Citation Nr: 21027671 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 15-46 460 DATE: May 6, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU), due to service-connected disabilities prior to June 24, 2011 is granted. Entitlement to a 50 percent disability rating for tension headaches is granted throughout the pendency of this claim, subject to the criteria applicable to the payment of monetary benefits. REMANDED Entitlement to an initial disability rating in excess of 20 percent for lumbar strain prior to September 26, 2020, and in excess of 40 percent thereafter is remanded. Entitlement to service connection for a left leg disability, claimed as nerve damage is remanded. Entitlement to service connection for a right leg disability, claimed as nerve damage is remanded. INTRODUCTION The Veteran served on active duty from October 1979 to February 1986. In May 2017, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. When this case was before the Board in October 2018 and June 2020, the above-noted issues were remanded for further development. The case has since been returned for additional appellate review. FINDINGS OF FACT 1. The evidence is at least in relative equipoise as to whether the Veteran's service-connected disabilities precluded substantially gainful employment prior to June 24, 2011. 2. Throughout the period of the claim, the Veteran's tension headaches have been manifested by very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for a TDIU rating were met prior to June 24, 2011. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. 2. The criteria for a 50 percent rating for tension headaches have been met throughout the pendency of this claim. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As a preliminary matter the Board notes that, with respect to the Veteran's claims for an increased rating for his tension headaches and entitlement to a TDIU, the evidence is sufficient to grant entitlement to the benefit sought. Consequently, no further development is required to comply with VA's duties to notify and assist under 38 U.S.C. § 5103 or 38 C.F.R. § 3.159, as this is considered a complete grant of the benefits sought. Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary 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). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. TDIU Rating The Veteran contends his service-connected disabilities rendered him unemployable prior to June 24, 2011. Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or 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. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The central inquiry is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Prior to June 24, 2011, the Veteran's service-connected disabilities were the following: dysthymia with anxiety rated 50 percent disabling; tension headaches rated as 50 percent disabling; as well as a chronic lumbar strain, which was rated 20 percent disabling. The Veteran's combined disability rating was 80 percent. He therefore satisfied the schedular requirement for consideration of TDIU. The Veteran provided a VA Form 21-8940 Veteran's Application for Increased Compensation Based on Unemployability in February 2009, wherein he indicated his disabilities affected his full-time employment in 2000, that he last worked in 2001, and became too disabled to work in 2002. He provided a second VA Form 21-8940 Veteran's Application for Increased Compensation Based on Unemployability in November 2016, wherein he indicated he last worked and was too disabled to work in February 2002. Then, in December 2016 the Veteran provided information as to his prior employment history and annual income for the years 1999-2003. Based on the foregoing, it is unclear as to the exact date the Veteran became unable to engage in substantially gainful employment. Turning to a review of the medical evidence the Board notes that during his first formal VA neurological disorders examination to assess his service-connected headaches in May 2010 the examiner indicated the Veteran's headache disorder made normal activity not possible and precluded activities of daily living when present. The examiner also stated the Veteran had challenges with his lumbar spine disability, to include putting on his shoes and socks. He stated the Veteran also experienced painful flare-ups at that time that resulted in additional pain. In September 2017, the Veteran provided a medical history assessment and opinion from his private physician. In sum, the clinician chronicled the Veteran's salient medical history as it pertained to his service-connected disabilities, and determined it was as least as likely as not the Veteran was prevented from maintaining gainful employment since at least February 2002. Likewise, in September 2020 a VA examiner reviewed the Veteran's complete file and provided a retrospective medical opinion addressing the Veteran's functional impairments. Following a thorough review of the Veteran's service-connected disabilities, the examiner concluded there was a 50 percent or greater probability the Veteran's service-connected disabilities were sufficient to preclude him from obtaining or maintaining any form of substantially gainful employment consistent with his education and occupational background prior to June 24, 2011. Consequently, the Board resolves all remaining doubt in the Veteran's favor and grants the appeal seeking a TDIU rating prior to June 24, 2011. Increased Rating for Tension Headaches Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. The Veteran's service-connected tension headaches are rated under 38 C.F.R. § 4.124a, Diagnostic Code 8100. Service connection for tension headaches was established by way of an August 2012 Board decision. In a subsequent October 2012 rating decision, the RO assigned 30 percent disability rating. The Veteran submitted a timely appeal as to the rating assigned. In a recent February 2021 rating decision, the RO assigned a maximum 50 percent disability rating effective from September 26, 2020. The initial question in this case is whether the maximum, 50 percent rating, is warranted throughout the entire period under appeal. The maximum schedular disability rating of 50 percent is warranted for migraine headaches with very frequent and completely prostrating and prolonged attacks productive of severe economic inadaptability. The rating criteria do not define "prostrating," nor has the Court. Cf. Fenderson v. West, 12 Vet. App. 119 (1999) (Diagnostic Code 8100 is quoted verbatim, but the Court does not specifically address the matter of what is a prostrating attack.). According to DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1531 (32nd Ed. 2012), "prostration" is defined as "extreme exhaustion or powerlessness." On VA examination in May 2010 the examiner noted the Veteran's reports of headaches more than monthly, which were prostrating, made normal activity not possible, and impeded the Veteran's abilities to conduct activities of daily living when present. In an addendum to that examination, the examiner indicated the Veteran had lost his last job because of his headache disorder. Though the Veteran underwent a VA examination in September 2012 where the examiner found the Veteran's headaches were not prostrating, and also did not affect his ability to work, these finding seem to be outliers when compared to the Veteran's entire history. In this respect, the Board also notes a December 2019 VA examination wherein the examiner stated the Veteran experienced daily headaches. The examiner also indicated that when the Veteran experienced his headaches, he was unable to function until his headache subsided and needed to lie down in a dark and quiet room. Most recently the Veteran underwent a VA headaches examination in September 2020. This report indicated the Veteran experienced very frequent prostrating and prolonged attacks of migraine headache pain, which would result in severe economic inadaptability. Upon review of the evidence as outlined above, the Board finds the Veteran is entitled to the maximum 50 percent rating for his migraine headaches throughout the period of the claim. The evidence clearly shows he has experienced very frequent headaches, more than once per month, which caused him to miss work. Additionally, the Veteran has provided testimony illustrating his headaches have been productive of severe economic inadaptability, such as to in fact significantly impair his ability to maintain employment. Thus, the Board finds a 50 percent rating is warranted throughout the period of this claim. Again, 50 percent is the maximum scheduler rating allowable for migraine headaches. REASONS FOR REMAND Unfortunately, the Veteran's lumbar spine and lower extremity neurological disability claims must again be remanded in order to ensure compliance with the prior Board remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In prior remands, the Board has indicated that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). However, to date, substantial compliance with these Board instructions has not been achieved. In the course of the October 2018 and June 2020 remands, the Board fully explained that an assessment of the Veteran's flare-ups, as well as range of motion measurements in weight bearing, non-weight bearing, and in passive motion were necessary to properly evaluate the Veteran's lumbar spine disability. See Sharp v. Shulkin, 29 Vet. App. 26 (2017); see also Correia v. McDonald, 28 Vet. App. 158 (2016). The Veteran underwent another VA examination in September 2020; unfortunately, the examiner again ignored the Board's instructions and failed to provide a range of motion assessment on both weight bearing and non-weight bearing. Therefore, this examination contains the same fatal deficiencies noted in the prior VA examinations, and a remand is necessary to obtain an examination that satisfies sufficiency standards. Further, the Board previously found deficiencies in prior VA examinations, because the examiners failed to discuss or consider the Veteran's lower extremity neurological manifestations or diagnoses. Following the above-noted September 2020 VA examination, the examiner determined neurological disabilities of the lower extremities could not be diagnosed on examination; however, the examiner again failed to consider or discuss the Veteran's diagnoses of sciatica or his reported neurological manifestations. As such, a remand is necessary to properly address these matters. Accordingly, these matters are REMANDED for the following actions: Afford the Veteran a VA examination by an examiner with sufficient expertise to fully assess the severity of the Veteran's service-connected lumbar spine disability. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. Ensure the examiner provides all information required for rating purposes, to specifically include both active and passive range of motion testing, as well as weight-bearing and nonweight-bearing range of motion assessments. In addition, the examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups, and then provide an assessment of the functional loss during flares, if possible in degrees of motion lost. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. Also, following a review of the relevant records and lay statements, the examiner who conducts the Veteran's lumbar spine examinations should state an opinion with respect to whether any diagnosed lower extremity neurological disability at least as likely as not (a 50 percent probability or greater): a) originated during his period of active service or is otherwise etiologically related to his active service; b) was caused by his service-connected lumbar spine disability; or c) was worsened to any degree by his service-connected lumbar spine disability. The examiner must specifically address the Veteran's reports relative to the etiology of the claimed disabilities. Additionally, the examiner must consider and expressly discuss the December 2019 VA examination, wherein the Veteran's was diagnosed with sciatica. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Fraser, 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.