Citation Nr: 21026879 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 13-12 808 DATE: May 4, 2021 ORDER A compensable rating for pituitary adenoma is denied. REMANDED The issue of entitlement to a total disability rating based upon individual unemployability (TDIU) due to the Veteran's service-connected disabilities is remanded. FINDING OF FACT The Veteran's pituitary adenoma was asymptomatic during the appeal period. CONCLUSION OF LAW The criteria for a compensable disability rating for pituitary adenoma are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.119, DC 7916, 4.124a, DC 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from July 2003 to April 2009. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The issue of entitlement to TDIU was remanded by the Board in April 2015, October 2016, November 2019, and November 2020. The issue of entitlement to a compensable rating for pituitary adenoma was also remanded by the Board in November 2019 and November 2020. Entitlement to a compensable rating for pituitary adenoma. The Veteran's pituitary adenoma is currently rated as noncompensable under diagnostic code 8100-7916. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. Pursuant to diagnostic code 7916, hyperpituitarism (prolactin secreting pituitary dysfunction) is to be evaluated as malignant or benign neoplasm, as appropriate. A malignant neoplasm is rated under diagnostic code 7914 as 100 percent disabling. Diagnostic code 7914 provides that a rating of 100 percent shall continue beyond the cessation of any surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure. Six months after discontinuance of such treatment, the appropriate disability rating shall be determined by mandatory VA examination. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of §3.105(e) of this chapter. If there has been no local recurrence or metastasis, rate on residuals. Diagnostic code 7915 provides that a benign neoplasm of any specified part of the endocrine system shall be rated as residuals of endocrine dysfunction. Under diagnostic code 8100, a 10 percent disability evaluation is warranted for characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent disability rating is assigned for migraine headaches with characteristic prostrating attacks occurring on an average of once a month over the last several months. A 50 percent rating is assigned for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The Veteran's June 2009 magnetic resonance imaging (MRI) study found a small 0.5-centimeter lesion in the right posterior aspect of the pituitary gland, which was noted to be most likely microadenoma. A January 2011 MRI report noted worsening headaches; however, the MRI findings were normal appearance of the brain with no significant abnormality identified in the pituitary gland and the previously described focal area of non-enhancement in the pituitary faintly present. A July 2013 MRI study showed no abnormality of the brain or sella and no pituitary microadenoma. In November 2013, the Veteran reported worsening headaches since July 2013. As such, the November 2019 Board remand directed the RO to obtain a VA examination to assess the severity of the Veteran's pituitary adenoma. In a May 2018 statement, his former representative stated that the Veteran had very frequent headaches which occurred more than once per month, as shown by his report at the June 2009 VA examination that he had headaches four times per week and lasting all day. An endocrine disease (other than thyroid, parathyroid, or diabetes mellitus) Disability Benefits Questionnaire (DBQ) was completed in July 2020, which included only a review of the records due to the COVID-19 pandemic. The examiner diagnosed "pituitary adenoma, 2009, resolved 2013, D35". He noted that the July 2013 MRI study showed no abnormality in the brain or sella and no pituitary microadenoma. Question 9A of the DBQ specifically asked whether the Veteran had any other pertinent physical finding, complication, condition, sign, or symptom related to any of the conditions listed in the diagnosis section and the examiner found that he did not. Pursuant to the November 2020 remand directives, a February 2021 DBQ was completed with an in-person examination of the Veteran and a review of the records. The DBQ noted a diagnosis of pituitary adenoma. The examiner noted that a 2009 MRI of the brain suggested the presence of pituitary adenoma, however a July 2013 MRI of the brain showed no evidence of pituitary adenoma. The examiner noted no continuous medication was required, the Veteran did not have surgery for an endocrine condition, and the Veteran did not have any other type of treatment for an endocrine condition. The examiner found no benign or malignant neoplasm or metastases related to any of the diagnoses. The DBQ asked the examiner to select the body systems affects by the diagnosis listed and no body systems are selected. Question 9A of the DBQ asked whether the Veteran had any other pertinent physical finding, complication, condition, sign, or symptom related to any of the conditions listed in the diagnosis section and the examiner found that he did not. Notably, the examiner stated that the Veteran's pituitary adenoma was quiescent. Based on the aforementioned evidence, the Board finds that the Veteran's pituitary adenoma was asymptomatic during the appeal period. Although the Veteran reported headaches, no competent medical provider has indicated that those headaches are associated with pituitary adenoma, and the February 2021 VA examination expressly stated that pituitary adenoma did not affect any body systems and was quiescent. Accordingly, a compensable rating is not warranted for pituitary adenoma and the appeal is denied. REASONS FOR REMAND The Veteran also seek entitlement to TDIU, to include on the basis of marginal employment. See November 2019 correspondence. In March 2015, the Veteran reported that he was employed but he feared that his employer would terminate him due to his symptoms on the job and the considerable amount of time he missed each month due to his symptoms. See March 2015 statement in support of claim. The Board finds that there is insufficient information in the claims file to determine whether the Veteran has been unable to obtain or maintain substantially gainful employment throughout the appeal period. The Veteran meets the threshold schedular requirement for an award of TDIU benefits under 38 C.F.R. § 4.16(a). Further, in May 2016, a private psychologist determined that, since 2009, the Veteran has been rendered unable to secure or follow substantially gainful employment solely as a result of his service-connected depressive disorder. However, a June 2018 VA examination showed that the Veteran worked full-time throughout the appeal period, and that this was not marginal employment. A VA Form 21-8940 must be completed in order to determine the Veteran's employment status. Marginal employment must be considered. The Board notes that the term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. For purposes of determining whether a claimant is entitled to a TDIU, marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Id. Marginal employment may also be held to exist, on a facts found basis (including but not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Id. Consideration shall be giving in all claims to the nature of the employment and the reason for termination. Id. In this regard, the RO must also request that the Veteran submit evidence (e.g., pay stubs, W2 Forms, tax returns, letters from employers, etc.) documenting his employment and marginal employment, if any, due to his service-connected disabilities. This should include evidence showing that the Veteran's employment is in a protected environment such as a family business or sheltered workshop. The Board notes that in May 2020, November 2020, and January 2021 letters, the RO requested that the Veteran complete a VA Form 21-8940. However, a VA Form 21-8940 was not completed as of the date of this decision. The Board will allow the Veteran yet another opportunity to submit a completed VA 21-8940 to pursue the claim of entitlement to a TDIU. The Veteran is reminded that the duty to assist is a two way street. If he wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The matters are REMANDED for the following action: Request that the Veteran complete a VA Form 21-8940 and submit evidence to VA (e.g., pay stubs, W2 Forms, tax returns, letters from employers, etc.) documenting his employment, hours worked, and pay, so that the Board can determine whether the Veteran is currently employed; and if so, whether his employment may be considered marginal for any portion of the appeal period. The information requested should include any evidence showing that the Veteran's employment is in a protected environment such as a family business or sheltered workshop. Jacqueline E. Miller Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Samuelson, 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.