Citation Nr: 21031858 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 13-16 813 DATE: May 24, 2021 ORDER Entitlement to service connection for headaches, to include as secondary to the service-connected shell fragment wound of the right side of neck with neuropathy of a portion of the cervical cutaneous nerve is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDINGS OF FACT 1. The most probative evidence of record indicates that the Veteran's current headaches are not related to service or caused or aggravated by his service-connected shell fragment wound of the right side of neck with neuropathy of a portion of the cervical cutaneous nerve. 2. The Veteran's service-connected disabilities do not prevent him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for headaches have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.310. 2. The criteria for establishing entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1967 to May 1969. He is a recipient of the Purple Heart Medal. The Board is grateful for the Veteran's service and sacrifice. These matters come before the Board of Veterans' Appeals (Board) on appeal from July and December 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. These matters were previously remanded by the Board in April 2017, February 2019 and October 2020 for further development, which has now been completed. 1. Entitlement to service connection for headaches, to include as secondary to the service-connected shell fragment wound of the right side of neck with neuropathy of a portion of the cervical cutaneous nerve is denied. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection based on continuity, under 38 C.F.R. § 3.303(b)). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) incurrence or aggravation of an injury or disease in service, and (3) a nexus, or link, between the current disability and the disease or injury in service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be established for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Further, a disability that is aggravated by a service-connected disability may be service connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran contends that his migraines are related to his military service and specifically related to the shell wound fragment in his neck. At the Veteran's October 2016 Board hearing, he testified that the headaches associated with his neck were different than his headaches associated with allergies that he also experiences (and experienced before military service). Additionally, the Veteran testified that he began having this different type of headache since his military service. As an initial matter, the Board notes the Veteran has been diagnosed with headaches as shown on the November 2014 VA headache examination. Accordingly, the first criterion, a current disability, for establishing service connection has been met. The question becomes whether the Veteran's headache disability is related to service, or proximately due to or the result of, or aggravated beyond its natural progress by his service-connected shell fragment wound of the right side of neck with neuropathy of a portion of the cervical cutaneous nerve. However, upon review of the record, the Board concludes that the preponderance of the evidence is against finding that the Veteran's headache disability is otherwise related to service, or proximately due to or the result of, or aggravated beyond their natural progression by his service-connected shell fragment wound of the right side of neck with neuropathy of a portion of the cervical cutaneous nerve. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Veteran service treatment records show he reported having frequent or severe headaches on his May 1969 separation report of medical history. However, upon his May 1969 separation examination, there were no neurologic abnormalities. In November 2014, the Veteran underwent VA examination in connection with his claim. The examiner opined that the headaches were less than likely proximately due to or the result of the service-connected shell fragment wound to the neck. The examiner explained that the Veteran has a family history of migraines and noted that during the examination, the Veteran reported that his headaches started when he left the military. The examiner noted that the Veteran's service treatment records indicated that he reported having a history of sinus headaches when he was 12 years old due to dust. The examiner further stated that the shrapnel wounds are on the anterior lateral neck and not in a region one would expect to cause headaches. The examiner further opined that the Veteran's headache disorder clearly and unmistakably preexisted service and was not aggravated beyond its natural progression by the Veteran's in-service injury. The examiner based this opinion on the fact that the Veteran's headaches were not medically treated until 35 years after the Veteran's in-service injury. The examiner further noted that although the Veteran self-medicated with drugs and alcohol after service and described himself as "being in a fog" most of the time, he had been clean and sober for more than 8 years when he started taking the nortriptyline. However, in the Board's April 2017 Board remand, the Board found that a supplemental VA medical opinion was needed as the VA examiner did not consider the Veteran's reports that he has had persistent headaches since his military service. Pursuant to the April 2017 Board remand, the Board determined that an addendum opinion was necessary to address the Veteran's lay contentions that he has had headaches since service. Thus, in June 2017, a supplemental VA medical opinion was obtained. The opinion states that it is less likely than not that the Veteran's headaches are etiologically related to, caused, or aggravated by the shell fragment wound to his neck. The examiner referenced the Veteran's service treatment records which note that the Veteran began having headaches at the age of 12. Additionally, the Veteran reported a family history of migraines, which the examiner found to be consistent with a genetic basis for his migraines. Based on this, the examiner opined that the Veteran's migraines are unrelated to his shell fragment wounds to the neck. Additionally, the June 2017 VA medical opinion stated that there is no evidence that the Veteran is experiencing a distinct type of headache syndrome which is etiologically related to or aggravated by the shell fragment would to his neck. The examiner stated that the shell wound fragment is not in a location that would be expected to cause occipital neuralgia. The examiner concluded that the Veteran's neck pain would not be considered a headache syndrome. Pursuant to the February 2019 Board remand, the Board noted that the question of whether a disability "clearly and unmistakably" existed prior to service is a legal determination rather than a medical one. Following a thorough review of the file, and considering the medical and lay evidence of record, the Board concluded that the Veteran was in sound condition on entry to active duty service and did not have a preexisting migraine disability. Specifically, the Veteran has testified that the headaches he had prior to his military service were related to his allergies and were characteristically different than the headaches he had following his military service. Therefore, the Board at that time determined although medical opinions regarding secondary service connection had been obtained, a new opinion regarding direct service connection which considers the Veteran's lay statements that any headaches he had prior to his service were characteristically different than the headaches he began having immediately following service was necessary. Pursuant to the February 2019 Board remand, the Veteran underwent VA headache examination and an addendum opinion was obtained in November 2019. The examiner diagnosed tension headaches and opined that the condition was less than likely due to the Veteran's time in service. The examiner stated that there is no evidence of the Veteran reporting tension headaches in service based on review of the current medical records. His 1969 ear, nose, and throat (ENT) treatment note states that the Veteran's headaches at that time were due to his allergies that he has had for 12 years. The examiner noted that the Veteran entered service in 1967 and separated from service in 1969. The examiner stated that the Veteran complains that his headache is now from his neck radiating to the back of his head, which is different from the headaches caused by his allergies when he was younger. However, the examiner stated that there is no concrete evidence that the Veteran's headaches are caused by his shrapnel injury which was anterior of his neck. Instead, the Veteran stated his pain in the back of his neck radiates to his back head causing headaches. The Veteran's current headache is not due to his anterior shrapnel wound which was superficial. His 1969 neurology visit reported he has no problem swallowing or breathing, therefore showing he has no complication of his superficial shrapnel wound anterior of his neck area. The medical opinion in 2017 also notes the shell fragment is not in a location that would be expected to cause occipital neuralgia. Pursuant to the October 2020 Board remand, the Board determined that a supplemental opinion was necessary as the November 2019 examiner provided no meaningful discussion of the Veteran's contention that the headaches underlying his claim for service connection were of a different nature than the headaches which he had experienced since childhood secondary to allergies. Thus, an addendum opinion was obtained in October 2020. At that time, the examiner opined that the Veteran's migraine headaches were less than likely related to service. The examiner stated that the Veteran has a self-reported history of headaches dating back to age 12 reportedly in the frontal region and related to dust allergies and sinus problems but which "can lead to migraines." The headache description in the 2014 VA examination was clearly consistent with migraine as he described throbbing pain with nausea, vomiting, photophobia and phonophobia. The examiner noted that the most recent headache description per the November 2019 VA examination lacked nausea, photophobia, and phonophobia but was again described as throbbing and constant. The examiner diagnosed tension-type headaches at that time. The examiner explained that the Veteran probably has both migraine and tension-type headaches, neither of which are at least as likely as not related to his service. The Veteran was more likely than not experiencing migraine headaches dating back to age 12. The fact that allergies or sinus pressure accompanied these headaches (and purportedly were the cause of these headaches) when he was younger does not rule out the diagnosis of migraine, which itself may be triggered by sinus pressure. In fact, it is quite common for migraine headaches associate with nasal congestion or sinus pressure to be misdiagnosed as sinus headache or attributed to "allergies." Subsequent records demonstrating severe, prostrating headaches with typical migrainous symptoms are consistent with the diagnosis of migraine. His migraine headaches began before the service, dating back to age 12 based on his service treatment records; he also has reported a family history of migraines, which is consistent with a genetic basis for his migraines. Thus, his migraines are unrelated to his shell fragment wounds to the neck. The examiner reported that the Veteran's tension-type headaches are first documented in November 2019 and there is no earlier documentation of headaches consistent with tension-headaches. His tension headaches are less than likely incurred in/caused by the service or any injury/illness during service. The examiner stated that the Veteran's service treatment records are silent for tension headaches. The examiner explained that tension-type headaches are a primary headache disorder and no specific causative etiology is needed. The examiner reported that the Veteran has neck pain and numbness due to cervical cutaneous nerve injury caused by shell fragments to the lateral aspect of the right neck. This injury was not associated with headaches or change in previous headache pattern per the service treatment records; is not in a location that would be expected to cause tension headaches, occipital neuralgia or related to cervical degenerative joint disease (which could cause cervicogenic headache). There is no evidence that the Veteran is experiencing a distinct type of headache syndrome (i.e. a unique headache syndrome distinct from his migraines or tension-type headaches) which is etiologically related to or aggravated by the shell fragment would to his neck. He has chronic neck pain related to cervical degenerative arthritis (determined to be unrelated to shell fragments by previous orthopedic examination). His neck pain would not be considered a headache syndrome. Further, the examiner stated that the current evidence of record does not adequately support that his tension-type headaches are related to his cervical spine degenerative disease (i.e. cervicogenic headache). The October 2020 VA examiner's opinion was based on an extensive review of the record, including medical and lay evidence of record, and was supported with a reasoned rationale consistent with the evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (the probative value of a medical opinion comes from sound reasoning). Finally, to the extent that the Veteran believes that his current headache disability is related to service or to his service-connected shell fragment wound of the right side of neck with neuropathy of a portion of the cervical cutaneous nerve, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. In this regard, the etiology of a headache condition is a matter that requires medical training and expertise to determine. Accordingly, his opinion as to the diagnosis or etiology of his headache disability is not competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Thus, the Board finds the opinion of the 2020 VA examiner to be significantly more probative than the Veteran's lay assertions. Based on the lay and medical evidence of record, the Board finds the most probative evidence of record is against a finding that the Veteran's current headache disability is related to service or caused or aggravated by his service-connected shell fragment wound of the right side of neck with neuropathy of a portion of the cervical cutaneous nerve. Accordingly, the claim for service connection for headaches is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board is sympathetic to the Veteran and is grateful for his honorable service. However, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107(a) ("[A] claimant has the responsibility to present and support a claim for benefits...."); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to "present and support a claim for benefits" and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "[w]hether submitted by the claimant or VA... the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). As an initial matter, the Board notes the schedular requirements for a TDIU are met. In this regard, the Veteran is currently service-connected for posttraumatic stress disorder (PTSD), rated as 30 percent disabling from March 29, 2010; diabetes mellitus with diabetic ulcer of the right foot, rated as 20 percent disabling from February 4, 2013; right and left lower extremity peripheral neuropathy associated with the diabetes mellitus, each rated as 20 percent disabling from February 4, 2013; diabetic neuropathy of the left and right lower extremity (femoral nerve), each rated as 20 percent disabling from October 16, 2017; shell fragment wound of the left ring and little finger, rated at 10 percent disabling from May 23, 1969; shell fragment wound scar of the left heel, rated at 10 percent disabling from May 23, 29169; shell fragment wound scar of the right side of the neck with neuropathy of portion of the cervical cutaneous nerve, rated as noncompensable from May 23, 1969 and as 10 percent disabling from October 28, 2004; shell fragment wound scar of the right anterior-medial thigh, rated as 10 percent disabling from October 28, 2004; shell fragment wound, scars of the anterior left chest and left calf, rated as noncompensable from October 28, 2004; bilateral hearing loss, rated as noncompensable from October 18, 2016; and tinnitus, rated as 10 percent from October 18, 2016. Accordingly, the claim turns on whether the Veteran's service-connected disabilities precluded gainful employment. In order to establish entitlement to a TDIU, there must be impairment so severe that it is impossible for the average person to secure and follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. The question in a TDIU claim is whether a veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion but not to his age or to the impairment from nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose, 4 Vet. App. 361. The Veteran submitted his VA Form 21-8940 in February 2014 where he reported he was employed as a clerk, working 40 plus hours per week from August 1970 to April 2010. He stated he earned $53,000 in 2009 which was the most he had earned in one year. He stated that his PTSD, sleep apnea, diabetes, neuropathy of the bilateral lower extremities, left hand and neck disabilities prevented him from securing or following any substantially gainful employment. He reported he last worked full-time on April 1, 2010. In the past 12 months, he reported earning an no income. He also stated that he left his last job because of his disabilities but did not receive disability retirement benefits nor workers compensation benefits. The Veteran remarked that he was tired of working day after day in pain. In addition, he marked that he has not tried to obtain employment since he became too disabled to work and had not had any other education or training before or after he became too disabled to work. His highest level of education completed was four years of high school. In February 2014, the Veteran submitted a private medical opinion from Dr. L.B., who stated that the Veteran is medically disabled from gainful employment. She further stated that his medical conditions include but are not limited to service-connected conditions of sleep apnea, diabetes, PTSD, peripheral neuropathy, chronic joint and bone damage to the left wrist and left foot, cervicalgia and nerve damage in the neck region. During the April 2014 VA PTSD examination, the Veteran reported he retired from the post office on April 1, 2010 after nearly 40 year years as he was no longer able to stand on his feet for extended periods due to problems with his legs and hips. In terms of current employment, the Veteran stated that he often has difficulties standing or sitting for extended periods due to problems with his legs and feet. In addition, at this time he is the primary caretaker for his wife so he cannot work as he helps her to recuperate. The examiner reported that the Veteran experiences mild work impairment related to his temper and a propensity to feel irritable. The examiner summarized the Veteran with occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. Upon the May 2014 VA hand and finger examination, the examiner reported the Veteran's left hand disability did not impact his ability to work. In addition, upon VA peripheral nerve examination at that time, the examiner reported that his diabetic peripheral neuropathy, right leg meralgia and cervical cutaneous nerve impairment did not impact his ability to work. The Veteran underwent VA examinations in October 2017 for his scars, skin conditions, diabetes, peripheral nerve conditions, and hand and finger conditions. At that time, a VA medical opinion regarding the impact of the Veteran's conditions on his employability was obtained. The examiner stated that the Veteran has the chronic service-connected disabilities of scars of the right neck, left upper chest, right medial thigh, left lateral and posterior calf, right neck cutaneous nerve injury, right ulnar neuropathy status-post release but reports that these issues do not cause any significant functional impairment nor render him unable to secure and maintain substantially gainful employment of either physical or sedentary nature. The examiner further noted that the Veteran has the following chronic service-connected disabilities of diabetes, diabetic neuropathy of the lower extremities and ulcers on the right foot attributed to diabetes that impact his function as follows: need to be able to treat blood sugars as needed, inability to walk quickly or easily on uneven ground, need to wear diabetic-type of shoes and not walk barefoot, as these types of activities will likely be limited by and may aggravate his disabilities. The examiner reported that due to the service-connected disabilities/functional limitations, the Veteran's employment in physical-type of work would be limited as above, but sedentary employment, employment in a loosely supervised situation, or employment requiring little interaction with the public would most likely be feasible provided he would be accommodated by being allowed to treat blood sugars as needed. During the October 2017 VA PTSD examination, the Veteran reported that he is able to care for his own personal finances and other important activities of daily living. The examiner stated that his PTSD symptoms caused occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The examiner further remarked that the Veteran's PTSD would lead the Veteran to have a mildly lower tolerance for stress and only mild work impairment would be present if employed. Upon review of the record, the Board finds that while the Veteran meets the schedular criteria for a TDIU rating, the preponderance of the competent, credible, and probative evidence is against a finding that he is unemployable due solely to his service-connected disabilities. While the Veteran submitted his VA Form 21-8940 for several service-connected disabilities, he also included sleep apnea which is not a disability for which the Veteran is service-connected. Moreover, although the Veteran has reported he is not capable of sitting, standing, or walking for long periods of time, he has reported completing four years of high school, which is conducive to sedentary employment. Further, VA examinations of record show that the Veteran's service-connected disabilities do not preclude gainful employment. In this regard, the October 2017 VA individual unemployability examiner noted that sedentary employment, employment in a loosely supervised situation, or employment requiring little interaction with the public would most likely be feasible provided he would be accommodated by being allowed to treat blood sugars as needed. Although the 2014 private physician provided a positive opinion regarding his inability to obtain gainful employment, her opinion was based on the Veteran's several service-connected and nonservice-connected disabilities. (Continued on the next page) In sum, the most probative evidence shows that the Veteran was not rendered incapable of performing the physical and mental acts required by employment due to service-connected disabilities. See Van Hoose, 4 Vet. App. at 363. Accordingly, TDIU is not warranted. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Medina, 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.