spine disability). Thus, the Veteran has clearly satisfied the schedular TDIU criteria since September 16, 2009. 38 C.F.R. § 4.16(a).

In the February 2018 JMR, the Board was requested to reconsider whether the Veteran met the schedular criteria for TDIU consideration throughout the entire appellate period. The Veteran filed a claim for TDIU in March 2009, contending that the combined effects of his service-connected disabilities rendered him unemployable, and, as indicated previously, his attorney has argued that he had originally pursued an appeal for increased ratings for his back and neck disabilities stemming from an October 2006 claim. Thus, from October 26, 2006 to September 15, 2009, the Veteran’s atypical migraines were rated as 30 percent disabling; his thoracic spine disability was rated as 20 percent disabling; his cervical spine disability was rated as 20 percent disabling; and his total combined disability was rated as 60 percent. The Veteran’s attorney has argued that the Veteran’s service-connected disabilities arise from a common etiology and should be considered as a single disability for schedular TDIU purposes during this time frame. 

Review of the March 1991 rating decision shows that the Veteran’s cervical and thoracic spine disabilities, as well as his atypical migraines, were originally found to have arisen because of a December 1988 slip-and-fall accident while on active duty. While the Veteran’s cervical and thoracic spine disabilities were originally service-connected as one disability, an April 2006 rating decision found clear and unmistakable error in the March 1991 rating decision and granted separate ratings for the cervical and thoracic spine disabilities. Following reconsideration of the evidence, the Board agrees with the Veteran that these disabilities arise from a single accident, and thus constitute a single disability rated as 60 percent, for schedular TDIU purposes as of October 26, 2006. Thus, the Veteran has satisfied the criteria for schedular TDIU consideration throughout the entire appellate period.  However, based on the analysis set forth below, the most probative evidence of record preponderates against entitlement to a TDIU rating. 

i. Education and Work Experience

The Veteran has his high school equivalency and completed one year of college, including training in computer concepts and applications. He reported that he was enrolled in community college courses off and on from approximately 2004 to 2007.

Prior to service, the Veteran has reported working in a funeral home. During military service, he reported working as an executive officer driver. Since discharge, the Veteran has held a variety of positions, including as a cabinet assembler and a delivery driver. He reports he was last employed on a full-time basis in August 2002. The Veteran has continued to work on a part-time basis through a family business. He reports being employed as a disc jockey for his wife’s DJ and Karaoke business. He reports working 15 hours per week and earning $50 per week, which helps pay for gas when driving to scheduled events.  

ii. Impact of Service-Connected Disabilities on Employment 

The Board recognizes that the Veteran has been found disabled by the Social Security Administration (SSA) as of August 2006. Although the Board has reviewed SSA’s decision, it has no favorable bearing on the claim of entitlement to a TDIU rating. While SSA examined all severe impairments to determine disability, a claim of entitlement to a TDIU rating is limited to unemployability based on service-connected disabilities. The Veteran has three such disabilities: atypical migraines, a cervical spine disability, and a thoracic spine disability. SSA’s decision discusses consultative examination findings for nonservice-connected impairments, including restricted motion of the hips, shoulders, and knees. 

The SSA decision also addressed the Veteran’s complaints of numbness in the hands and feet, and noted that electromyography (EMG) studies in February 2009 showed early peripheral neuropathy in the hands and feet. This is also not a service-connected disability. Service connection was denied for peripheral neuropathy of the bilateral upper and lower extremities in an October 2009 rating decision and not appealed. As for any implication that these neurological issues are a result of his service-connected cervical and thoracic spine disabilities, the medical evidence indicates otherwise. For example, an April 2009 VA neurosurgery note clearly states that the EMG demonstrated no evidence of cervical radiculopathy. The September 2009 VA examiner opined the EMG results were consistent with mild or early peripheral neuropathy but not with radiculopathy that would happen from nerve compression from spinal disc disease.  The August 2012 VA examiner also found no signs or symptoms of radiculopathy.  The Board decision of November 2013 found that there was no neurological impairment due to the service-connected conditions. The Veteran abandoned his appeal of this part of the Board decision; thus, it is final.

Furthermore, SSA discussed visual disturbances “linked to the 2007 assault,” which created problems with hand-eye coordination—all nonservice-connected impairment. Finally, SSA discussed numerous psychiatric and cognitive difficulties, such as impaired memory, a mood disorder with irritability, and uneven attention, concentration, and pace—all nonservice-connected impairments. 

The fact that SSA based its decision to grant disability benefits on all the Veteran’s medical conditions, including nonservice-connected ones, makes its ultimate determination as to the inability to work irrelevant to the question presented here. However, the SSA records do provide probative evidence against the Veteran’s claim of entitlement to a TDIU rating. Specifically, the SSA’s functional capacity assessment expressly found that, but for the August 2006 assault and resulting PTSD with associated cognitive limitations, the Veteran was capable of gainful employment. See April 2007 SSA Functional Capacity Assessment (“Yet the evidence would suggest that he was experiencing no more than moderate limitations and was capable of engaging in routine unskilled competitive employment. The diagnosis of PTSD was first made at the Iowa City VAMC on 1/31/07, but obviously refers to the traumatic experience of 8/01/06. This would have been just prior to the DLI [date last insured]. Prior to the month of August 2006, the case would have been insufficient.”); see also May 2010 SSA Determination and Transmittal (finding disability began in August 2006 and relying on secondary diagnosis of anxiety disorders).

The Board has also discounted the probative weight to be assigned to SSA’s ultimate determination and the May 2014 private vocational consultant’s report because both the SSA and the private vocational consultant accepted much of the Veteran’s self-reported functional limitations. The vocational consultant recounted a conversation with the Veteran where the Veteran reported he could not do any physical activity for more than a few minutes, without then needing to rest, his neck had “very limited” range of motion, and he had migraine headaches seven to nine times per week lasting from 30 minutes to several hours. The consultant’s conclusion that the Veteran could not sustain gainful employment indicates more reliance on the Veteran’s “self-report” than the medical records. See page 4, bottom paragraph. The Board finds that the Veteran’s self-reports conflict with the objective medical evidence and, moreover, there is significant evidence in the record that the Veteran is not a reliable historian and is therefore not entirely credible. 

As for the Veteran’s self-reported limitations of range of spine motion, they are neither competent medical evidence (being given in subjective terms rather than objective measurements and reported by a layman rather than a medical professional) nor credible. A 2007 SSA consultative examiner’s report states that inconsistent statements regarding symptoms in the Veteran’s back were found to “erode” the Veteran’s credibility. During a VA Examination/Compensation & Pension (C&P) examination in May 2008, the examiner noted much voluntary guarding and found that she could not state that the examination represented the Veteran’s full functional capabilities. On VA examination in September 2009, the Veteran complained of pain on all ranges and all movements and made jerky movements. The examiner commented on specific inconsistencies in the Veteran’s presentation, such as his ability to turn his head to look at the examiner during the interview and crouch down to get his shoes, but then demonstrating more limited range of motion on testing. The examiner concluded the Veteran’s demonstrated range of motion on testing was not indicative of his true functional range of motion. The examiner also noted the Veteran’s gait was inconsistent, alternating between limping and walking normally.  See also February 2009 VA Neuropsychology Consult (noting discontinuance of testing “due to validity concerns” and stating: “The possibility of secondary gain may be entertained.”); September 2008 Private Physical Work Performance Evaluation (“The client self-limited on 65% of the 17 tasks.... If the self-limiting exceeds 20%, then psychosocial and/or motivational factors [e.g. attempts to manipulate test results] are affecting test results.” The examiner also noted a number of observed clinical inconsistences, including inconsistent pain or pain behaviors).

On another VA examination in August 2012, the Veteran stated that he regularly used a cane for stability and occasionally used a wheelchair for fatigue. However, the examiner stated: “The Veteran exhibits hyperventilatory behavior and winces with any effort beyond the stationary seated or supine position.” The examiner concluded that the limited range of motion findings were “not accurate based on his ambulation to and from the exam room as well as going from standing to the seated position.” The examiner concluded the Veteran gave “suboptimal effort” based on specific incongruous actions by the Veteran involving his back movements, including ambulation to and from the room, his ability to sit with his lumbar spine flexed at 90 degrees, and his failure to exhibit any pain when going directly to a sitting position. The examiner also stated that the functional loss shown of less movement than normal, weakened movement, excess fatigability, and pain on movement after repetitive use, were out of proportion to the Veteran’s disease process.

While the SSA and the private vocational consultant chose to accept the Veteran’s self-reported physical limitations, the Board, on a de novo review of the record, finds his self-reports not reliable, based on the repeated inconsistencies on medical examinations between 2007 and 2012. The examiners’ conclusions that the findings shown on those examinations were not indicative of the Veteran’s true functioning were not unsupported opinions, but, rather, the examiners cited to specific, observable instances during the examinations to support their conclusions. The fact that multiple examiners observed and reached similar conclusions bolsters the finding that the Veteran’s reports lack credibility. As will be discussed below, the Board finds the Veteran’s service-connected disabilities alone, either singly or in combination, have not resulted in the preclusion of securing or following substantially gainful employment throughout the entire appellate period. 

a. Service-Connected Atypical Migraine Disability

The Veteran was initially service connected for atypical migraine headaches in a March 1991 rating decision. Since his initial 10 percent rating, the Veteran has received an increase to 30 percent in August 2002, which was increased to 50 percent as of September 16, 2009. 

In a May 2008 C&P examination, the Veteran reported having seven to eight prostrating headaches a week lasting between 30 minutes to up to four hours on a given day. These headaches were often triggered by light and/or smells. He also reported a “prodrome of lightheadedness, nausea, blurry vision, and irritability immediately to 30 minutes before headache onset” lasting between 30 minutes to two days. During his February 2008 Decision Review Officer hearing, the Veteran testified that his headaches were frequently triggered while working as a disc jockey. During such occasions, his migraines would become so severe, that he could no longer see the screen. Nevertheless, he testified he would stay to help his wife.

The Veteran’s migraines were not so severe that they warranted hospitalization. At most, he reported going to the emergency room for treatment. His symptoms were reduced by lying down in a quiet room. The May 2008 C&P examiner reported that the Veteran had increased absenteeism as a result of his migraines due to pain. 

However, the Veteran received an increased rating for his atypical migraines to 50 percent based on a September 2009 VA examination. The evaluator discussed symptoms that have been attributed by medical professionals as unrelated to the migraine condition itself, but rather post-service head trauma. These distinctions were noted in the September 2009 VA examination report. 

In September 2009, a VA examiner evaluated the Veteran’s migraines on employability. The examiner opined that the post-traumatic worsening of the Veteran’s migraines was not service-connected, but, instead, were due to post-service traumatic head injuries, as well as additional refractory headaches because of trying different medications. Specifically, the examiner described “chronic daily headaches” of which roughly half were prostrating. The examiner noted that the Veteran reported that the headaches worsened “after 2006-2007 head injuries.” The examiner also noted the Veteran’s report of memory problems that began after the post-service physical assaults. Examination reports must be read as a whole and, here, the examiner concluded that there was an increase in frequency and severity of the Veteran’s headaches that was not service-connected, and it was this nonservice-connected increase which rendered the Veteran unemployable. As the Board reads the report, part of the basis for this opinion was the increased difficulties with memory, which were explicitly linked to the post-service physical assaults. The Board notes that the analysis required for an increased rating for migraines is distinct from that required for a TDIU rating. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (holding that, unlike the percentage ratings in part 4 of title 38 of the Code of Federal Regulations, which are based on the average impairment in earning capacity caused by the service-connected disability, “entitlement to TDIU is based on an individual’s particular circumstances”). Thus, the Board was obligated to consider evidence in a new light, regardless of the Veteran’s 2009 increased disability rating for his atypical migraines.

This September 2009 opinion and the Board’s interpretation of it is consistent with the findings of the SSA examiner who, likewise, concluded that the Veteran was only unemployable if the nonservice-connected effects of the August 2006 assault were taken into consideration. See April 2007 SSA Functional Capacity Assessment. In February 2011, a VA examiner diagnosed tension headaches with migrainous features. She noted the Veteran’s report that his headaches lasted from 30 minutes to several hours, but typically lasted two hours. Over the prior 12 months, he missed two weeks of work due to migraines, neck pain, and/or back pain. The examiner opined that the headaches resulted in increased absenteeism and caused decreased concentration, difficulty following instructions, and pain. The Veteran explained to the examiner his belief that the condition made him forgetful and impacted his concentration. The examiner opined that the Veteran’s service-connected disabilities, including his headaches, did not prevent him from finding and maintaining gainful employment. 

In contrast to the unfavorable opinions of the September 2009 VA examiner, the February 2011 VA examiner, and the April 2007 SSA examiner, the May 2014 vocational expert opinion submitted by the Veteran found the Veteran unemployable since 2002 due, in part, to migraines. 

The vocational expert stated that having migraines of such a severity would significantly impair one’s ability to sustain full-time employment. The Board recognizes that the Veteran is significantly impaired in his occupational functioning as a result of his service-connected headaches. In fact, a 50 percent rating for headaches recognizes that frequent and prolonged headaches produce or are capable of producing severe economic inadaptability. There is a difference, however, between “severe economic inadaptability” and unemployability for purposes of entitlement to TDIU. If there were no difference, a finding of unemployability would be required where a Veteran met the 50 percent criteria for headaches. This is not the law. See Pierce v. Principi, 18 Vet. App. 440, 446 (2004), as amended (Feb. 8, 2005) (rejecting the contention that “economic inadaptability” equates to unemployability: “nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50% rating [under DC 8100]”).

The Board finds that the increase of the Veteran’s symptoms that rendered him unemployable was related to two post-service events rather than his service-connected atypical migraines. As the Veteran reported in a March 2008 VA Medical Center neurological examination report, he was involved in two separate post-service altercations resulting in a traumatic brain injury. In 2007, the Veteran was assaulted and had his head slammed into the side of a truck. In 2008, the Veteran was hit multiple times in the head and knocked out. The 2008 attack was so severe that the Veteran required reconstructive surgery. The worsening of his symptoms began immediately following each attack, as reported by the Veteran and VA medical personnel.  

The Veteran’s attorney has cited Mittleider v. West, 11 Vet. App. 181, 182 (1998), to argue that the Veteran’s post-service intervening physical assaults, which resulted in exacerbated headaches, cannot be considered as nonservice-connected because the symptoms cannot be separated. See May 2018 Appellate Brief. The Board is not persuaded. Here, the Board finds that this case is distinguishable from Mittleider, as multiple medical professionals have noted a specific increase in headache severity attributed directly to the post-service, nonservice-related physical assaults. This is not a case where the medical evidence indicates the symptoms due to nonservice-connected causes cannot be separated from the service-connected condition, but, in fact, directly the opposite.

Also, in November 2010, the Veteran saw a speech pathologist at the Iowa City VA Medical Center (VAMC) to work on cognitive functioning. In his discussions with the speech pathologist, the Veteran noted that his memory issues worsened after a 2007 bar assault, and not as a result of his previously service-connected migraines.  See also September 2009 VA Examination (documenting the same reports by the Veteran). Statements made while seeking treatment tend to be highly reliable, which makes the Veteran’s report of worsening symptoms after the bar assault highly probative. Cucuras v. Sec’y of Health and Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993); Williams v. Gov. of Virgin Islands, 271 F.Supp.2d 696, 702 (V.I. 2003). The Veteran’s report to the speech pathologist further supports the conclusions of the September 2009 VA examiner and April 2007 SSA examiner and, in turn, the Board’s factual finding in resolving the conflicting expert opinions.

The Veteran’s attorney has argued that the findings of the April 2007 SSA examiner should not be considered because the examination was restricted to assessment of the Veteran’s psychological functioning. However, this argument is without merit as the Board has considered only the assessment within that scope and context, in that it also distinguishes between service-connected and nonservice-connected disabilities. The assessment is probative only as it relates to the Veteran’s mental functioning and is not discredited because it did not include a physical evaluation. 

The Veteran’s attorney further sought to discredit the findings of the February 2011 VA examiner based on her statement that the Veteran’s “current state of health appears to be similar to his past health when he has sustained gainful employment and notes that he continues to work part-time as a DJ with his wife at this time.” The attorney stated that the examiner’s conclusion was based on an inaccurate factual premise because the Veteran was last gainfully employed in 2002 and VA has acknowledged that his condition has worsened since that time. Again, the attorney’s contention mischaracterizes the examination report and is without merit. First, noting a similarity does not preclude the fact that the Veteran’s condition has worsened since 2002. It is implied that the examiner ascribed similarity to illustrate that the Veteran’s current condition was not so severe as to make him unemployable. Second, there is no indication that the examiner relied on that statement as the basis for a conclusion. Rather, the examiner provided an extensive physical examination of the Veteran and separately concluded that “neither his cervical spine condition, thoracic spine condition, or headaches would prevent him from finding and maintaining gainful employment.”

Apart from the above assessments, routine treatment records throughout the relevant period do not indicate significant psychological or cognitive deficits resulting from the Veteran’s migraines so as to render him unable to secure or follow substantially gainful employment. Even in the relatively immediate aftermath of the Veteran’s nonservice-connected assaults, multiple mental status examinations in 2007 show that the Veteran was found to be fully alert and oriented, in no acute distress, with normal mood and affect, a logical and goal-oriented thought process, normal memory, intact concentration and attention, and intact judgment and insight. Similar findings are made throughout the relevant period with examination findings reflecting the Veteran to be fully alert and oriented, attentive, and cooperative, with a normal mood and affect, normal comprehension, a logical, goal-oriented thought process, unremarkable thought content, intact insight and judgment, and intact attention and concentration. Such findings were evident on examinations in February 2009, March 2009, December 2009, January 2010, May 2010, July 2012, February 2013, April 2014, and January 2015.

The 2014 and 2015 JMRs requested that the Board provide additional reasons and bases explaining why the Board finds the Veteran is not unemployable due to his service-connected disabilities despite the RO’s decision to assign a 50 percent rating for the Veteran’s headaches. The RO’s decision to assign a 50 percent rating for increased headache symptoms even though the evidence suggested that increase was not due to the service-connected condition was beneficial to the Veteran. The fact that the RO did so, however, does not necessarily lead to a conclusion that the increased symptoms warrant a TDIU rating. See Pierce, 18 Vet. App. at 446. The RO gave the Veteran the benefit of the doubt, particularly where it could be construed that the September 2009 VA examiner did not quantify the frequency or describe the symptomatology due to nonservice-connected causes, in finding that the Veteran’s symptomatology met the 50 percent criteria. However, a finding of unemployability would typically require more severe symptoms than those warranting a 50 percent schedular rating. See id.; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (“it is necessary that the record reflect circumstances which place that veteran’s case in a different category than other veterans with an equal rating of disability.”).

Here, the Veteran’s headache symptoms and functional limitations are typical of those of veterans who meet the criteria for a 50 percent rating: “very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.” 38 C.F.R. § 4.124a, DC 8100. The phrase “characteristic prostrating attacks” is used in the criteria corresponding to 10 percent and 30 percent ratings under DC 8100 to describe the nature and severity of migraines, but it is not defined in the regulation. Pursuant to DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1531 (32d ed. 2012), prostration is defined as “extreme exhaustion or powerlessness.” Thus, the phrase “characteristic prostrating attacks” is understood to describe migraine attacks that typically produce extreme exhaustion or powerlessness. The rating criteria for a 50 percent rating contain several undefined phrases. However, the descriptive phrase “very frequent” connotes a frequency at least greater than once a month, as is required by the rating criteria corresponding to a lesser 30 percent rating.  Johnson v. Wilkie, 30 Vet. App. 242, 253 (2018). The phrase “completely prostrating” generally means that the migraines attack must render the veteran entirely powerless. Id. The completely prostrating attacks must also be “prolonged,” which is defined as “to lengthen in time: extend duration: draw out: continue, protract.” Id. (Internal citation omitted.) 

The Veteran’s headaches typically induce him to seek a quiet, dark place, rather than, for example, lying down and/or sleeping. Based on the terminology described above, the Board finds the evidence equivocal, at best, regarding whether the Veteran fully meets the 50 percent criteria (rather than more closely approximating it). The preponderance of the evidence is against a finding that the Veteran’s symptoms and functional limitations associated with his atypical migraines are more severe than other veterans with an equal rating of disability. Instead, the symptoms and functional limitations are of the type and severity that, ordinarily, warrant a 50 percent schedular rating. The circumstances of this case do not place the Veteran’s case in a different category from other veterans with similar schedular ratings.

The Veteran’s attorney has continued to assert that the September 2009 VA examiner’s indication that the Veteran was “unable to be gainfully employed from these non-service connected headaches but not from the headache condition he had that was service-connected” was inadequately supported because it did not quantify the frequency or describe the symptomology of the Veteran’s nonservice-connected headaches, and, therefore, should be invalidated. This, as noted above, contributed to a favorable rating of 50 percent when doubt was resolved most favorably to the Veteran. However, on de novo review, the Board finds that the attorney mischaracterizes the examination report, which makes clear that the examiner based the findings on an extensive review of the record, and the Veteran described a general worsening of headache symptoms following the 2006 and 2007 injuries. Furthermore, the examination report documents that the Veteran experienced more than eight headaches per week, he was incapacitated by at least 50 percent of them, and specifically qualified the Veteran’s nonservice-connected headaches as causing him to be “fairly incapacitated.” This language, while perhaps more closely approximating a 50 percent rating than a 30 percent rating, describes the Veteran’s symptomology, which appears to fall short of the “completely prostrating” language as defined in Johnson. However, the definitions as cited in Johnson were not in place at the time of the 2009 examination. Although portions of the examination report appear largely dependent on the Veteran’s reporting, the Board finds that the examination report is not to be disqualified for lack of quantifying frequency or describing symptomology and that, when viewed most favorably to the Veteran, the report does not support a finding that him service-connected migraines render him unable to secure or follow substantially gainful employment.

The Veteran’s attorney has argued that the Board erred in determining that the Veteran’s service-connected migraine symptoms did not include the worsening of his symptoms after his post-service head traumas in 2006 and 2007. The Board finds no merit to this argument. The Board is required to distinguish between symptoms attributable to his service-connected disabilities and nonservice-connected impairments and such distinguishing features are made apparent throughout the evidence, as discussed above. See 38 C.F.R. § 4.19 (unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating). Additionally, while the September 2009 VA examination supports finding that there are aspects of the Veteran’s migraine symptoms and functional impairments that are due to nonservice-connected causes, the end result is no different if the Board considers the full effect of the headaches. There are various other opinions, including that of the February 2011 VA examiner and the April 2007 SSA examiner, that weigh heavily against finding that the Veteran’s cervical spine, thoracic spine, and migraine disabilities combine to preclude him from securing or following substantially gainful employment. The February 2011 VA examiner opined that, even considering all disabilities, the Veteran was employable. The April 2007 SSA examiner opined that only the psychological and cognitive effects of the August 2006 physical assault (e.g. memory problems, PTSD / anxiety) rendered the Veteran unemployable for SSA purposes.

Even granting the Veteran the benefit of the doubt, the greater weight of the evidence is against finding that the Veteran’s migraines render him unable to secure or follow substantially gainful employment.

b. Service-Connected Cervical Spine Disability

The Veteran has recurrent neck/cervical spine pain rated at 20 percent for the entire period. Early diagnostic testing revealed cervical spondylosis and multilevel degenerative joint disease with C6/7 bilateral foraminal stenosis. The Veteran has reported incapacitating episodes due to cervical spine lasting two to three days a week, five to six hours at a time. However, such limitations have yet to be seen on any examination. 

March 2008 physical therapy notes indicated decreased range of motion in the Veteran’s neck by 50 percent in all directions. Limited range of motion in his neck has reduced the Veteran’s ability to turn his head while driving. In addition to limited range of motion, the Veteran has reported increased additional limitations stemming from this disability.

In a March 2008 Iowa City VAMC report, the Veteran complained of occasional numbness in his hands and fingers when lifting heavier objects or when driving.  However, when he was evaluated at a May 2008 C&P examination, the examiner documented there were no neurological deficits, and the Veteran had full muscular strength in all extremities, which decreased the likelihood that the Veteran’s reported symptoms were a result of his cervical strain disability. Although the cervical paraspinal muscles could not be assessed due to the Veteran’s incomplete relaxation, no evidence of compressive neuropathy or cervical radiculopathy was shown. Later examinations conducted in January 2009, May 2009 and June 2009 at the Iowa City VAMC determined that the Veteran demonstrated early evidence of mild peripheral neuropathy, a nonservice-connected disability unrelated to the Veteran’s cervical spine disability. See discussion above.

At the September 2009 VA examination, the examiner opined that the Veteran’s neck disability did not affect his employability because he was previously able to work in laborious jobs such as a cabinet assembler since being service-connected for his static cervical spine disability. The examiner could not see how the neck disability had any effect on the Veteran’s employability. The examiner also relied on objective tests of the cervical spine, which revealed no signs of pain, spasm, guarding, atrophy, tenderness or weakness in the cervical spine, which are similar to results seen in previous examinations.

The February 2011 VA examiner reached a similar conclusion regarding employability, though without opining on each service-connected disability. She did identify pain as the primary effect on occupational activities with resulting increased absenteeism.

Aside from conservative treatment, such as taking prescribed medications and the occasional epidural injection such as is seen in June 2010, the medical record, although voluminous, was scant on the issue of how the Veteran’s cervical spine disability resulted in alleged unemployability. Accordingly, VA scheduled the Veteran for another VA examination in August 2012. The August 2012 examiner noted significant discrepancies between the Veteran’s presentation of symptoms and his objective examination, as seen in several examinations conducted prior to September 16, 2009. For example, when the Veteran was performing range of motion tests in the upper extremities (abduction and extension), the Veteran reported pain in his neck. However, the examiner documented that this test was performed as a distraction test (clearly because the examiner was questioning the accuracy of the Veteran’s report of symptoms), and the motions themselves would not have caused neck pain. This exaggeration indicated that the Veteran was capable of more movement than shown. His abilities were captured within activities of daily living.  For example, the Veteran continued to drive, an activity which required him to turn his neck. The record supports the fact that the Veteran is not unemployable due to his service-connected neck disability. 

Aside from these examinations, the Veteran attended follow-up appointments for treatment including physical therapy, and the use of several at-home conservative measures, including taking prescription pain medications such as Vicodin, using a TENS unit, and a Miami J collar with padding to manage his symptoms. Despite the Veteran’s pain symptoms and reduced range of motion, several physical examinations indicate that the Veteran maintained full strength, intact coordination and fine motor function with continued independence in activities of daily living, including in December 2007, March 2009, September 2009, May 2010, and April 2014. Counseling records from April to June of 2010 also show that the Veteran reported taking recreational weekend trips with his wife and reported that they went swimming at an indoor pool without noted difficulty. Such findings demonstrate a relatively high level of physical functioning that does not support that the Veteran is unemployable.  

Despite the reduced range of motion in his neck and residual pain, these symptoms are largely managed with conservative treatment and have not significantly impaired the Veteran’s ability to engage in a wide range of activities, including general self-care and driving. 

c. Service-Connected Thoracic Spine Disability

The Veteran has been rated at 20 percent for this disability for the entire appellate period. The Veteran has contended that he has incapacitating episodes due to the thoracolumbar spine lasting two to three days a week, for five to six hours at a time, and he is unable to walk more than a few yards. However, such limitations have yet to been seen or substantiated on any examination.

Throughout the Veteran’s treatment record, issues are seen regarding his back. In May 2008, the Veteran reported increased back pain after bending over to tie his shoelaces and appeared stiff. He reported pain for nearly a week before it was under control.  However, the root of this pain did not appear to be a result of thoracic spine degeneration. In fact, March 2008 VA treatment records revealed normal alignment of the thoracic spine without significant disc disease. Despite the Veteran reports of difficulty lifting heavier objects and driving for prolonged periods related to this disability, there is no active disability shown. 

Exaggerations of the Veteran’s physical limitations were pronounced at the May 2008 C&P examination, as documented by the examiner. The Veteran presented with slow, stiff movements and increased stiffness when initiating movements. Although limitations in range of motion were observed by the examiner, the examiner could not say with certainty whether the examination represented the Veteran’s full functional capabilities. The examiner noted the Veteran engaging in voluntary guarding, which may have been caused out of fear. The examiner noted that range of motion improved with repeated repetitions.  For example, on the first test, the Veteran had forward flexion at 30 degrees, but had full range of motion shown on subsequent repetitions with 40 and 45 degrees shown on subsequent tests. The examiner also documented the Veteran walked with a normal gait. 

Exaggerations of the Veteran’s physical limitations were again observed on a January 2009 psychological examination upon request by the Disability Determination Services in connection with the SSA claim. The examiner also noted exaggerations in the Veteran’s appearance and gait in relation to his reports of pain. The examiner also documented that the Veteran could walk unaided. 

The Veteran has reported the need to take pain medication for his back disability.  He was prescribed many narcotic pain medications. He reported nausea when taking Vicodin, but used Oxycodone without major side effects. 

The September 2009 VA examiner who provided an opinion on unemployability with respect to the Veteran’s other service-connected disabilities, also provided an assessment of employability due to the thoracic spine disability. The examiner found no unemployability caused by the thoracic spine disability because no changes were seen in the spine on diagnostic tests. The examiner documented that objective tests revealed no signs of pain, spasm, guarding, atrophy, tenderness or weakness in the thoracic spine. 

The February 2011 examiner noted that the back disability resulted in increased absenteeism as well as decreased mobility and pain. Again, the examiner’s employability opinion addressed all of the Veteran’s service-connected disabilities rather than each separately. 

Another examination conducted in August 2012 delved further into the Veteran’s asserted limitations. However, the examination results were inconsistent with the Veteran’s complaints, as seen during his examination of the cervical spine. The Veteran presented with flexion of 20 degrees, extension at 10 degrees, right lateral flexion at 22 degrees, left lateral flexion at 24 degrees, right lateral rotation at 28 degrees, and left lateral rotation at 35 degrees, all below full range of motion. However, the examiner reported the Veteran performed at suboptimal effort on the initial examination, as well as in repeated tests, which would align with limitations such as less movement than normal, weakened movement, excess fatigability, pain or movement. The examiner documented the abnormalities seen on the examination were out of proportion to the limitations that would be exhibited with an individual with a mild form of the disease. 

The Board has considered these examinations in light of the Veteran’s part-time work as a disc jockey, which he continued to do in spite of any reported limitation, and no loss of physical strength, which allows him to lift objects up to 40 pounds, which is the approximate weight of speakers. Despite the Veteran’s pain symptoms and interval demonstrations of a limp, routine treatment records generally reflected relatively normal findings on physical examination which include assessments of a normal gait, full strength, and intact coordination and reflexes, as discussed above. Examples of such findings are shown in treatment records from December 2007 to April 2014, and include reports of the Veteran’s independence in activities of daily living and ability to participate in recreational weekend travel and activities such as swimming.

Ultimately, the Board does not find the Veteran is precluded from securing or following substantially gainful employment due to his thoracic spine. Based on the evidence of record, the Board finds the Veteran has greater physical ability than shown on examinations and as documented by multiple examiners. Even considering the Veteran’s reported symptoms and comparing those symptoms to his activities of daily living, including his part-time work as a disc jockey, the Veteran would be able to engage in at least sedentary work with a sit/stand option.  This would allow the Veteran to reduce any pain caused with prolonged standing, but also allow the Veteran to move around to minimize reported and observed stiffness.

d. Combined Effect of Service-Connected Disabilities

Even considering the combined effects of the Veteran’s service-connected disabilities, the preponderance of the evidence is against a finding that the Veteran would not still be capable of substantial gainful employment. Although he exhibits significantly limited range of motion in cervical and thoracic spines, such limitations have been noted to be exaggerated on examinations and are not serious impediments to the Veteran’s employment as a disc jockey. Additionally, the Veteran’s atypical migraines have not rendered him unemployable, as discussed above, though his current nonservice-connected head trauma that caused anxiety and/or PTSD as well as cognitive problems (e.g. attention and memory) likely does result in minimized employability. 

The Veteran has undergone a number of evaluations of his total physical ability based upon his physical impairments. The first examination took place in May 2008. The examiner considered the combined effects of the Veteran’s cervical and thoracic spine disabilities and opined that the Veteran would have increased absenteeism, decreased mobility, problems with lifting and carrying, and chronic pain. The Board finds this assessment is not entirely accurate in light of the examiner’s other statements within his examination report of the Veteran’s exaggerations during the exam. The Veteran likely had a higher physical ability than observed. The examiner did not consider the impact of the Veteran’s migraines on employability, but rather considered just the spine disabilities. Accordingly, this examination is of limited probative value, particularly with respect to the combined effects of all three of the Veteran’s disabilities. The Board has also considered a physical work performance evaluation conducted at the Allen Hospital Iowa Health System in September 2008.

The September 2008 examiner evaluated the Veteran’s employability based on service-connected and nonservice-connected disabilities affecting the Veteran’s neck, back, and head. As seen in the May 2008 C&P examination, the September 2008 physical work performance evaluator also found that the Veteran engaged in significant self-limiting and inconsistent behavior, including assertions of pain, throughout the examination. The examiner documented the Veteran self-limited on 65 percent of the 17 tasks of the test, meaning he stopped the task before a maximum amount of effort was reached. The examiner noted possible causes for such behavior could be pain, psychosocial issues such as fear of reinjury, anxiety or depression, and /or attempts to manipulate the test. However, it was the examiner’s experience that motivated clients self-limited no more than 20 percent. The examiner wrote that if self-limiting exceeds 20 percent, as is seen in this instant case, then psychosocial and motivational factors are affecting the test results. The Veteran also appeared unwilling to continue with testing to completion.  As a result, the examiner could derive the Veteran’s minimum exertional ability only, which he determined was at the sedentary range. The examiner wrote an individual is able to engage in sedentary work if he is “capable of exerting up to 10 pounds of force occasionally (one third of the time) and negligibly lift, carry, push, and pull or otherwise move objects, including the human body.” The Veteran would be able to complete an eight-hour day with the option to alternate between siting and standing.  Even with the Veteran’s self-limiting behavior, the examiner found the Veteran capable of sedentary work with a sit/stand option. Similar results were seen on evaluations performed by the Disability Determination Services in January 2009 and March 2009 who opined that the Veteran could perform a full range of light jobs that resemble his past work, and simple and unskilled tasks. 

Another examination conducted by an SSA consultative examiner in January 2009 also noted the Veteran’s exaggerations on his examination.  The Veteran walked unaided but with a slow gait, and had an exaggerated pain response. Even though the Veteran reported being unable to walk more than 200 feet due to pain and shortness of breath, the examiner indicated that the Veteran had a higher exertional ability. The examiner opined that the Veteran could sit for two hours before needing to change positions to either stand or otherwise move and could lift 40 pounds which was the weight of the speakers he had to move. The Veteran reported dropping them more frequently than usual, but there was no objective limitation seen related to reduced strength or increased severity of the Veteran’s back disability consistent with such reported limitations.

The Veteran’s attorney has argued against relying on the September 2008 Allen Hospital assessment indicating that the Veteran is capable of sedentary work with a sit/stand option. The attorney stated that the evaluator is not competent to opine on vocational matters, that a claimant cannot perform sedentary work if the claimant must alternate between sitting and standing, and that the evaluator did not assess occupational functioning beyond the Veteran’s physical disabilities. These arguments are without merit. The medical evaluator was opining as to the Veteran’s ability to perform the physical requirements defined by sedentary work with a sit-stand option, a subject matter of which the evaluator is qualified, and the Court has found that the Board can be informed by a medical examiner’s opinion on employability. Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (“The medical examiner provides a disability evaluation and the rating specialist interprets medical reports in order to match the rating with the disability.”), rev’d on other grounds sub nom. Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). This issue is discussed in further detail below. Additionally, while a sit-stand option precludes the ability to perform a full range of sedentary work, it does not render a veteran unemployable; rather, it simply limits the Veteran to sedentary occupations that also allow for a sit-stand option, as discussed further below. Finally, the Board has considered only the assessment within its defined scope and the evaluation being limited to the Veteran’s physical abilities, which does not discredit its findings. 

Within the 2014 JMR, the parties stated that the Board must discuss the type of gainful employment the Veteran could obtain considering his work history, limited education, and physical limitations. The Board does not interpret the 2014 JMR as suggesting that the Board must list specific jobs that the Veteran could obtain as that is not generally required (and the 2015 JMR makes no reference to the adequacy of the Board’s discussion in its November 2014 decision); however, the Board will provide some examples that are not meant to be considered exhaustive. As noted, the evidence of record supports a finding that, with the Veteran’s education, work history, and functional limitations, he could perform a full range of sedentary work with the option to alternate between sitting and standing. 

Although the 2007 SSA examiner indicated that the Veteran was capable of simple and unskilled work, with consideration of his nonservice-connected disabilities, a restriction that was included in the prior July 2018 Board denial, in evaluating the evidence de novo, the Board finds that no such limitation is necessary for the Veteran to sustain employment based on his service-connected disabilities alone. This is supported by the fact that the Veteran was successfully able to complete college coursework in 2005 with his underlying migraine condition prior to the exacerbating and nonservice-connected assaults of 2006 and 2007. However, even thereafter, the Veteran has demonstrated a full range of cognitive abilities on mental status examinations, as noted above, including findings of being fully alert and oriented with normal mood and affect, a logical and goal-oriented thought process, unremarkable thought content, normal memory, intact concentration and attention, and intact judgment and insight. Additionally, treatment notes in 2009 document that the Veteran reported spending almost all day on his computer. Such findings suggest that the Veteran’s service-connected migraine symptoms could be accommodated by the aforementioned restriction to sedentary work with routine breaks. The 2007 SSA assessment strongly implicated the Veteran’s nonservice-connected assaults as the source of their ascribed limitations. As stated, SSA findings that consider the Veteran’s nonservice-connected disabilities do not weigh upon this decision.

As to the deficiencies identified in the Court’s November 2019 Memorandum Decision, the Board seeks to define “sedentary work” in the manner most consistent to its references and framing throughout the longitudinal record. The Department of Labor’s Dictionary of Occupational Titles (DOT) defines sedentary work as exerting up to 10 pounds of force occasionally (i.e. up to one third of the time), and/or a negligible amount of force frequently (i.e. from 1/3 to 2/3 of the time) to lift, carry, push, pull, or otherwise move objects, including the human body. According to DOT’s definition, sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met. This definition appears to fit the standards used by multiple examiners in this matter and the Board finds no prejudice to the Veteran in considering the definition for purposes of deciding this claim.

SSA’s definition of sedentary employment is very similar and, according to SSA, has the same meaning as used in the DOT. 20 C.F.R. § 404.1567. SSA defines sedentary work as work that involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Id. Although a sedentary job is defined as one that involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Id. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met. Id.

In determining whether a veteran can secure and follow a substantially gainful occupation for purposes of TDIU, the Court in Ray v. Wilkie directed the Board to consider the following factors: (1) the veteran’s history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. 31 Vet. App. at 73.

Regarding the Veteran’s education, training, skills, and work history, the VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, submitted by the Veteran in June 2009, indicates that he had one year of a college education and has worked as a disc jockey since 1994. However, separate records further indicate that, since service, the Veteran worked as a delivery driver and cabinet assembler. He reported that during service he worked as an executive officer driver and that he worked at a funeral home for several years prior to his military service. Additionally, vocational records show that the Veteran began taking courses at Hawkeye Community College in 2004 with coursework including computer concepts and applications, keyboarding, communications, and word processing. Although the Veteran reported dropping out, due in part to the nonservice-connected assaults discussed herein, the record reflects that he retains computer skills and familiarity. For example, the Veteran requested VA provide him a new laptop in mid-2007 because his old one was too slow, which signifies the Veteran’s continued use and computer literacy. Additionally, in 2009, the Veteran reported working on a computer “almost all day.” The Veteran’s work history demonstrates that he is capable of effectively working with others and with the public. Furthermore, his education, training experience, and extensive work history, indicate that the Veteran has the capacity for learning and training that are not hindered by his service-connected disabilities, as discussed in greater detail below, and which would allow for transition to new areas of employment.

Despite the Veteran’s pain symptoms and reduced range of motion, the evidence supports a finding that the Veteran has the physical ability to perform the activities required for substantially gainful employment. This is supported by the assessment of the September 2008 work performance evaluator, as well as that of the February 2011 VA examiner. Based on the testing performed during the September 2008 work performance evaluation, it was determined that the Veteran’s minimal overall level of work capabilities fell in the sedentary range, even despite self-limiting behaviors attributed to psychosocial or motivational factors. As discussed above, despite exhibiting an occasional limp, the majority of routine physical examination findings reflect that the Veteran has maintained a normal gait, sensation, coordination, fine motor function, reflexes, and strength. The Veteran has maintained independence in his activities of daily living and has reported the ability to partake in activities, such as recreational weekend travel, lifting the 40-pound speakers necessary for his part-time work, and swimming. Additionally, in June 2009, the Veteran reported that he was working in the karaoke business and working on a computer “almost all day.” These findings indicate that the Veteran’s symptoms can be accommodated by a restriction to sedentary work with a sit/stand option, so that the Veteran could adjust his position to maximize his comfort. Despite the contentions of the Veteran’s attorney, limitations including a sit/stand requirement or periodic breaks do not preclude employment, and the record supports that the Veteran’s service-connected disabilities would not increase absenteeism to the point of making the Veteran unemployable. The weight of the evidence suggests that the Veteran is physically capable of performing the activities necessary for substantially gainful employment.

Despite the Veteran’s migraine and symptoms, the evidence demonstrates that the Veteran has the mental ability to perform substantially gainful employment. This is supported by the assessment of the 2007 SSA examiner, as well as that of the 2009 VA examiner. It appears that the Veteran’s symptoms can be accommodated by normal breaks generally afforded in the course of normal employment, consisting of two 15-mintues breaks and a 30-minute lunch break during the course of an eight-hour workday. The April 2007 SSA examiner opined that only the psychological and cognitive effects of the August 2006 physical assault rendered the Veteran unemployable for SSA purposes. However, even considering the Veteran’s functioning as a whole, he appears to maintain adequate mental functioning to perform substantially gainful employment. Supporting this notion are findings on mental status examinations that reflect relatively unremarkable psychological and cognitive functioning throughout the relevant period, including assessments that the Veteran is consistently fully alert, oriented, cooperative, with a normal mood and affect, a goal-oriented and linear thought process, normal comprehension, intact attention and concentration, average intelligence, and intact insight and judgment. Despite multiple assessments of normal memory, the Veteran has reported that his memory issues worsened only after his 2007 bar assault, and not as a result of his service-connected migraines. The Veteran has predominantly required only routine management for migraine symptoms without the need for inpatient hospitalization, and he has maintained independence in activities of daily living. He reported the ability to continue part-time work, travel, and spending extended periods of time on his computer. Accordingly, for all of these records, the Board finds the weight of the evidence is against a finding that the Veteran has mental limitations that would preclude him from performing substantially gainful employment. 

Based on the above assessment of the Veteran’s physical and mental abilities with consideration of his education, training, skills, and work history, the Board finds that the Veteran is capable of work that would result in income at the level of substantially gainful employment with restrictions only to sedentary work with a sit-stand option, and including normal breaks, as defined above. For example, there are jobs that can be performed from home, such as a telemarketer, where the employee makes calls and reads a script, which does not require extensive training or experience, and would allow the Veteran to switch positions at will in order to maximize his comfort. Additionally, the Veteran appears capable of some clerical positions, such as data entry, wherein the Veteran would enter data sets into a computer system, which may also be performed from home, and would utilize the Veteran’s computer skills without requiring extensive training or experience. This job would also allow the Veteran to switch positions at will in order to maximize his comfort. The Veteran could also be a customer service representative, which involves interacting with customers to handle complaints, process orders and answer questions. His experience working for his wife’s DJ and Karaoke business demonstrates that the Veteran has retained the interpersonal skills necessary to work with the public that could also be utilized for a customer service representative position. 

As stated, this is not an exhaustive list but meant to illustrate the type of work that may be available to the Veteran. For all the reasons stated herein, the preponderance of the evidence against a finding that the Veteran is precluded from all forms of substantially gainful employment.

B.	Additional Considerations

In the February 2018 JMR, the parties agreed that the Board failed to adequately discuss the probative value of a February 2009 VA vocational rehabilitation counselor’s opinion. It appears from the JMR that the parties disagreed with the Board’s prior assessment, which they characterize as distinguishing “physical and mental capabilities” from “unemployment [or] difficulty in obtaining employment.” The parties have also requested the Board to consider “the counselor’s indication that [the Veteran] was unable to do specific duties running his and his wife’s business because of his physical and mental disabilities.” While the Board finds that the parties have focused on two alleged errors in the Board’s previous evaluation of the February 2009 VA vocational rehabilitation counselor’s opinion, to the exclusion of numerous other reasons and bases for the inadequacy of this opinion, the Board is compelled to re-examine this evidence considering the JMR’s directives. The February 2009 VA vocational counselor found that the Veteran’s vocational goals were infeasible, stating, in pertinent part:

Veteran’s current disability conditions of back injury, neck injury, and history of traumatic head injury substantially contribute to his inability to obtain employment. The Veteran has significant physical limitations, such as not being able to sit or stand in certain positions for long periods of time. He also has memory and concentration difficulties. Veteran’s wife helps him to carry out duties when running their karaoke business; he is no longer able to perform certain duties while running the business that he used to. His wife now does the bookkeeping, runs the shows, and does the computer work because the Veteran is no longer able to do so.  

The Board does not find this vocational counselor’s opinion to be probative in determining the Veteran’s entitlement to a TDIU rating for several reasons. The VA counselor appears to have inappropriately conflated the Veteran’s service-connected atypical migraines with the nonservice-connected exacerbation of headache and PTSD symptoms caused by the Veteran’s post-service assaults/traumatic head injuries. As discussed at length above, these factors cannot be considered in this TDIU determination, as the memory and concentration difficulties referenced by the counselor have been attributed by numerous medical professionals to the Veteran’s nonservice-connected 2007 and 2008 physical assaults and related head trauma. Certainly, the counselor did not directly attribute the memory and concentration issues to the headaches, and the evidence indicates otherwise. Even if the Board were to disregard this error, the VA counselor’s statement that the Veteran’s service-connected disabilities “substantially contribute” to unemployability does not mean that these disabilities alone result in unemployability; as is required for entitlement to a TDIU rating. Moreover, it is undisputed that the Veteran’s service-connected disabilities have resulted in functional deficits that affect employment, which are already contemplated by the separate schedular disability ratings in effect. The entire point of the rating schedule is to compensate for impaired earning capacity due to service-connected disorders. Impaired earning capacity does not equate to unemployability, however.

Next, there is no indication that the counselor reviewed the Veteran’s complete VA claims file. While the narrative report associated with the opinion contained a brief summary of the Veteran’s medical history, it did not delve into the complex medical issues surrounding the Veteran’s claims, such as the effect of the Veteran’s nonservice-connected head traumas on the development of his cognitive issues or his documented exaggerations of his symptoms/impairment, nor did it cite to specific medical evidence to support the stated physical limitations. While a review of VA’s claims file does not automatically mean an opinion is entitled to probative weight, when the file is NOT reviewed and there is significant information in the file that undercuts the conclusions reached by an examiner, the evidentiary value of that opinion is diminished, as it was not fully informed and not based on all relevant facts/medical history. 

While the narrative report indicated that the counselor reviewed the Allen Hospital Functional Capacities and Limitations assessment and included a recitation of these findings, the counselor made no attempt to square his subjective findings with the assessment’s objective conclusion that the Veteran could perform, at minimum, sedentary work, characterized by exerting up to 10 pounds of force occasionally and a negligible amount of force frequently to lift, carry, push, pull, or otherwise move objections, including the human body, and an ability to work eight-hour days/40-hour weeks in sedentary occupations which allow for alternating between sitting and other tasks. The counselor also appears to have relied primarily on the Veteran’s self-reported limitations—which the Board has already determined are not credible—in reaching his determination. The counselor acknowledged that the Functional Capacities and Limitations assessment found that the Veteran self-limited on 65 percent of the 17 tasks tested, but wholeheartedly accepted the Veteran’s assertion that this self-limiting was due to pain, despite the examiner’s expert opinion that self-limiting behavior in excess of 20 percent indicates psychosocial and/or motivational factors are affecting the test results.  

Finally, the Board has considered the counselor’s opinion that the Veteran’s disabilities have prevented him from assisting his wife with bookkeeping, running karaoke shows, and working on the computer; but remains unpersuaded. The Board reiterates that several of these professed limitations are due to the Veteran’s nonservice-connected residuals of head trauma. Additionally, there is no probative evidence in the record to support the counselor’s assessment that the Veteran cannot engage in bookkeeping, running karaoke/DJ shows (which other evidence in the record suggests he has continued to do), or use a computer. Moreover, even if the Board were to accept that the Veteran’s service-connected duties limit the Veteran from performing the duties of a disc jockey, which it does not, the Veteran could still find other gainful employment in different occupational fields, consistent with the Allen Hospital Functional Capacities and Limitations assessment and his educational and occupational history, as laid out above by the Board. 

For the reasons stated above, the Board does not find the February 2009 VA vocational counselor’s opinion to be probative in adjudicating the Veteran’s TDIU claim. The VA counselor’s opinion was not fully informed, considered nonservice-connected injuries, did not weigh the conflicting medical evidence, and fully accepted that the Veteran’s less-than-credible reports of physical and mental limitations without question. With these deficiencies, this opinion simply carries no evidentiary weight in this determination. As analyzed in depth above, the evidence preponderates against finding that the Veteran’s service-connected disabilities, in combination, have precluded him from securing or following substantially gainful employment throughout the entire appellate period.

In the February 2018 JMR, the parties indicated the Board erred under Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir, 2013) in diminishing the probative value of the May 2014 private vocational consultant’s report because he was not a physician. Upon remand, the Board abandoned such a finding within the July 2018 decision. Nevertheless, the Board found it troubling that the parties focused on this secondary finding to the complete exclusion of other, more significant reasons and bases (as set forth above) the Board provided for finding that the May 2014 private vocational consultant’s opinion lacked probative value. Again, to emphasize, this opinion is not persuasive primarily due to its increased reliance on the Veteran’s non-credible self-reports over the medical reports and its complete failure to acknowledge the medical evidence overwhelmingly establishing that the Veteran’s current cognitive impairments are the result of nonservice-connected head trauma.

 In fact, the Veteran’s attorney argues that the May 2014 private vocational assessment “unequivocally” supports an award of TDIU benefits, without addressing any of the inadequacies of this opinion. The May 2014 private vocational consultant cherry-picked the record for evidence to include in the medical history portion of the report, acknowledged a conversation the consultant had with the Veteran in May 2014, and issued a summary based entirely on the Veteran’s self-reported limitations. The consultant found that the “Veteran’s statements [from the May 2014 conversation] are consistent with information contained in medical records which document his functional impairment in occupational and personal situations beginning in 1991, and ultimately finding him unable to work in August 2002,” without any acknowledgement of the multitude of medical evidence highlighted supra, which found the Veteran to be an unreliable historian who frequently engaged in exaggeration of his symptoms and malingering-type behavior during functional testing. 

Moreover, the consultant ignored the Allen Hospital Functional Capacities and Limitations assessment conducted in September 2008, which found that the Veteran was capable, at a minimum, of sustained sedentary employment for eight hours per day, 40 hours per week, after consideration of service and nonservice-connected disabilities alike. Moreover, the May 2014 private vocational consultant tended to rely on generalities and made unwarranted leaps from those generalities instead of citing to objective medical evidence from the record to support his stated opinions. The Veteran’s attorney has continued to assert that the Board should ignore these evidentiary flaws in the private vocational consultant’s report because the consultant’s opinion “is inherently more probative than any medical examination because he is specifically trained and qualified on vocational matters” and that his report “accounted for numerous pieces of objective medical evidence.” 

Following the July 2018 Board denial, within the April 2019 Appellant’s Brief before the Court and subsequent contentions, the Veteran’s attorney argued that the Board’s discreditation of the 2014 vocational opinion should be set aside as invalid. The Board disagrees. The Board is not required to accept a VA examining physician’s opinion, a private physician’s opinion, a social worker’s opinion, or the opinions or contentions offered by any other source for that matter. The Court has stated, “It is the responsibility of the B[oard], not this Court, to assess the credibility and weight to be given to the evidence.” Hayes v. Brown, 5 Vet. App. 60, 69 (1993). By law, the Board is required to weigh conflicting evidence and evaluate its probative value. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. 

The vocational consultant’s trainings and qualifications in vocational matters goes to his competency to render his opinion, not the credibility of the opinion. As held in Nieves-Rodriguez, 22 Vet. App. 295, 301 (2008), the probative value of an opinion comes from the “factually accurate, fully articulated, and sound reasoning form the conclusion.” As described in detail above, the May 2014 private vocational consultant’s opinion lacks credibility, as it relied too heavily on the Veteran’s untrustworthy lay statements to the exclusion of the medical evidence of record. Moreover, the consultant’s reliance on generalities, without citation to objective physical findings in the record, rendered his vocational assessment incomplete and not fully articulated.  Based on these inadequacies, the May 2014 private vocational consultant’s opinion is afforded minimal evidentiary weight in this decision. 

Next, the Veteran’s attorney has cited Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) for the proposition that “a doctor is not an expert on employment in general” in an attempt to bolster the May 2014 vocational consultant’s credentials. A closer review of the Moore decision shows that the Court was distinguishing the role of VA examiners and rating specialists in the context of increased rating claims, versus TDIU claims, which were addressed in Friscia v. Brown, 7 Vet. App. 294, 297 (1994). The Court in Moore stated, in relevant part:

The Court in Friscia limited its holding to claims where the occupational history of the claimant is relevant, concluding that the Board had a duty, where the critical issue was total disability based on individual unemployability (TDIU), to request a medical opinion to discuss what effect the veteran’s service-connected disability had on his ability to work. Friscia, 7 Vet. App. at 297. As observed in Friscia, regulations governing TDIU, such as 38 C.F.R. § 4.16 (2006), and adjudication procedures found in the VA Adjudication Procedure Manual, M21-1, Part VI, make a veteran’s occupation relevant. Id. at 296-97. Accordingly, even though a doctor is not an expert on employment in general, once the regulations make a claimant’s specific occupation relevant, then it is possible to get a medical opinion on whether a claimant’s service-connected disabilities prevent him or her from performing the ordinary tasks of that profession. Hence, the Court in Friscia required a medical opinion on whether the appellant’s post-traumatic stress disorder rendered him unable to perform the ordinary tasks associated with aeronautics, business administration, and computer programming-the education and professions listed by the appellant. But, that case is inapplicable here because the Secretary was reviewing Mr. Friscia’s eligibility for TDIU. Id. at 295. In this case the appellant is not seeking a TDIU rating, merely a higher-than-previously-granted disability rating for atypical affective disorder. 

Moore, 21 Vet. App. at 218-219 (emphasis added). 

In citing Beaty v. Brown, 6 Vet. App. 532 (1994), the Moore Court further stated, “where the claimant’s ability to perform the tasks of a certain profession is relevant, a medical opinion on whether the claimant can perform those tasks is appropriate.” Thus, contrary to the Veteran’s attorney’s argument and reliance on incomplete quotations from Moore, the Court actually held that it was appropriate for VA examiners to comment on physical limitations in the employment setting, relevant to the Veteran’s previous occupational history. 

Here, the VA examiners reviewed the Veteran’s medical records, completed physical and functional evaluations of the Veteran, and articulated how those measurements would or would not result in physical or mental limitations, as required by 38 C.F.R. § 4.1 (“[f]or the application of this schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition.”). It was clear that each examiner considered these limitations in relation to the Veteran’s known employment as a disc jockey. 

The Moore Court further emphasized that VA adjudicators, such as the undersigned three VLJs, are tasked with reviewing the medical evidence, including reported limitations, and determining the effect of a disability on a claimant’s ability to earn a living. The undersigned VLJs have evaluated all the evidence of record and weighed the conflicting opinions. For the reasons elaborated throughout this decision, the Board finds the most probative evidence preponderates against an award of a schedular TDIU rating under 38 C.F.R. § 4.16 throughout the entire appellate period. 

Lastly, the Board acknowledges that the Veteran’s attorney has argued at length that the Veteran’s part-time employment as a disc jockey is marginal in nature, as applying SSA and Internal Revenue Service regulations regarding the definition of earned annual income would show that the Veteran’s net income has remained below the federal poverty threshold throughout the appellate period. The Board declines to engage in such an analysis. Regardless of whether the Veteran’s employment as a disc jockey is marginal or substantially gainful, the most probative evidence analyzed above shows that the Veteran’s service-connected disabilities, alone, have not prevented the Veteran from securing or following substantially gainful employment consistent with his educational and occupational attainment during the appellate period. The fact that his earnings may be marginal in nature does not automatically lead to the conclusion he meets the criteria for a TDIU rating. Rather, the relevant question is whether the Veteran is capable of maintaining substantial gainful employment considering any limitations due to his service-connected conditions in light of his educational and occupational history. For all the reasons laid out in detail above, the Board concludes the Veteran has such capability, the preponderance of the evidence is against a finding that he is precluded from securing or following a substantially gainful employment, and entitlement to a schedular TDIU rating is denied for the entire appellate period.

 

 

DELYVONNE M. WHITEHEAD

Veterans Law Judge

Board of Veterans’ Appeals

 

K. J. ALIBRANDO

Veterans Law Judge

Board of Veterans’ Appeals

 

 

A. JAEGER

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	G. Wonderling, Associate 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.