Citation Nr: 22017482 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 13-16 899 DATE: March 25, 2022 ORDER Entitlement to service connection for migraine headaches is granted. Entitlement to a total disability rating due to individual unemployability (TDIU) is granted. REMANDED Entitlement to service connection for irritable bowel syndrome to include as a qualifying chronic disability under 38 C.F.R. § 3.317. Entitlement to a service connection disability manifested by joint pain, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. Entitlement to service connection for a disability manifested by muscle cramps, to include as qualifying chronic disability under 38 C.F.R. § 3.317. Entitlement to service connection for a skin disability, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. Entitlement to service connection for a disability manifested my memory loss, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. Entitlement to service connection for a bilateral hand disability, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. Entitlement to service connection for a cervical spine disability, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. Entitlement to service connection for an undiagnosed illness, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. FINDINGS OF FACT 1. The Veteran's headache disability was incurred in-service. 2. The Veteran's service-connected disabilities have rendered him unemployable. CONCLUSIONS OF LAW 1. The criteria for service connection for headaches have been met. 38 U.S.C. §§ 1110, 5107, 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from November 1978 to July 1985 and from February 1, 1991 to October 15, 1991. 1. Entitlement to service connection for migraine headaches At the onset, the Board notes that there is no dispute that the Veteran has been diagnosed with migraine headaches as noted in a December 2020 VA treatment note. Nor is there any dispute that the Veteran was diagnosed with migraine headaches in service as noted in a November 1999 service treatment record which refers to a September 1999 Line of Duty Report. The only question remaining is a matter of nexus. Turning to the remaining issue of whether the Veteran's complaints of headaches in service are related to his current diagnosis, i.e. a nexus, the Board notes that the Veteran's medical treatment records document a continued struggle with migraine headaches since the diagnosis in service as noted both in August 26, 2004, service treatment note and a November 2011 VA treatment note, wherein a clinician noted that he experienced these headaches since care began with the clinician in 2004. In sum, there is ample evidence that the Veteran has been suffering from the symptoms of headaches starting in service and continuing to the present day. In weighing the probative value of the Veteran's statement, the Board notes that the Veteran is competent to assert the presence of symptoms subject to lay observation, such as headaches. The Veteran is also highly credible in this regard as his complaints are corroborated by his medical treatment record in the claims file. Given the fact that the Veteran was diagnosed with migraine headaches in a November 1999 service treatment record following a September 1999 line of duty report and the credible statements of the Veteran regarding the onset and continuing symptoms since his separation from service. The Board finds that service connection for headaches is granted. See 38 C.F.R. § 3.303 (a) (service connection must be considered on the basis of the places, types, and circumstances of his service as shown by his service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence); see also Jandreau v. Nicholson, supra; and Buchanan v. Nicholson, supra. 2. Entitlement to a total disability rating due to individual unemployability. At the time of the appeal, the Veteran was service connected for posttraumatic stress disorder rated at 30 percent from May 2007; Fibromyalgia rated at 10 percent from September 2010; and tinnitus rated at 10 percent from May 2013. The Veteran is now service-connected migraine headaches (which has not yet been rated.) As such, the Veteran's service-connected disability could not render him eligible for a TDIU under the schedular percentage requirements contemplated by VA regulation. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). However, all Veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16 (b). In Bowling v. Principi, 15 Vet. App. 1, 10 (2001), the United States Court of Appeals for Veterans Claims (Court), citing its decision in Floyd v. Brown, 9 Vet. App. 88, 94-97 (1995), held that the Board cannot award a TDIU under 38 C.F.R. § 4.16 (b) in the first instance because that regulation requires that the RO first submit the claim to the Director of the Compensation and Pension Service for extraschedular consideration. Indeed, in Bowling, the Court reversed the Board only to the extent that the Board concluded that the Veteran "was ineligible for 4.16(b)-TDIU consideration." Id. However, the Board finds that Bowling and Floyd's prohibition against granting an extraschedular TDIU in the first instance has been implicitly overruled through the issuance of the Court's decisions in Thun and Anderson, as well as the Federal Circuit's affirmance of Thun and its decisions in Disabled Am. Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003) and Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). It simply defies logic and the intent of the law that the Board is able to review de novo the determinations of the Direction of Compensation, yet must send it to her in the first instance, even when the Board finds that the evidence of record already shows the Veteran is incapable of obtaining or engaging in substantially gainful employment. Moreover, in a recent precedential decision, one of the Judges of the Court, in a concurring opinion, disagreed with the holding in Bowling and, cited Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992), in determining that the Board had the authority to award extraschedular TDIU in the first instance. See Wages v. McDonald, No. 13-2694, 2015 WL 293616, at *6 (Jan. 23, 2015) (Kasold, J., concurring). The Wages majority separately noted that, "[i]n sum, the Secretary's contention that § 4.16(b) vests an extraschedular TDIU award solely within the nonreviewable discretion of the Director conflicts with the statutory mandate that the Board provide the final decisions on section 511(a) benefits determinations. Accordingly, this contention is rejected." Id. at *5. (Emphasis added). Finally, the majority, in a footnote, observed the current absurdity inherent in the § 4.16(b) process, noting that "Although it is not clear how the Secretary's approach of inserting the Director into the regulatory process while refusing to recognize the Director as the agency of original jurisdiction fits within the statutory scheme for adjudicating VA benefits claims, see, e.g., 38 U.S.C. § 7105 (providing for Board review of decisions by an agency of original jurisdiction), we need not further address this issue in the absence of a direct challenge to that process.") Id. at *5 fn 4 (emphasis added). Therefore, given the Board's reasoning as outlined above, it will not make the Veteran wait for any further processing by VA. See Delisio v. Shinseki, 25 Vet. App. 45, 63 (2011) (Lance, J., concurring) ("There is an unfortunate-and not entirely unfounded-belief that veterans law is becoming too complex for the thousands of regional office adjudicators that must apply the rules on the front lines in over a million cases per year."); cf. Coburn v. Nicholson, 19 Vet. App. 427, 434 (2006) (Lance, J., dissenting) (noting that an unnecessary remand "perpetuates the hamster-wheel reputation of veterans law"). The only remaining issue is whether the Veteran was able to secure or follow a substantially gainful occupation as a result of service-connected disabilities. On this issue the Board finds the email exchange from October 2011 illuminating. In the exchange, the Veteran explains to his supervisor why he must constantly call off of work due to his now service-connected disabilities. The supervisor concludes that the Veteran cannot fulfill his role as the position requires because of his frequent absences due to his service-connected disabilities. Furthermore, the Veteran's VA treatment records from June 2019 indicate that the Veteran could not continue to work because of his chronic and constant migraine headaches. Importantly, in describing the Veteran's headaches, the Veteran's treating physician wrote, "they're chronic, daily, usually all over, any time of day [...]They're disabling and he's now retired because of it." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Coupled together, the Board finds that the evidence is persuasive and sufficient to determine that the Veteran cannot pursue substantially gainful employment due to his service-connected disabilities to include his migraine headaches. Thus, the Board finds that the Veteran is unemployable due to his service-connected disabilities, and entitlement to TDIU is granted. REASONS FOR REMAND 1. Entitlement to service connection for irritable bowel syndrome to include as a qualifying chronic disability under 38 C.F.R. § 3.317; a service connection disability manifested by joint pain, to include as a qualifying chronic disability under 38 C.F.R. § 3.317; service connection for a disability manifested by muscle cramps, to include as qualifying chronic disability under 38 C.F.R. § 3.317; service connection for a skin disability, to include as a qualifying chronic disability under 38 C.F.R. § 3.317; service connection for a disability manifested my memory loss, to include as a qualifying chronic disability under 38 C.F.R. § 3.317; service connection for a bilateral hand disability, to include as a qualifying chronic disability under 38 C.F.R. § 3.317; service connection for a cervical spine disability, to include as a qualifying chronic disability under 38 C.F.R. § 3.317; service connection for an undiagnosed illness, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. In November 2017, the Board remanded the matter to the AOJ for further evidentiary development, which included providing a report of the Veteran's periods of Active Duty for training (ACDUTRA) and Inactive duty for training (INACDUTRA) periods. The VA was also directed periods to provide VA examination regarding the Veteran's claims for service connection. The Board is obligated by law to ensure that the AOJ complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). Unfortunately, the claims file does not contain the ACDUTRA/INACDUTRA report as directed by the Board. Furthermore, while the Veteran was provided with VA examinations, the examiner noted that as the Veteran currently suffers from aphasia due to a stroke, and as such, he was unable to be fully participate; confusingly, the examiner proceeded to find that the Veteran's disabilities were not related to service because he denied any current disabilities. Considering the foregoing, the Board finds that the Board's remand directive was not fulfilled and where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that in October 2021 VA attempted to contact the Veteran about further examinations. His mother answered the phone and relayed that the Veteran was "not doing well" and would not be able to attend anymore examinations. With this in mind, the Board finds that if the Veteran is unable to attend any examination in relationship to the appeal, VA should provide an opinion on the appeals based on a further review of the Veteran's claims file. The matters are REMANDED for the following action: 1. Request from NPRC and any other appropriate source(s) a copy of the Veteran's complete service personnel records, and any other records necessary to verify all dates of active-duty service, ACDUTRA, and INACDUTRA. Follow the procedures set forth in 38 C.F.R. § 3.159 (c) with regard to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. Thereafter, prepare a report for the record specifying verified periods of active-duty service, ACDUTRA and INACDUTRA 2. Obtain an opinion from a qualified examiner as to the following: a. Whether the Veteran's diverticulosis/rectal hemorrhage, joint pain, muscle cramps, degenerative arthritis of the cervical spine, skin complaints/burning sensation, memory loss, and hand/wrist complaints are attributable to a known clinical diagnosis or to a disease process other than a known clinical diagnosis. If the examiner cannot identify a known disease or disability which causes these symptoms, the examiner should state that in the report. b. The examiner should clarify whether the symptoms in question are chronic in nature (e.g., present for 6 months or more). c. The examiner should also indicate whether the Veteran's symptoms and complaints represent a medically unexplainable chronic multi-symptom illness defined by a cluster of signs or symptoms. d. If the Veteran's complaints are attributable to a known clinical diagnosis, the examiner should render an opinion as to whether each diagnosed disability is at least as likely as not (e.g., a 50 percent or greater probability) etiologically related to active military service including environmental exposures during active service in Southwest Asia and explain why or why not. The examiner is also advised that the Veteran is competent to report ongoing symptoms and treatment, and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinion. The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached. 3. Confirm that the medical opinions provided comport with this remand and undertake any other development found to be warranted. 4. Re-adjudicate the Veteran's claims in light of all of the evidence of record. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Acosta-Davis, James 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.