Citation Nr: 21024313 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 18-50 461 DATE: April 22, 2021 ORDER Entitlement to service connection headaches is granted. Entitlement to a total rating based on individual unemployability (TDIU) is granted. REMANDED Entitlement to a nonservice-connected pension is remanded. FINDINGS OF FACT 1. Headache are due to service-connected disabilities. 2. The Veteran’s service-connected disabilities precluded substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for headaches have been met. 38 U.S.C. §§ 1101, 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from August 1990 to March 1992. In an August 2019 decision the Board of Veterans’ Appeal (Board), among other things, denied claims of service connection for headaches and an acquired psychiatric disorder including posttraumatic stress disorder (PTSD) and remanded a claim of service connection for a traumatic brain injuries (TBI). As to the claims of service connection for headaches and an acquired psychiatric disorder including PTSD, the Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2020 order, which incorporated the parties Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the August 2019 decision to the extent that it denied service connection for headaches and an acquired psychiatric disorder including PTSD. In November 2020, the Board remanded the claims of service connection for headaches and an acquired psychiatric disorder including PTSD. As to the claims of service connection for a TBI and an acquired psychiatric disorder including PTSD, the Board finds that these issues are no longer in appellate status because the regional office (RO) in May 2020 and January 2021 rating decisions, respectively, granted these claims. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). The Service Connection Claim The Veteran claims that he is entitled to service connection for headaches because, in substance, they are due to his service-connected TBI and/or PTSD with alcohol abuse. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this regard, in order to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Ward v. Wilkie, 31 Vet. App. 233 (2019). The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Turning to the evidence, the first element of service connection – a current disability – is met as he has been diagnosed with a headache disorder throughout the appeal period. Specifically, a May 2016 VA examiner found he had tension headaches originally diagnosed in 2014, and a January 2021 VA examiner found he had a diagnosis of migraine to include migraine variants, as diagnosed in 2016. His medical records throughout the appeal period consistently show treatment for headaches. As such, the first element is met. The second element – a service-connected disability – is also met, as he is service connected for PTSD with alcohol abuse as well as a TBI. As to the third element, the May 2016 VA examiner opined that the Veteran’s headaches are due to the know service-connected alcohol abuse due to his PTSD. Moreover, the subsequent December 2020 VA examiner found that it was impossible to differentiate the Veteran’s PTSD and alcohol use disorder, as the they overlapped and interacted with each other in such a way, and that medical and psychological literature noted a co-morbidity between the two. In this regard, the Board finds that the above VA opinions are supported by well-reasoned rationale and not directly contradicted by any other evidence of the record. See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when decision makers give an adequate statement of reasons and bases); Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) (“the probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators...”); Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Under such circumstances and with granting the Veteran the benefit of any doubt in this matter, the Board concludes that the most probative evidence of record shows that the appellant’s headaches are secondary to a service connected disorder and service connection for headaches is warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56. The TDIU Claim The Veteran claims he is entitled to a TDIU because his service-connected disabilities prevent him from working. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation because of a service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. In calculating if the Veteran met the above schedular criteria VA combines the Veteran’s service-connected orthopedic disorders. The existence or degree of non-service-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran’s service-connected disabilities render his incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). A TDIU may be assigned where the schedular rating is less than total if a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). Generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Further, marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The record shows that the Veteran is service-connected for the following disabilities: • PTSD with alcohol abuse rated as 70 percent disabling from January 13, 2014, to November 30, 2015; • PTSD with alcohol abuse and a TBI rated as 70 percent disabling from November 30, 2015; and • headaches not as yet rated by the RO. In summary, the Board finds that this record shows that the Veteran meets the schedular requirements of 38 C.F.R. § 4.16(a) because he has one disability rated as 40 percent or higher and he has a combined rating of 70 percent or higher. The next question for the Board to consider is when, if ever, his service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). In this regard, the Veteran’s VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability (TDIU Claim Form), dated in December 2016, reported that he had not worked full-time and became too disabled to work in December 2013 because of his service-connected disabilities. As to his work history, the Veteran reported that from 2006 to 2013 he worked as driver for Morgan Hauling for 50 hours a week. As to his education, the Veteran reported that he had 1-years of college. As to the Veteran’s being able to work performing jobs that require sedentary employment and non-sedentary employment, including his past employment as a truck driver as well as other possible employment that could make use of his work experience, training as an electrician, and 1-years of college, the Board finds that the medical records show that the problems caused by his service-connected PTSD, alcohol abuse, TBI, and headaches adversely impact his ability to work in any field because of the overall impairment they have to his body and mind to include the stamina needed to work a full-day, concentrate on the tasks required by employment, and interact effectively with co-workers and/or customers. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (holding that the determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the regional office). The Board also finds that his service-connected PTSD would make it dangerous for the Veteran and his co-workers for him to work in most non-sedentary employments. Id. Similarly, the Board finds that that the problems caused his service-connected PTSD, alcohol abuse, TBI, and headaches would make it very difficult to learn the new skills needed to work in most sedentary employments and thereafter interact with his co-workers as well as any customers and carry out the duties required by such employment. Id. Given the above, the Board finds that the Veteran’s service-connected disabilities prevent him from securing or following a “substantially gainful” occupation given his prior vocational history, work experience, and the impact his service-connected PTSD, alcohol abuse, TBI, and headaches have on obtaining and maintaining substantially gainful non-sedentary employment and sedentary employment, including in his past employment as a truck driver, because of the problems they would cause in any work environment. Therefore, the Board finds that the most probative evidence of record shows that the Veteran’s service-connected disabilities render him incapable of substantial gainful employment given his prior vocational history, work experience, and the impact his service-connected disabilities have on all employment and the claim for a TDIU is granted. See 38 C.F.R. § 4.16(a). In reaching the above conclusion, the Board has not made any finding as to the effective date of the award of the TDIU because this issue is not before us. REASONS FOR REMAND Initially, the Board notes that as discussed above the Veteran meets the criteria for a TDIU. Therefore, while the remaining issue on appeal is in Remand status the Veteran, after consultation with his representative, may wish to withdraw the below claim (in writing). Entitlement to a nonservice-connected pension is remanded. As for entitlement to a nonservice-connected pension, remand is necessary for additional notice and developments. First, the Board notes that the Court has held that when the Board addresses in its decision a question that has not yet been addressed by the RO, the Board must consider whether the veteran has been given adequate notice of the need to submit evidence or argument on the question, whether he has been given an adequate opportunity to actually submit such evidence and argument, and whether the statement of the case provided the veteran fulfills the regulatory requirements. See 38 C.F.R. § 19.29. If not, the matter must be remanded to the RO to avoid prejudice to the veteran. See 38 C.F.R. § 19.9; Bernard v. Brown, 4 Vet. App. 384, 393 (1993); 38 C.F.R. § 19.9 . In this regard, the Board notes that while the RO denied nonservice-connected pension because the Veteran did not have the requisite service under 38 C.F.R. § 3.12a(b-c) (see statement of the case (SOC) dated in October 2019), the Veteran’s discharge was due to misconduct associated with his psychiatric disorder, and the appellant is now service-connected for an acquired psychiatric disorder diagnosed as PTSD with alcohol. Therefore, the Board finds that a Remand is required for the RO to consider in the first instance if the appeal qualifies for the exclusions found at 38 C.F.R. § 3.12(a)(d). See 38 C.F.R. §§ 19.9, 19.29; Bernard, supra. Second, the Board notes that the rating assigned by the newly service-connected headaches and the TDIU award will impact whether the Veteran exceeds the income and net worth requirements for a nonservice-connected pension. Therefore, the Board finds that a Remand is required for the RO to make these awards before it can again adjudicate the nonservice-connected pension claim. See 38 C.F.R. § 19.9. This issue is REMANDED for the following action: After the RO issues a rating decision that assigns the Veteran’s newly service-connected headaches a disability rating and addresses the above TDIU award, it should issue him a supplemental statement of the case (SSOC) as to the nonservice-connected pension claim which, among other things, addresses whether he qualifies for the exclusions found at 38 C.F.R. § 3.12(a)(d) as well as whether he exceeds the income and net worth criteria to qualify for a nonservice-connected pension. NEIL T. WERNER Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brendan A. Evans, 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.