Citation Nr: 21041212 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 12-23 318 DATE: July 8, 2021 ORDER Entitlement to service connection for undiagnosed sleep disturbances is granted. Entitlement to an initial disability rating of 30 percent, but no higher, for irritable bowel syndrome (IBS) prior to August 29, 2019 is granted. Entitlement to a disability rating greater than 30 percent for IBS from August 29, 2019 is denied. Entitlement to an initial disability rating greater than 20 percent for chronic interstitial cystitis and overactive bladder is denied. Entitlement to an initial disability rating greater than 40 percent for myalgia and paresthesias, to include on an extraschedular basis, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. REMANDED Entitlement to an initial compensable rating for tension headaches is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his sleep disturbances manifested after his tour in the Southwest Asia theater of operations, cannot be attributed to any known clinical diagnosis after testing, and existed at least intermittently over a 6-month period. 2. Prior to August 29, 2019, the Veteran's service-connected IBS manifested by more or less constant abdominal stress with alternating constipation and diarrhea. 3. From August 29, 2019, the Veteran has been in receipt of the maximum rating for IBS. 4. The Veteran's chronic interstitial cystitis and overactive bladder were manifested by requiring daytime interval voiding between one and two hours, and nighttime voiding three to four times each night. 5. The Veteran's myalgia and paresthesias has resulted in widespread musculoskeletal pain and tender points, with associated fatigue, sleep disturbance, paresthesias, headaches, and IBS that has been constant and refractory to therapy; the Rating Schedule fully contemplates the Veteran's myalgia and paresthesias symptoms which do not create an unusual disability picture that falls outside of the Rating Schedule. 6. The preponderance of the competent and probative evidence of record does not demonstrate that the Veteran was unable to obtain or maintain employment solely due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for undiagnosed sleep disturbances have been met. 38 U.S.C. §§ 1110, 1131, 1117, 1118 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2020). 2. The criteria for an initial rating of 30 percent, but no higher, for IBS prior to August 29, 2019 have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2018); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 7319 (2020). 3. The criteria for a disability rating greater than 30 percent for IBS from August 29, 2019 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2018); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, DC 7319 (2020). 4. The criteria for an initial disability rating greater than 20 percent for chronic interstitial cystitis and overactive bladder have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.14, 4.16, 4.115a, 4.115b, DCs 8875-7512 (2020). 5. The criteria for an initial disability rating greater than 40 percent for myalgia and paresthesias, including on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.71a, DCs 8850-5025 (2020). 6. The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1988 to December 1991 with additional National Guard service. He appealed a November 2018 Board of Veterans' Appeals (Board) decision denying entitlement to an initial compensable rating for tension headaches. In a May 2020 Memorandum Decision, the Court of Appeals for Veterans Claims (Court) vacated the Board's decision and remanded the appeal for action consistent with the Memorandum Decision. The claim is now back before the Board. Also currently before the Board are the issues previously remanded in a June 2019 Board decision, including entitlement to service connection for a sleep disturbances, entitlement to TDIU, and increased initial ratings greater than 40 percent for myalgia and paresthesias, 20 percent for cystitis, and 10 percent for IBS. In December 2019, pursuant to development from the June 2019 Board remand, the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) increased the Veteran's IBS rating to 30 percent, effective August 29, 2019. Service Connection A Veteran is entitled to VA disability compensation if there is a current disability resulting from personal injury or disease incurred in, or aggravated by, active service. 38 U.S.C. §§ 1110, 1131 (2012). Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. See Shedden v. Principi, 381 F.3d 1163, 1167 (2004). Service connection may also be warranted for a Persian Gulf War veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021. See 38 C.F.R. § 3.317(a). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multisymptom illness (MUCMI); and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. An undiagnosed illness is defined as a condition that by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis. 38 C.F.R. § 3.317(a)(1)(ii). Signs or symptoms that may be a manifestation of an undiagnosed illness include fatigue and sleep disturbances. 38 C.F.R. § 3.317(b). Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. 38 C.F.R. § 3.317(a)(4). The Veteran is a Persian Gulf veteran who served in the Southwest Asia theater of operations. See DD Form 214; see also DA Form 2-1. The record contains evidence of sleep disturbances with resulting fatigue without discernable origin or diagnosis. See, e.g., February 2019 VA examination reports. Therefore, if the record establishes that the Veteran's sleep disturbances (1) manifested during active duty or to a degree of 10 percent or more not later than December 31, 2021, (2) cannot be attributed to any known clinical diagnosis after testing, and (3) existed for 6 months or more, he is entitled to service connection for those symptoms. Here, the Veteran consistently contends his sleep disturbances started in the "mid to late 1990s." See, e.g., August 2017 VA examination report; see also October 2009 VA Form 21-526. In September 2015, a full night polysomnogram was conducted where the Veteran was observed to have "persistent coughing, multiple bathroom breaks," and had "multiple wake after sleep onset periods, resulting in reduced sleep efficiency." See December 2015 VA treatment records. There, the Veteran was not found to have sleep apnea and the sleep technician suspected the Veteran had restless leg syndrome but did not diagnose the Veteran with any sleep disorder. Id. The record reflects the Veteran has consistently restated these somnolence and sleep disturbance symptoms in the record. See, e.g., February 2019 VA examination reports. Because sleep disturbance is a condition capable of lay observation, the Veteran is competent to testify to his symptoms, history, and the actual existence of the condition. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). As such, the Board finds the Veteran's signs and symptoms of sleep disturbances have existed for 6 months or more. In February 2019, the Veteran was provided an examination to assess the nature and etiology of his sleep disturbances. There, the Veteran stated he has difficulty sleeping as "he will be woken up at night because he has to go to the bathroom," "he worries that he will be woken up," and "he will get sharp pains at night." See February 2019 VA examination report. The VA psychiatrist concluded the Veteran's symptoms did not meet the diagnostic criteria for an insomnia disorder, or any mental health disorder, under the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). See February 2019 VA examination report; see also July 2019 addendum opinion. Further, a VA examiner found no diagnosis for the Veteran's fatigue and noted the Veteran "suffers from insomnia, having difficulty falling asleep and awakening an average of five or six times a night, usually to urinate." Id. The VA examiner found the Veteran's chronic feeling of 'fatigue' may be due to his insomnia and/or underlying depression." Id. However, as noted above, a VA psychiatrist found the Veteran's symptoms did not meet the criteria for any acquired psychiatric disorder. Accordingly, the Board finds the Veteran's current sleep disturbances with resulting fatigue cannot be attributed to any known clinical diagnosis after testing. Finally, the Board finds that the Veteran's qualifying chronic disability manifested to a degree of 10 percent or more as the record reflects the Veteran suffers from persistent daytime hypersomnolence which represents a disability manifested by a rating greater than 10 percent. See 38 C.F.R. § 4.97, DC 6847. Additionally, under the General Rating Formula for Mental Disorders, for which an insomnia disorder would be rated, the record reflects the Veteran's symptoms represent a disability manifested by a rating of at least 10 percent. See 38 C.F.R. § 4.130. As a result, the Board finds that the Veteran's symptoms of sleep disturbances manifested to a degree of 10 percent or more following active service in the Southwest Asia theater of operations and by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. Thus, the Veteran's symptoms constitute an undiagnosed illness and a qualifying chronic disability under 38 C.F.R. § 3.317. Accordingly, the Board grants entitlement to service connection for sleep disturbances with resultant fatigue. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. When considering the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. IBS Currently, the Veteran's service-connected IBS is rated at 10 percent disabling prior to August 29, 2019 and 30 percent thereafter. See December 2019 rating decision. The Veteran contends his IBS should be rated at 30 percent for the entire appeal period. See January 2020 Representative correspondence. IBS is rated under the criteria for irritable colon syndrome at 38 C.F.R. § 4.114, DC 7319. Under DC 7319, mild irritable colon syndrome, with disturbances of bowel function with occasional episodes of abdominal distress, warrants a noncompensable (0 percent) rating. Moderate irritable colon syndrome, with frequent episodes of bowel disturbance with abdominal distress, warrants a 10 percent rating. Severe irritable colon syndrome, with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress, warrants a 30 percent rating. 38 C.F.R. § 4.114, DC 7319. The AOJ increased the Veteran's IBS rating to 30 percent effective August 29, 2019 based on the findings from the August 2019 VA examination report. The VA examiner found the Veteran had frequent episodes of bowel disturbance with abdominal distress, seven or more exacerbations of IBS in a year, and he endured cycles of constipation for "two to three days" with alternating diarrhea. See August 2019 VA examination report. It was noted the Veteran suffered from "nausea with certain food" and general abdominal distention with bloating and cramping. Id. The Board finds it likely the Veteran's symptoms were present prior to the August 2019 VA examination. At the examination, the Veteran reported his cramping and cycling between constipation and loose stools has occurred "for the past ten years." Id. This is supported by the record. For example, March 2015 Inland Empire Gastroenterology records note the Veteran complained of "years of abdominal pain and constipation" with "cramps, bloating, and gas." At a January 2016 VA examination, the Veteran stated he feels constipated "once per week" and has abdominal cramps "intermittently every day." Finally, August 2016 Rancho Family Medical records note the Veteran's IBS medication "is not helping" and every week he goes three days without a bowel movement. As such, the Board finds the record reflects the Veteran's symptoms include more or less constant abdominal distress. See, e.g., December 2010 Rancho Family Medical records. Thus, the Board finds that the Veteran's IBS more closely approximates the criteria for a 30 percent rating the entire appeal period, which is the maximum rating under DC 7319. As the Veteran's symptoms have remained constant at 30 percent levels for his IBS, staged ratings are not warranted. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The Veteran is now in receipt of the maximum schedular rating for IBS for the entire period on appeal. As such, a higher schedular rating is not warrant at any point during the period on appeal. See 38 C.F.R. § 4.113. Additionally, 38 C.F.R. § 4.114 indicates that ratings under DCs 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive, will not be combined with each other. Rather, a single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture. DC 7319 encompasses all of the Veteran's symptoms of abdominal distress, constipation, and diarrhea; thus, he is not entitled to a higher or separate rating under any other potentially applicable diagnostic code. As such, the Board grants entitlement to an initial rating of 30 percent, but no higher, for IBS prior to August 29, 2019 and denies a rating greater than 30 percent from August 29, 2019. Chronic Interstitial Cystitis and Overactive Bladder The Veteran's service-connected chronic interstitial cystitis and overactive bladder is rated under DCs 8875-7512. Hyphenated codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. See 38 C.F.R. § 4.27. Here, DC 8875 references an undiagnosed condition of the genitourinary system and the actual disability rating for cystitis and overactive bladder are rated under DC 7512, for chronic interstitial cystitis, which notes to rate the condition under voiding dysfunction. See 38 C.F.R. § 4.115b, DC 7512. The criteria for rating voiding dysfunction require the condition to be rated as either urine leakage, urinary frequency, or obstructed voiding. See 38 C.F.R. § 4.115a. For urine leakage, requiring the use of an appliance or the wearing of absorbent materials which must be changed: less than two times per day warrants a 20 percent rating; 2 to 4 times per day warrants a 40 percent rating, and more than 4 times a day warrants a 60 percent rating. See 38 C.F.R. § 4.115b. Neither the medical nor lay evidence of record suggests the Veteran's symptoms include urine leakage or the use of an appliance or absorbent materials. See, e.g., July 2010 VA examination report; January 2016 VA examination report; August 2019 VA examination report. As such, the Veteran is not entitled to a rating greater than 20 percent under the criteria for urine leakage. For obstructed voiding, a 30 percent rating is warranted for urinary retention requiring intermittent or continuous catheterization. See 38 C.F.R. § 4.115b. Again, the record does not reflect the Veteran requires any catheterization, so this criteria also does not apply. For urinary frequency, a 10 percent disability rating is warranted for daytime voiding interval between two and three hours or awakening to void two times per night; a 20 percent disability rating is warranted for daytime voiding interval between one and two hours or awakening to void three or four times per night; and a 40 percent disability rating is warranted for daytime voiding interval less than one hour or awakening to void five or more times per night. Id. At the July 2010 VA examination, the Veteran noted he used the restroom every "one to two hours" during the day and once at night. The severest symptom during the appeal period appears to be the Veteran's constant bladder pain, caused by his interstitial cystitis, that starts as a "dull ache" and increases to a sharp pain when he needs to void and continues until he is able to relieve himself. See, e.g., July 2010 and January 2016 VA examination reports. The Veteran states this bladder pain wakes him up at night. Id. In January 2016, the Veteran reported to void "about every two to three hours during the day" and "about three to four times" at night. See January 2016 VA examination report. The Veteran reported similar symptoms at the August 2019 VA examination. There, the VA examiner found the Veteran voided "between one and two hours" during the day and "three to four times" at night with hesitant voiding and a weak, slow, and decreased force of stream. Based on the various VA examinations, the Veteran is not entitled to a rating greater than 20 percent as his daytime voiding intervals are not less than one hour and he does not awaken to void five or more times each night. The totality of the Veteran's medical records and lay statements also do not reflect his symptoms more closely approximate the criteria for a higher rating. December 2015 VA treatment records note the Veteran woke up during a sleep study multiple times to use the restroom and sought treatment for "constant pain, urinary urgency, and not emptying [his] bladder." At the August 2019 VA examination, the Veteran stated he voided "every hour," which the VA examiner noted was not less than every hour, but "between one and two hours." The record also reflects the Veteran sporadically reported more severe voiding frequency. For example, January 2011 VA treatment records reflect the Veteran reported both daytime and nighttime voiding frequency of "seven to eight times." In May 2019, during his plea with VA that he could not travel a long distance to attend VA examinations, the Veteran stated he had "to urinate constantly, every hour when [he is] awake and...five to six times at night." See May 2019 VA treatment records. However, these reported instances were infrequent and more often the Veteran reported symptoms approximating the 20 percent criteria. See July 2010, January 2016, and August 2019 VA examination reports. For example, May 2010 VA treatment records note the Veteran reported to "get up usually one time at night to go to the bathroom." The Board notes the Veteran often stated he wakes up at night due to bladder pain and "gets up to void since he's awake," which is different from waking up with the purpose or need to void, the criteria for rating voiding dysfunction under urinary frequency. See January 2016 VA examination report. Thus, based on the totality of the lay and medical evidence of record, the Board finds the Veteran is not entitled to a rating greater than 20 percent during the appeal period as the Veteran does not have continual urine leakage, obstructed voiding, or voiding intervals of less than one hour during the day or five or more times at night. Accordingly, the Board finds that an initial rating greater than 20 percent for chronic interstitial cystitis and overactive bladder is not warranted. Myalgia and paresthesias The Veteran's myalgia and paresthesias of unclear etiology is rated at 40 percent disabling under DCs 8850-5025. DC 8850 references undiagnosed conditions, such as the Veteran's, regarding musculoskeletal disease. The most analogous diagnostic code for the Veteran's symptoms of chronic musculoskeletal pain, cramps, and paresthesias is DC 5025 for fibromyalgia. The Veteran is already in receipt of the maximum disability rating, 40 percent, under DC 5025 for the entire appeal period but the June 2019 Board Remand notes the Veteran requested a higher rating, to include extraschedular consideration. The Board is required to address whether referral for extraschedular consideration is warranted when the issue is argued by the Veteran. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). An extraschedular disability rating may be assigned where the evidence shows the disability under consideration presents an exceptional case that renders inadequate the available schedular rating criteria. However, VA's duty to maximize benefits requires it to first exhaust all schedular alternatives for rating a disability before the extraschedular analysis is triggered. See Morgan v. Wilkie, 31 Vet. App. 162, 168 (2019). These schedular rating alternatives, such as secondary service connection, analogous ratings, the requirement to assign a higher schedular rating if a veteran's disability more nearly approximates the higher rating, the requirement that VA resolve doubt in favor of claimants, and the ability to rate a single disability under multiple diagnostic codes without pyramiding, are critical components of the duty to maximize benefits well before the Board reaches an extraschedular analysis. See Morgan, 31 Vet. App. at 164. Once all schedular alternatives are exhausted, the Board applies a sequential three-step to determine whether a case should be referred for extraschedular consideration. See Thun v. Peake, 22 Vet. App. 111 (2008). Step one is to determine whether the schedular rating adequately contemplates the Veteran's disability picture. If the criteria reasonably describe the Veteran's disability level and symptomatology, then his disability picture is contemplated by the Rating Schedule. The assigned schedular evaluation would, therefore, be adequate, and an extraschedular rating would not be required. However, if there is evidence the Veteran's service-connected disability presents such an "exceptional or unusual disability picture" that the schedular criteria do not contemplate the Veteran's level of disability and symptomatology, the schedular criteria are inadequate. Id. In order to determine whether a disability is "exceptional or unusual," there "must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability." Id. If the rating criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the rating schedule and the schedular evaluation is adequate. See Long v. Wilkie, 33 Vet. App. 167, 171 (2020). However, if step one is met, then step two is to determine whether the Veteran's disability picture is exceptional with related factors such as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular criteria. Id. Under DC 5025, a 40 percent rating is warranted for myalgia with widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbance, stiffness, paresthesias, headache, irritable bowel symptoms, depression, anxiety, or Raynaud's-like symptoms that are constant, or nearly so, and refractory to therapy. See 38 C.F.R. § 4.71A. Based on the foregoing, and in conjunction with the medical and lay evidence of record, the Board finds that the rating criteria reasonably describe the Veteran's service-connected myalgia and paresthesias and its symptomatology. VA and private treatment records during the appeal period reflect the Veteran suffers from and has been treated for chronic and constant muscle pain in his low back, bilateral upper and lower extremities, and cervical spine. See, e.g. January 2016 VA examination ("aches over the muscles of the forearms...along the lumbar back and over both quadriceps and hamstrings...feel like cramps and tend to move up and down the limbs" "aches with palpation"); November 2017 VA examination report ("constant dull to sharp muscle pain in multiple areas: mid back, buttocks, trapezius, calves, thighs, and forearms... 'ants crawling' sensation over the forehead, cheeks, fingertips and toes. No other radiating pain to the extremities, numbness, weakness or loss of bowel or bladder control."); January 2019 Sonya Health Mart & Chiropractic records. For example, June 2012 VA treatment records note the Veteran "has joint pain throughout [his] body" and July 2013 VA treatment records note the Veteran had "constant pain all over his body." January 2019 Sonya Health Mart & Chiropractic records note the Veteran had "spasm and tenderness palpable" at "18/18 fibromyalgia points." At his January 2019 chiropractic examination, the Veteran also noted to suffer from symptoms of tingling and weakness of the upper and lower extremities, numbness, dizziness, malaise, fever and sweats, in addition to problems with bowel or bladder function and vision or hearing loss. Id. Finally, the records also note the Veteran is treated for IBS, cystitis and overactive bladder, costochondritis, sleep disturbance with resulting fatigue, and headaches- all of which are now separately service-connected disabilities and also symptoms contained within DC 5025. The records show that these reported symptoms persist essentially unabated. See November 2017 VA examination report (Veteran stated he has "the same issues...and there have been no changes with regards to his symptoms"). Overall, the symptoms and impairment associated with the Veteran's myalgia and paresthesias include chronic and constant muscle tightness and pain in multiple joints with associated paresthesias, sleep disturbance with fatigue, stiffness, headaches, IBS, and weakness, which is fully addressed by the criteria for a 40 percent disability rating under DC 5025. The Board finds the Veteran is not entitled to referral for an extraschedular rating because the evidence does not present such an exceptional disability picture that it renders the available schedular evaluations for myalgia and paresthesias inadequate. See Thun, 22 Vet. App. at 115-19; Long, 33 Vet. App. at 171. Therefore, the threshold factor for extraschedular consideration under step one of Thun has not been met, and the Board need not reach the second step of the Thun analysis. As the disability picture is contemplated by the Rating Schedule, the assigned schedular rating is adequate, extraschedular consideration is not warranted under 38 C.F.R. § 3.321(b)(1). In light of the above, the Board finds that remand for referral for consideration of an extraschedular rating based on the aforementioned symptoms is not warranted. See 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. 111; Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996). Accordingly, the Board finds that the criteria for an initial disability rating greater than 40 percent for myalgia and paresthesias, to include on an extraschedular basis, have not been met. See Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. TDIU The issue of entitlement to TDIU has been raised in this case and will be considered by the Board for the entire appeal period. See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009); see also Harper v. Wilkie, 30 Vet. App. 356, 361 (2018). Total disability will be considered to exist where there presently is any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. See 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran contends his service-connected "cystitis, IBS, and asthma" render him unable to obtain and maintain a substantially gainful occupation. See June 2018 VA Form 9. The Veteran has met the 38 C.F.R. § 4.16(a) threshold requirement for entitlement to TDIU on a schedular basis as his combined disability rating is 80 percent prior to August 13, 2015 and 70 percent thereafter with myalgia and paresthesias rated at 40 percent throughout the appeal period. Therefore, the narrow issue before the Board is whether the Veteran has been unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. In determining whether a veteran can secure, follow, and maintain a substantially gainful occupation, the Board must consider: (1) the Veteran's occupational history, education, skill, and training; (2) whether the Veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the Veteran has the mental ability to perform the activities required by the occupation at issue. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). To determine whether TDIU is warranted, the Board must conduct a holistic and individualized assessment of the veteran. See Withers v. Wilkie, 30 Vet. App. 139, 142 (2018). Ultimately, the responsibility for making a TDIU determination is placed on the adjudicator and not a medical clinician. See Geib v. Shinseki, 733 F.3d 1350, 1354 (2013). The record reflects the Veteran worked fulltime as a U.S. border patrol agent for the entire appeal period. In a January 2016 VA examination, the Veteran noted he worked for Border Patrol "for almost twenty years full time" and continues to be employed. The record reflects the "Veteran has not [physically] been to work since January 2013 and is currently on paid administrative leave as border patrol, which is unrelated to his current claim(s)." See September 2019 VA IBS examination report. At the July 2019 VA psychiatric examination, the Veteran noted he "works two to three jobs" and stated his paid administrative leave and ability to stay home was due to his report of "racial profiling against Hispanics" as a whistle blower. The July 2019 VA psychiatrist noted the Veteran "stays at home and is on paid administrative leave" which "is something that he likes." In July 2019, the AOJ provided the Veteran with VA Form 21-8940, the application for TDIU, to better understand his work history and potential unemployment. However, to date, the Veteran has not responded to the AOJ's request. As such, there is no evidence of record the Veteran does not currently maintain substantially gainful employment and the Board denies the Veteran's claim to TDIU. REASONS FOR REMAND Tension Headaches The May 2020 Memorandum Decision noted the Veteran's tension headache symptoms were dissimilar from those listed under his current DC 8100, for migraine headaches, specifically that he suffers from daily symptoms of chronic pain, nausea, and dizziness. See May 2020 Memorandum Decision. In a June 2021 correspondence the Veteran noted his tension headaches flared-up more frequently than before and require him to "sit or lie down." He also reported to "always have dizziness and nausea with [his] headaches." See June 2021 Veteran correspondence. At the Veteran's last VA examination in January 2016, the examiner noted the Veteran did not suffer from nausea, vomiting, or light sensitivity, all symptoms the Veteran is now reporting. Thus, as the Veteran's symptoms appear significantly worse, a new examination is required. See Snuffer v. Gober, 10 Vet. App. 400, 403-04 (1997). The matters are REMANDED for the following action: 1. Obtain any outstanding and updated relevant VA and/or private treatment records and associate the same with the claims file. 2. Thereafter, schedule the Veteran for a VA examination to determine the severity of his service-connected tension headaches. The VA examiner is to address the symptoms reported by the Veteran in his June 2021 correspondence. All pertinent symptomatology and findings necessary to rate the disability, including the frequency of the Veteran's flareups reported in his June 2021 correspondence, must be reported in detail. (Continued on the next page) 3. After the above has been completed to the extent possible, readjudicate the claim. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bona, 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.