Citation Nr: 21021611 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 17-62 123A DATE: April 13, 2021 ORDER Entitlement to service connection for migraines, including as secondary to posttraumatic stress disorder (PTSD), is denied. Entitlement to a total disability rating based on individual unemployability (TDIU), however, is granted. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s migraines are caused or aggravated by his service-connected PTSD or that they are otherwise related or attributable to his service. 2. However, his service-connected PTSD renders him incapable of obtaining and maintaining employment that could be considered substantially gainful versus just marginal in comparison.   CONCLUSIONS OF LAW 1. The criteria are not met for entitlement to service connection for migraines, including as secondary to service-connected PTSD. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. But the criteria are met for entitlement to a TDIU. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant had active duty for training (ACDUTRA) from April to May 1975 for a total of 35 days. These claims were last before the Board of Veterans’ Appeals (Board) in April 2020 when they were remanded back to the local Regional Office (RO) (Agency of Original Jurisdiction (AOJ)) to further assist the Veteran in their development. At the time, he also was trying to establish his entitlement to service connection for an acquired psychiatric disability, and the Board also remanded that claim. An October 2020 decision since issued on remand, however, granted the claim of entitlement to service connection for an acquired psychiatric disability (more specifically, for PTSD inclusive of major depressive disorder and generalized anxiety disorder) and assigned an initial 70 percent rating for it. An even more recent March 2021 decision has proposed to reduce the rating for the PTSD, major depressive disorder, and generalized anxiety disorder from 70 to 50 percent, but that has not yet occurred. The Veteran will have opportunity to contest that intended reduction in rating, including have a hearing on the matter.   The Veteran has not appealed the 70 percent rating initially assigned for his PTSD, major depressive disorder, and generalized anxiety disorder or the proposed reduction in rating from 70 to 50 percent for this now service-connected disability. He must separately appeal these “downstream” issues. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). On remand the RO continued to deny these remaining claims for service connection for migraines and for a TDIU, so these claims are again before this Board. 1. Entitlement to service connection for migraines, including as secondary to the now service-connected PTSD The primary basis of this claim is that the Veteran’s migraines should be determined service connected because they are secondary to, meaning caused or aggravated by, a service-connected disability, namely, his PTSD. 38 C.F.R. § 3.310(a) and (b); see also Allen v. Brown, 7 Vet. App. 439 (1995). Establishing service connection on a secondary basis requires evidence showing (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Id. See also El-Amin v. Shinseki, 26 Vet. App. 136 (2013). The Veteran has been in treatment for complex migraines since at least 2015, so there is no disputing he has this claimed condition. Unfortunately, however, the record does not also reflect the required attribution of his migraines to his military service necessary to warrant the granting of service connection – including by way of his service-connected PTSD. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). Notably, there are no treatment records, medical notes, or formal medical opinions on record establishing any correlation between the Veteran’s PTSD and his migraines. The only medical opinion discussing this posited correlation is the October 2020 VA migraine examination he had on remand. The examiner noted severe, complex symptoms, but without any relation to the PTSD, citing medical articles finding PTSD does not cause migraines, migraine treatment notes, and the lack of correlation between the Veteran’s PTSD symptoms and his migraines manifestation and treatment. Also, notably, this examiner cited articles conversely suggesting there may be a connection between migraine sufferers being more susceptible to PTSD, rather than the reverse – that PTSD causes or aggravates migraines. Moreover, the Veteran’s September 2020 VA PTSD examination, which he also had on remand, likewise noted that his migraines were likely to exacerbate symptoms of his PTSD, rather than the other way around. Therefore, the only evidence maintaining the inverse correlation – that the PTSD causes or aggravates the migraines, is the Veteran’s unsubstantiated lay assertions. During his April 2020 hearing before this Board, he testified that he believes his migraines are caused by his PTSD because they tend to occur when he gets nervous or stressed. His VA PTSD examinations in September 2020 and February 2021 both identify anxiety and suspiciousness as symptoms of PTSD. Unfortunately, these statements alone do not provide adequate grounds to grant secondary service connection. Although a Veteran is generally considered competent to provide testimony of facts to which he has first-hand knowledge – such as symptom onset– there are circumstances where the Board may make findings that lay statements are beyond the competence of the giver, or that the statements are not credible, or that the giver of the lay evidence is mistaken. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer). Here, the October 2020 VA examination is the only medical opinion of record directly addressing this determinative issue of whether there is a correlation between the Veteran’s PTSD and his migraines, and this VA examiner rather definitively concluded the Veteran’s PTSD does not cause or aggravate his migraines. This VA medical examiner’s opinion is unrefuted.   Migraines are not the type of simple condition that would permit the Veteran to determine when he first had them, including in terms of whether it was during his time in the military and whether his PTSD causes or aggravates them. Instead, migraines are complex, thus, requiring supporting medical evidence to link them to his service, including by way of his PTSD. When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent, and, as explained, migraines are not that type of disability. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); 38 C.F.R. § 3.159(a)(1) and (2). Although, for the reasons and bases already discussed, service connection on a secondary basis may not be granted, the Board nonetheless will still consider whether the Veteran may be entitled to service connection, instead, on a direct or presumptive basis. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Service connection on a direct basis is warranted where there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or a disease, and (3) a nexus, or link, between the current disability and the disease or injury in service. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Certain “chronic” conditions, including migraines, alternatively may be awarded service connection on a presumptive basis if they manifested to a degree of at least 10 percent within 1 year of service separation or during service and then again at a later date, if not attributable to an intervening (“intercurrent”) cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303(b), 3.307, 3.309; see also Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013). A 10 percent rating for migraines is warranted when the disability manifests with characteristic prostrating attacks averaging one in 2 months over last several months. Further, evidence of continuity of symptomatology may be sufficient to invoke this presumption if a claimant demonstrates (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet. App. 488, 49697 (1997)); 38 C.F.R. § 3.303(b). During his hearing, the Veteran testified that his migraines began after leaving service. Dr. Goldberg’s June 2017 letter noted that the Veteran was experiencing “face-numbing” migraines in August 1977, more than two years after his service. At his October 2020 migraine examination, the Veteran again reported headaches after service and the they were not severe at the time. Moreover, it must be remembered that the Veteran served on ACDUTRA from April to May 1975, for a total of 35 days, and not only does the evidence not show inception of his migraines during that service, but presumptive periods do not apply to ACDUTRA. See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). And, even if they did, presumptive service connection is only permissible if he had at least 90 days of continuous, qualifying service. Consequently, the Board finds that the preponderance of the evidence is against this claim for service connection for migraines on either a direct, presumptive, or secondary basis. The Board has considered the benefit-of-the-doubt doctrine; however, there is not an approximate balance of positive and negative evidence. As the preponderance of the evidence is against the claim, this doctrine is inapplicable, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to a TDIU The issue in a TDIU case is whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment (i.e., work that is more than marginal, that permits him to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). Unlike the regular disability Rating Schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training and previous work experience, but not to age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A TDIU may be assigned by the Board in the first instance when the disabled person is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.34l, 4.16(a). Effectively since May 27, 2016, the Veteran has had a 70 percent rating for his service-connected PTSD that also includes major depressive disorder and generalized anxiety disorder. This is his only service-connected disability. In March 2021, the RO proposed to reduce this rating to 50 percent. However, as that intended reduction has not yet occurred – including because he will have opportunity to contest it and have a hearing on the matter, his rating for all intents and purposes is still 70 percent. Thus, this rating meets the rating requirements for schedular TDIU consideration according to § 4.16(a). And, after consideration of the relevant evidence of record, the Board finds a TDIU is warranted because the most probative (meaning most competent and credible) evidence is at least in equipoise regarding whether the Veteran's service-connected mental disability (considering all diagnoses) precludes him from obtaining and maintaining substantially gainful employment with consideration of factors such as his prior work experience, training and education. The record establishes that he has approximately just nine years of formal education and has worked in construction, dish washing, and security positions. He has been unemployed since the early 2000’s. In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court of Appeals for Veterans Claims (CAVC) held that "substantially gainful employment," in the TDIU context, contains economic and noneconomic components; the economic component means "an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment.   The CAVC also provided guidance as to the meaning of a veteran's ability to "secure and follow" such employment, noting that attention must be given to: the veteran's occupational history, education, skill and training; whether the veteran has the physical ability to perform occupational activities; and whether the veteran has the mental ability to perform occupational activities. The ultimate question of whether a Veteran is capable of sustaining or obtaining a substantially gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed.Cir.2013) ("[A]pplicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner"). Although VA must give full consideration, per 38 C.F.R. § 4.15, to "the effect of combinations of disability," VA regulations place responsibility for the ultimate TDIU determination on VA adjudicators, not a medical examiner's opinion. Geib, 733 F.3d at 1354 (Fed. Cir. 2013); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). The Veteran’s PTSD symptoms include depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships and adapting to stressful circumstances, including work or a worklike setting. The February 2021 VA PTSD examiner surmised that the Veteran’s PTSD symptoms, specifically anxiety, poor concentration, memory problems, and irritability “render [him] a significant reliability risk” to employers. This examiner added the Veteran’s “irritability and cognitive issues render him a moderate safety risk” in a job setting. These predicted, significant employment challenges are realized when reviewing the Veteran’s employment history. His February 2021 TDIU application (on VA Form 21-8940) identified his last job as working security for Adesa car dealership from sometime in 2000 to December 2001. Previously, he was a dishwasher at Cracker Barrel restaurant from 1999 until 2000. The record varies on whether he quit the dish washer job or was fired, but regardless, he testified that his leaving was due to an inability to handle the stress of that job. He reported being fired from the 2001 security job due to conflicts with supervisors. The report of a SSA psychological evaluation from February 2001 concluded that he would “find it very difficult to maintain employment with his impulsivity and angry attitude toward authority.” The Board recognizes that the Veteran has other conditions that weigh on his ability to maintain employment. His medical records reflect diagnoses for non-service-connected migraine headaches and dyslexia, per Dr. Goldberg’s June 2017 letter, and personality disorder with anti-social features, chronic obstructive pulmonary disease (COPD), and glaucoma, per his October 2016 SSA disability determination medical evaluations. His migraines occur several times monthly, but per his October 2020 VA examination, they do not carry any functional or work limitations. It is unclear if he has any functional limitations due to his COPD or glaucoma, but the record does not suggest major impairments. However, his SSA disability evaluations from 2001 and 2016 reflect findings that suggest his dyslexia and personality disorder negatively affect his employment. Specifically, it notes that he has challenges reading, writing, and doing basic math, attributable largely to his dyslexia. These evaluations rarely parsed his symptoms, identifying one or another as stemming from PTSD versus personality disorder, for example. Despite these findings, VA examiners do not credit these diagnoses in their assessment of the Veteran’s PTSD or note them as the source of his functional impairments. As discussed, the examiner opinions are based on PTSD symptoms. Notably, the Veteran’s September 2020 and February 2021 VA PTSD examinations both identified his SSA evaluations – and presumably therefore, his dyslexia and personality disorder notes – as specifically reviewed by the examiners. Neither identified dyslexia or personality disorder as diagnoses or credited these conditions in their separate analyses. Therefore, there is no evidence that the examiners intended to attribute his functional impairments to dyslexia or personality disorder – rather, it appears that his significant impairments stem only from his PTSD symptoms, regardless if they overlap with other diagnoses. Further, the Board observes that, where it is not possible to distinguish the effects of a nonservice-connected condition from those of a service-connected condition, the reasonable doubt doctrine dictates that all symptoms be attributed to the Veteran's service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). Generally, the degrees of disabilities specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. See 38 C.F.R. §§ 4.1, 4.15. In other words, the disability rating, itself, is recognition that industrial capabilities are impaired. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consequently, the record must reflect some factor that takes a particular case outside the norm for a claim for individual unemployability benefits to prevail. As the Court further explained in Van Hoose, the mere fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether he can perform the physical and mental acts required by employment, not whether he can find employment. Here, though, considering the Veteran's substantial limitations owing to his PTSD, including the memory impairment, irritability, impulsivity and anger that render him a significant reliability risk and a moderate safety risk in the workplace, the Board finds the evidence shows that, for all intents and purposes, he is precluded, by reason of his service-connected disability, from obtaining and maintaining gainful employment consistent with his education and occupational experience. See Geib, 733 F.3d at 1354 (Fed. Cir. 2013) (noting that "applicable regulations place responsibility for the ultimate TDIU determination on the [adjudicator], not a medical examiner"). Thus, a TDIU is warranted. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. Stearns, 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.