Citation Nr: 22017160 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 17-46 860 DATE: March 24, 2022 ORDER Entitlement to service connection for headaches is granted. Entitlement to nonservice-connected pension benefits is denied. REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for a left lower extremity disability is remanded. FINDINGS OF FACT 1. The Veteran's tension headaches are proximately due to his service-connected psychiatric disability. 2. The evidence is strongly against finding that the Veteran is permanently and totally disabled due to nonservice-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for headaches as secondary to a service-connected disease or injury are met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for basic eligibility for nonservice-connected disability pension benefits are not met. 38 U.S.C. § 1521; 38 C.F.R. §§ 3.3, 3.6, 3.340, 4.16, 4.17. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1990 to February 1993. These matters come to the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision which, in pertinent part, denied entitlement to service connection for bilateral hearing loss, a psychiatric disorder, a sleep disorder, a left lower extremity disability, entitlement to a total disability rating based upon individual unemployability (TDIU), and entitlement to nonservice-connected pension benefits. These matters also come to the Board from an October 2016 rating decision which, in pertinent part, denied entitlement to service connection for headaches and a lumbar spine disability. In a November 2020 decision, the Board denied entitlement to service connection for bilateral hearing loss and entitlement to a TDIU and remanded the claims of entitlement to service connection for a psychiatric disorder, a sleep disorder, headaches, and a left lower extremity disability, and entitlement to nonservice-connected pension benefits. In a May 2021 rating decision, VA granted service connection for unspecified trauma and stressor related disorder with sleep impairment. As this represents a maximum grant of the benefit sought on appeal with respect to the claims of entitlement to service connection for a psychiatric disability and a sleep disorder, these claims are no longer before the Board. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The U.S. Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of a "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With a chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. 1. Entitlement to service connection for headaches. The Veteran contends that service connection is warranted for headaches. Specifically, he contends that his headaches are secondary to his service-connected tinnitus. Although the evidence of record does not suggest that the Veteran's headaches are secondary to his service-connected tinnitus, VA must consider and adjudicate all theories of entitlement reasonably raised by the record. Robinson v. Peake, 21 Vet. App. 545, 552-553 (2008). A March 2016 VA headache examination report shows that the Veteran has a current diagnosis of tension headaches. During the examination, the Veteran reported that anxiety was frequently present with his headaches, and upon examination, the Veteran was anxious with a mild headache. The examiner indicated that the Veteran had tension headaches that were at least as likely as not related to anxiety. A January 2017 VA addendum opinion reflects that the examiner noted the findings of the March 2016 VA examiner and found that the stress and anxiety referred to in multiple notes, along with this low back pain, were a more likely cause of his headaches than his tinnitus. Subsequent to the Board's remand of this claim in November 2020 for further development, VA granted service connection for unspecified trauma and stressor related disorder with sleep impairment, with anxiety as a listed symptom of his psychiatric disability. See August 2016 VA mental disorders examination report. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current tension headaches are proximately due to anxiety as a symptom of his service-connected psychiatric disability. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for headaches is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to nonservice-connected pension benefits. The Veteran asserts that he is totally disabled and unable to work due to his lumbar spine, lower left extremity, and bilateral hearing loss disabilities, and should be entitled to nonservice-connected pension benefits. VA nonservice-connected pension benefits are payable to a veteran who is age 65 or older or is permanently and totally disabled from nonservice-connected disability or disabilities, which is not the result of willful misconduct, but only where the veteran has the requisite active wartime service. 38 U.S.C. § 1521(a); 38 C.F.R. §§ 3.3, 3.314(b). In the present case, the Veteran meets the service requirements because he served during the Persian Gulf War era. See 38 C.F.R. § 3.2. However, the Veteran is not 65 years old or older. Thus, the inquiry that the Board must address is whether the Veteran is permanently and totally disabled from nonservice-connected disability or disabilities. Permanent and total disability exists if the veteran is a patient in a nursing home for long-term care because of disability; is disabled as determined by the Commissioner of Social Security for purposes of any benefits administered by the Commissioner; is unemployable as the result of disability reasonably certain to continue throughout the life of the person; or is suffering from any disability which is sufficient to render it impossible for the average person to follow a substantially gainful occupation, but only if it is reasonably certain that such disability will continue throughout the life of the person or any disease or disorder determined by VA to be of such a nature or extent as to justify a determination that persons suffering from that disease or disorder are permanently and totally disabled. 38 C.F.R. § 3.3(a)(3)(B). For VA pension purposes, all veterans who are basically eligible and who are unable to secure and follow a substantially gainful occupation by reason of disabilities which are likely to be permanent shall be rated as permanently and totally disabled. 38 C.F.R. § 4.17. 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(a). Permanence of a total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. The permanent loss or loss of use of both hands or of both feet, or of one hand and one foot, or of the sight of both eyes, or becoming permanently helpless or bedridden constitutes permanent total disability. Disabilities and injuries of long standing that are actually totally incapacitating will be regarded as permanently and totally disabling when the probability of permanent improvement under treatment is remote. Permanent total disability ratings may not be granted as a result of any incapacity from acute infectious disease, accident, or injury, unless there is present one of the recognized combinations or permanent loss of use of extremities or sight, or the person is in the strict sense permanently helpless or bedridden, or when it is reasonably certain that a subsidence of the acute or temporary symptoms will be followed by irreducible totality of disability way of residuals. The age of the disabled person may be considered in determining permanence. 38 C.F.R. § 3.340(b). For the purpose of pension, the permanence of the percentage requirements of §4.16 is a requisite. 38 C.F.R. § 4.17. Generally, 38 C.F.R. § 4.16(a), provides that total disability ratings 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 disability provided that, if there is only one such disability, this disability is ratable at 60 percent or more; and that, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. When the percentage requirements are met, and the disabilities involved are of a permanent nature, a rating of permanent and total disability will be assigned if the veteran is found to be unable to secure and follow substantially gainful employment by reason of such disability. 38 C.F.R. § 4.17. Prior employment or unemployment status is immaterial if, in the judgment of the rating board, the veteran's disabilities render him or her unemployable. Id. Marginal employment (for example, as a self-employed farmer or other person, while employed in his or her own business, or at odd jobs or while employed at less than half the usual remuneration) will not be considered incompatible with a determination of unemployability, if the restriction as to securing or retaining better employment, is due to disability. Moreover, claims of all veterans who fail to meet the percentage standards but who meet the basic entitlement criteria and are unemployable, will be referred by the rating board to the Veterans Service Center Manager or the Pension Management Center Manager under 38 C.F.R. § 3.321(b)(2). The evidence of record does not establish that the Veteran has been a patient in a nursing home or has been deemed disabled by the Commissioner of Social Security at any time during the relevant appeal period. Review of the medical records reveal treatment for lumbar spine and left lower extremity pain. A March 2016 VA examination report reflects that the Veteran reported stiffness in his lower back with radiation of pain, numbness, and tingling into his left lower extremity. The Veteran reported that he was employed in an administrative position, and while he sat most of the day, he could change positions frequently. A June 2013 VA audiologic examination reflects that the Veteran does not have a hearing loss disability for VA purposes. The evidence of record reflects that the Veteran has four years of college and, during an August 2016 VA psychiatric examination, the Veteran reported he had a master's degree in public health with prior work experience at a mortgage company. Employment records dated in September 2019 reflect the Veteran was employed from May 2015 to May 2019 as a legal administrative specialist but was discharged for unsatisfactory work performance under new quality standards. The evidence does not demonstrate that the Veteran's work performance was due to a nonservice-connected disability. While the Veteran has several disabilities which may cause difficulties with employment, such that he may need to change position as necessary, the evidence does not demonstrate that his nonservice-connected disabilities render him unable to secure or follow a substantially gainful occupation. Rather, the evidence of record indicates that the Veteran has maintained gainful employment for at least part of the period at issue. Accordingly, the Board finds that the evidence is against finding that the Veteran has nonservice-connected disabilities that are permanent and total, which prevent him from securing and following a substantially gainful occupation. The Veteran's claim for nonservice-connected pension benefits is denied. REASONS FOR REMAND 1. Entitlement to service connection for a lumbar spine disability is remanded. As discussed above, an October 2016 rating decision denied entitlement to service connection for headaches and a lumbar spine disability. The Veteran filed a timely notice of disagreement in October 2016, which was acknowledged in a December 2016 VA letter. While VA issued a statement of the case (SOC) on the issue of entitlement to service connection for headaches in February 2017, VA has not yet issued a SOC on the issue of entitlement to service connection for a lumbar spine disability. Remand is required for the issuance of an SOC. Manlincon v. West, 12 Vet. App. 238 (1999). 2. Entitlement to service connection for a left lower extremity disability is remanded. VA obtained a VA examination and medical opinion in March 2021. On examination, the examiner diagnosed left gastrocnemius atrophy consistent with lumbar spine imaging and subjective history of left lower extremity radiculopathy. The examiner indicated that based on the Veteran's medical history, along with imaging studies, the Veteran's left lower extremity was likely radiculopathy, which would be best addressed on a lumbosacral spine or peripheral nerve examination. Because a decision on the remanded issue of entitlement to service connection for a lumbar spine disability could significantly impact a decision on the issue of entitlement to service connection for a left lower extremity disability, the issues are inextricably intertwined. A remand of the claim of service connection for a left lower extremity disability is required. The matters are REMANDED for the following actions: 1. With respect to the claim of service connection for a lumbar spine disability, issue a statement of the case (SOC) and notify the Veteran and his representative of his appellate rights. The Veteran and his representative should be informed of the requirements to perfect an appeal with respect to this issue. This issue should only be returned to the Board if the Veteran perfects an appeal. If the Veteran perfects an appeal, the AOJ should ensure that all indicated development is completed before the case is returned to the Board. 2. After completing the above, and any other development as may be indicated, the Veteran's claim of service connection for a left lower extremity disability should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. CLAIRE M. DAVIDOSKI Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Owen, 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.