DEGENERATIVE ARTHRITIS OF THE SPINE (SPONDYLOSIS)

J. PARKER · 2025 · Case ID: 25005815

MIXED

Summary

The veteran, who served in the Army from January 1990 to June 1993 as an administrative specialist, appeals the denial of service connection for a back disability and the denial of a higher rating for migraines. The Board previously denied service connection for the back and a rating above 30% for migraines, but a Joint Motion for Partial Remand led to this decision addressing whether obesity served as an intermediate step for secondary service connection for the back and whether migraines warranted a 50% rating. The Board also addresses a prior remand for TDIU. The veteran claimed direct service connection for the back due to alleged paratrooper duties and secondary connection due to service-connected knee and ankle disabilities, with obesity as an intermediate step. The Board found the paratrooper claims not credible, citing service records and a revoked air assault badge. While service treatment records showed acute back pain, the Board found no in-service injury or chronic symptoms, with the current back condition attributed to post-service scoliosis and obesity. A private physician's opinion linking the back condition to service-connected disabilities was found speculative and based on inaccurate facts, while a VA examiner's opinion against causation was found more persuasive. The Board denied service connection for the back. For migraines, the Board found the evidence in equipoise regarding whether attacks were very frequent, prostrating, and productive of severe economic inadaptability. Citing the persuasive value of a private examiner's opinion on the impact of chronic migraines and resolving doubt in the veteran's favor, the Board granted a 50% rating for migraines for the period of appeal. The Board also granted TDIU for specific periods, finding the combined service-connected disabilities, including the now-granted 50% migraine rating, rendered the veteran unable to maintain substantially gainful employment, resolving doubt in the veteran's favor.

Rationale

No credible in-service injury or disease of the back.; Current back condition attributed to post-service scoliosis and morbid obesity.; Private physician's opinion found speculative and based on inaccurate facts.

Service Branch

ARMY

Special Benefit

TDIU

Docket No.

16-35 346

Full Decision Text

Citation Nr: 25005815
Decision Date: 04/29/25 Archive Date: 04/29/25

DOCKET NO. 16-35 346
DATE: April 29, 2025

ORDER

Service connection for degenerative disc disease of the lumbar spine (back disability) is denied.

For the initial rating period on appeal from February 17, 2014, to July 21, 2021, a higher initial disability rating of 50 percent, but no higher, for the service-connected migraines is granted.

From February 17, 2014, to April 28, 2015, and from August 1, 2015, a total disability rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is granted.

FINDINGS OF FACT

1. The evidence shows a current diagnosis of degenerative disc disease of the lumbar spine (back disability).

2. The Veteran did not sustain a back injury or disease during service, and did not perform duties as a paratrooper during service.

3. The back disability did not have its onset during service and is not otherwise related to service.

4. The current back disability was not caused or worsened in severity by the service-connected disabilities.

5. The Veteran is obese.

6. The service-connected disabilities, separately or together, did not cause the Veteran to become obese or worsen in severity the obesity.

7. For the initial rating period on appeal from February 17, 2014, to July 21, 2021, after consideration of the ameliorative effects of medication, the service-connected migraine disability manifested as migraines with very frequent completely prostrating attacks productive of severe economic inadaptability.

8. From February 17, 2014, to April 28, 2015, and from August 1, 2015, the Veteran was unemployed.

9. From February 17, 2014, to April 28, 2015, and from August 1, 2015, the Veteran was unable to follow (maintain) substantially gainful employment as a result of the service-connected disabilities.

CONCLUSIONS OF LAW

1. The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310; VAOPGCPREC 1-2017.

2. Resolving reasonable doubt in favor of the Veteran, for the initial rating period on appeal from February 17, 2014, to July 21, 2021, the criteria for a higher initial disability rating of 50 percent, but no higher, for the service-connected migraine disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8100.

3. Resolving reasonable doubt in favor of the Veteran, from February 17, 2014, to April 28, 2015, and from August 1, 2015, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.3, 4.16, 4.18, 4.19.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran, who is the appellant, had active service from January 1990 to June 1993.

The instant case is on appeal to the Board of Veterans' Appeals (Board) from a Department of Veterans Affairs (VA) Regional Office (RO) rating decision.

This case has an extensive procedural history and has been before the Board previously. Most recently, in May 2023, the Board denied service connection for a back disability, and denied a higher initial rating in excess of 30 percent for the migraines from February 17, 2014, to July 21, 2021.

The Veteran appealed the denials to the United States Court of Appeals for Veterans Claims (CAVC or Court). In July 2024, the representative and VA agreed in a Joint Motion for Partial Remand (JMPR) that the May 2023 Board decision should be vacated in part, and the case remanded to the Board for additional development. Specifically, the parties agreed that the Board should have addressed whether the Veteran's obesity caused the back disability
Most recently, in May 2023, the Board denied service connection for a back disability, and denied a higher initial rating in excess of 30 percent for the migraines from February 17, 2014, to July 21, 2021.

The Veteran appealed the denials to the United States Court of Appeals for Veterans Claims (CAVC or Court). In July 2024, the representative and VA agreed in a Joint Motion for Partial Remand (JMPR) that the May 2023 Board decision should be vacated in part, and the case remanded to the Board for additional development. Specifically, the parties agreed that the Board should have addressed whether the Veteran's obesity caused the back disability and whether the migraines were productive of severe economic inadaptability. The instant Board decision is a response to the July 2024 JMR.

Additionally, a June 2021 Board decision remanded the issue of whether the Veteran was entitled to a TDIU from February 17, 2014. It does not appear that the appeal for a TDIU was further developed; however, as the evidence of record is sufficient to favorably decide this issue, no further development is required.

The Veteran testified at a March 2021 Board hearing before the undersigned Veterans Law Judge. A copy of the March 2021 Board hearing transcript has been associated with the claims file.

1. Service Connection for a Back Disability is Denied.

The Veteran appeals for service connection for a back disability. The Veteran has contended that service connection is warranted on a direct basis (38 C.F.R. § 3.303(a), (d)), and/or as secondary to the service-connected right knee and right ankle disabilities (38 C.F.R. § 3.310). See June 2018 VA examination report. The Veteran has contended that a back disability is due to being a paratrooper during service. See June 2018 VA Examination. The Veteran has most recently contended that a back disability is secondary to the service-connected disabilities with obesity as an "intermediate step" (38 C.F.R. § 3.310). See July 2024 JMR.

Direct Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 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 competent (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability.

Secondary Service Connection

Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See id.; Harder v. Brown, 5 Vet. App. 183, 187 (1993).

The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or the result of, a service-connected disease or injury. To prevail on the issue of secondary service causation, the record must show competent (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) evidence establishing a connection between the current disability and the service-connected disability. Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995).

The Role of Obesity

VA's General Counsel issued a precedential opinion concerning service connection based on obesity. See VAOPGCPREC 1-2017. Precedential opinions issued by VA's chief legal officer are binding on the Board. 38 U.S.C. § 7104(c). The opinion holds, inter alia, that obesity is not a disease or injury for purposes of 38 C.F.R. §§ 1110 and 1131 and, therefore, may not be service connected on a direct basis. VAOPGCPREC 1-2017 at 7. Similarly, obesity cannot be service connected on a secondary basis as a disability directly resulting from a veteran's service-connected disability under 38 C.F.R. § 3.310, and may not be considered an "in-service event" under 38 C.F.R. § 3.159(a)(4) for the purposes of establishing service connection for a disease that is diagnosed after service discharge.

VA's General Counsel interpreted that obesity may act as an "intermediate step" to establish proximate causation between a service-connected disability and a current disability that may be service connected on a secondary basis under 38 C.F.R. § 3.310(a). Id. at 7-9. Proximate causation is a factual finding to be determined by the adjudicator. Id. at 9 (citing VAOPGCREC 6-2003 and 19-1997).

In order to establish a service-connected disability proximately caused or aggravated a current disability through obesity, the adjudicator must determine: (1) whether the service-connected disability caused the veteran to become obese or aggravated the obesity; (2) if so, whether the obesity as a result of the service-connected disability was a substantial factor in causing the current disability; and (3) whether the current disability would not have occurred but for obesity caused or aggravated by the service-connected disability. Id. at 9-10. If all the above questions are answered in the affirmative, then the current disability may be service connected on a secondary basis. Id. at 10.

After a review of the lay and medical evidence of record, the Board finds that the persuasive weight of the evidence is against a grant of service connection for a back disability under any theory of entitlement, to include direct or secondary (including with obesity as an "intermediate step").

The evidence shows a current diagnosis of degenerative disc disease of the lumbar spine. See June 2018 VA Examination. The requirement for a current disability for service connection has been met.

At the outset, based on a weighing of lay and medical evidence of record, the Board finds that the Veteran is not credible regarding the reports of combat as a paratrooper. Specifically, although the Veteran has alleged service as a paratrooper, the Department of Defense Form 214 (DD Form 214) and service personnel records show that the Veteran served as an administrative specialist during service.

The December 2018 Army Review Boards Memorandum reflects that the agency determined that the evidence of record demonstrated that the Veteran did not complete airborne school, indicating that the Veteran was in fact not a paratrooper during service. In addition, while there is some discrepancy as to whether the Veteran earned an air assault badge during service, completing an air assault course during service does not show the Veteran was a paratrooper during service. The service personnel records explicitly show that the Veteran was an administrative specialist throughout service. See DD Form 214 (reflecting that the Veteran served as an administrative specialist for three years and one month).

The DD Form 214 also does not reflect the receipt of any air assault badge. The October 2018 Army Board of Correction of Military Records of Proceedings reflects that the Army Board itself noted that the service personnel records indicate that the Veteran did not complete airborne school, and that "his award of the air assault badge was revoked."

In consideration thereof, the Board finds that the accounts of service as a paratrooper are not credible, so are of no probative value. See Fed. R. Evid. 803(7) (indicating that the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (stating that VA may use silence in the service treatment records as evidence contradictory to a veteran's assertions if the service treatment records appear to be complete and the injury, disease, or symptoms
airborne school, and that "his award of the air assault badge was revoked."

In consideration thereof, the Board finds that the accounts of service as a paratrooper are not credible, so are of no probative value. See Fed. R. Evid. 803(7) (indicating that the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (stating that VA may use silence in the service treatment records as evidence contradictory to a veteran's assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred) (Lance, J., concurring); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (the absence of a notation in a record may only be considered if it is first shown both that the record is complete and also that the fact would have been recorded had it occurred).

After a review of the lay and medical evidence of record, the Board finds that the persuasive weight of the evidence is against finding that a back injury or disease occurred during service. While service treatment records reflect that the Veteran sought treatment for back pain, the June 2018 VA examiner opined that the current back disorder was related to scoliosis and morbid obesity. The Veteran himself has reported that chronic low back pain began in October 2001, approximately eight years after service separation, and that the pain was due to a post-service back injury while working. See May 2022 VA Treatment Record. As such, the Board finds acute episodes of back pain during service, but no other in-service injury or disease of the back and no chronic back symptoms during service. The service treatment records, which are complete, show no complaints, symptoms, findings, diagnoses, or treatment related to the back disability, except for acute back pain, which has been related by the June 2018 VA examiner to non-service-related scoliosis and morbid obesity.

Regarding the theory of direct service connection, the Board finds that the persuasive weight of the evidence demonstrates that a back disability, which first manifested years after service, was not caused by or otherwise related to service, including the acute episodes of back pain during service. The May 2002 VA treatment record reflects the Veteran reported chronic low back pain beginning in October 2001, approximately eight years after separation from service. The private treatment records also reflect an October 2001 post-service back injury while working. Further, after review of the record, the June 2018 VA examiner opined that a back disorder was not incurred in or caused by service. In support of the medical opinion, the VA examiner explained that, while service treatment records reflected episodes of back pain, the current back disability was related to congenital thoracic scoliosis and morbid obesity.

While the June 2018 VA examiner indicated that the Veteran was "trained as a paratrooper during service" in the recitation of the pertinent evidence that was reviewed, the Board finds that the reliance on the Veteran's non-credible statements does not render the opinion inadequate because this is an inaccurate factual history that is more favorable to the Veteran than the actual fact that the Veteran did not perform paratrooper duties during service. Specifically, when the Veteran sought treatment for the back in May 2002, he reported chronic low back pain beginning in October 2001, approximately eight years after service separation, without any mention of in-service back injury or chronic back symptoms. The private treatment records reflect the same. In addition, the Board has found that the Veteran is not credible in reporting the claimed in-service events of paratrooping. In this case, the Board finds that the history presented by the Veteran when he initially sought treatment, making no mention of in-service back injury or symptoms, tends to show that back symptoms in service were not chronic, the Veteran did not sustain a back injury in service, and the current back condition is not related to service.

Concerning secondary service connection (38 C.F.R. § 3.310), the Board will first address whether the service-connected musculoskeletal disabilities caused or worsened in severity (aggravated) the back disability, as this is one of the Veteran's contentions. The Board will then proceed to address whether, under the facts of this case, obesity can serve as an "intermediate step" linking any or all service-connected disabilities to the current back disability.

The June 2018 VA examiner opined that the back disorder was unrelated to the service-connected disabilities, to include the service-connected right knee, to include knee pain. The VA examiner reasoned that
service, and the current back condition is not related to service.

The June 2018 VA examiner opined that the back disorder was unrelated to the service-connected disabilities, to include the service-connected right knee, to include knee pain. The VA examiner reasoned that, instead, the back pain was related to a combination of thoracic scoliosis, degenerative disc disease of the lumbar spine, and morbid obesity.

The Board is affording the June 2018 private physician's purported secondary service connection opinion regarding the back disability no probative value because the June 2018 private physician's general attribution that a person with arthritis in two major joints of the lower extremity "will generally have an altered gait pattern" is speculative when read in the context of the facts of this case, which show no altered gait or credible assertions of such. When read in context, the private physician's statement uses speculative language of only a possible relationship between the current back disability to the service-connected disabilities. See 38 C.F.R. § 3.102 (statements that involve "pure speculation or remote possibility" are not within the range of probability).

In addition to being speculative, the June 2018 private physician's purported secondary service connection opinion is based on a materially inaccurate factual assumption that the Veteran had an altered gait. The June 2018 VA examiner conducted an in-person examination of the Veteran and specifically found that the Veteran did not have an altered gait, while the June 2018 private physician rendered an opinion based only upon review of the Veteran's medical records, rather than examination, and apparently did not even thoroughly review the medical records to note that numerous VA treatment records reflect various VA treatment providers assessed unaltered gait. See, e.g., December 2002, June 2016, and December 2014 VA Treatment Records. As the June 2018 private physician's purported opinion is speculative and based on a materially inaccurate factual assumption, it is afforded no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis).

Regarding the specific agreement of the July 2024 JMPR, that the Board must address whether the theory of secondary service connection with obesity as an "intermediate step" has been raised, the Board finds that the theory has been raised by the evidence of record, but that the persuasive weight of the evidence is against a grant of service connection pursuant to this theory. The Board finds that the persuasive weight of the evidence is against a finding that the service-connected disabilities caused or aggravated the obesity, thus precluding obesity from serving as an "intermediate step" to secondary service connection. See VAOPGCPREC 1-2017.

The evidence shows that the Veteran is obese and has been counseled on the need to lose weight. See, e.g., August 2011 VA Treatment Record; February 2014 VA Treatment Record. Initially, the Veteran declined referral to the MOVE program, which is a program that is designed to help individuals lose weight through exercise and diet modification. See, e.g., February 2014 VA Treatment Record.

Later, the Veteran enrolled in the MOVE clinic. See, e.g., September 2015 VA Treatment Record. The Veteran subsequently reported that he was losing weight. See, e.g., November 2015 VA Treatment Records; October 2019 VA Treatment Record (reporting an interval weight loss of 12 pounds through "eating salads"); October 2020 VA Treatment Record. The fact that the Veteran has successfully been able to lose weight, despite any limitations posed by the service-connected disabilities, provides some evidence in support of a finding that the service-connected disabilities did not cause or aggravate the obesity.

A June 2023 VA examiner opined that the service-connected disabilities and the weight gain are not medically related; rather, weight gain is a separate entity entirely and unrelated. As noted by the June 2023 VA examiner, an orthopedic condition does not preclude all forms of exercise. From the weight measures recorded in the VA treatment records, the Veteran is "clearly able to lose weight despite the service-connected disabilities, which indicates a choice." Obesity would have occurred regardless of the service
The fact that the Veteran has successfully been able to lose weight, despite any limitations posed by the service-connected disabilities, provides some evidence in support of a finding that the service-connected disabilities did not cause or aggravate the obesity.

A June 2023 VA examiner opined that the service-connected disabilities and the weight gain are not medically related; rather, weight gain is a separate entity entirely and unrelated. As noted by the June 2023 VA examiner, an orthopedic condition does not preclude all forms of exercise. From the weight measures recorded in the VA treatment records, the Veteran is "clearly able to lose weight despite the service-connected disabilities, which indicates a choice." Obesity would have occurred regardless of the service-connected disabilities, as the obesity was due to a choice to consume more calories than the body needs. The June 2023 VA examiner acknowledged the Veteran's lay statements as to the difficulty of weight loss and the private opinion (discussed further below), and then assessed that they are not supported by the evidence.

The Board acknowledges the December 2022 private opinion that purported to find a link between the chronic pain associated with the musculoskeletal disabilities and an increase in food consumption, as the food consumption "appears to be their only satisfaction." The December 2022 private examiner wrote that a veteran who experienced chronic pain would find an outlet in excessive eating, and thus become obese. The December 2022 private examiner further wrote that neurological changes from chronic pain lead to altered sleep, which is a major factor in weight gain.

The December 2022 private examiner further reasoned that neurohumoral changes impact the brain-mediated proteins, such as leptin, which controls satiety, and thus abnormally impacts eating patterns and weight gain. The December 2022 private examiner concluded by stating that the service-connected migraines, knees, and ankle disabilities collectively cause significant chronic pain, and the resulting limited mobility contributes to increasing weight gain.

The Board finds that the December 2022 private opinion suggesting that the service-connected disabilities caused the obesity is less persuasive than the June 2023 private examiner's opinion against causation. The June 2023 VA examiner's opinion explicitly discusses the findings from the Veteran's treatment records, which documented weight loss despite the service-connected disabilities. The December 2022 private examiner did not show recognition of or discuss this finding, which is a material fact to the contention. The June 2023 VA examiner considered the medical reasoning of the private examiner, which did not reference the Veteran's weight loss, and assessed that the December 2022 private examiner's opinion was not persuasive.

Given the above, the Board finds that the persuasive weight of the evidence is against a finding that the service-connected disabilities caused or aggravated the back disability or that the service-connected disabilities separately or together led to obesity such that it could be an "intermediate step" to service connection. Accordingly, secondary service connection for a back disability (38 C.F.R. § 3.310) must be denied. As service connection has been denied on a direct and secondary basis, all potential theories of entitlement have been exhausted, and the appeal for service connection for a back disability must be denied.

2. From February 17, 2014, to July 21, 2021, a Higher Initial Disability Rating of 50 Percent, but no Higher, for the Migraines is Granted.

The May 2023 Board decision denied a disability rating in excess of 30 percent for the service-connected migraines for the staged initial rating period on appeal from February 17, 2014, to July 21, 2021. The Veteran appealed the assigned disability rating to the Court, and the parties to the JMPR agreed that the Board needed to further discuss whether the migraines manifested as very frequent completely prostrating attacks productive of severe economic inadaptability, such that a higher 50 percent disability rating would be warranted.

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.

Where there is a question as to which of two ratings shall be applied, the higher rating 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. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3.

Migraines are rated pursuant to Diagnostic
. § 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.

Migraines are rated pursuant to Diagnostic Code 8100. Migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a 50 percent rating. Migraines with characteristic prostrating attacks occurring on an average of once a month over the last several months warrant a 30 percent rating. Migraines with characteristic prostrating attacks averaging one in two months over the last several months warrant a 10 percent rating. Migraines with less frequent attacks warrant a 0 percent (noncompensable) rating. 38 C.F.R. § 4.124a.

The regulation does not define the term prostrating, but a medical dictionary defines prostration as "extreme exhaustion or powerlessness." Dorland's Illustrated Medical Dictionary 1531 (32nd ed. 2012).

Although relief by medication is relevant to a veteran's overall disability picture, VA may not take those effects into account when evaluating a veteran's disability and must limit itself to the symptoms expressly contemplated by the diagnostic code. When medication is not mentioned in the schedular rating criteria, VA may not consider relief from those symptoms afforded by medication. See Jones v. Shinseki, 26 Vet. App. 45 (2012).

After a review of the lay and medical evidence of record, and resolving reasonable doubt in favor of the Veteran, the Board finds that, after consideration of the ameliorative effects of medication, the criteria for a 50 percent disability rating have been met for the staged initial rating period on appeal from February 17, 2014, to July 21, 2021. In January 2014, shortly prior to the rating period on appeal, the Veteran reported to a VA treating provider that he had been having more headaches recently. In August 2014, the headaches were described as including symptoms like blurry vision, and neurological imaging was recommended.

A January 2014 Social Security Administration (SSA) claim by the Veteran listed a range of disabilities (posttraumatic stress disorder, obstructive sleep apnea, sleep disorder, diabetes, two foot surgeries, arthritis, back and knee issues, mental health issues, prostrate issues, and high blood pressure). The Veteran did not assert that the migraines caused unemployability.

Later in August 2014, the Veteran reported that headaches had started about three months ago, involved sharp temporal pain on the right side with light sensitivity, and that there was no warning as to onset. Staying in a quiet, cold, dark area alleviated the headaches. In October 2014, the Veteran was prescribed medication to address the migraines.

An April 2015 VA examiner found that the migraines manifested as prostrating attacks of migraine pain, but did not find that they were productive of severe economic inadaptability.

In September 2015, there was some interval improvement with the taking of the migraine medication. The Veteran denied headaches at an April 2016 appointment, when the provider noted that the Veteran took a daily medication to address them. The Veteran subsequently reported moderate to severe headaches with blurry vision.

A few VA treatment records subsequent to the April 2016 VA appointment documented the absence of headaches. See, e.g., February 2017, June 2017, and November 2017 VA Treatment Records. In June 2018, the Veteran reported that he had run out of medication and complained that the headaches had returned. Subsequent VA treatment records did not address headaches.

The Veteran wrote in multiple VA Form 21-8940s (TDIU claim forms) that several disabilities caused unemployability and did not list the migraines as being the cause. See July 2014, June 2014, May 2014, February 2014, and August TDIU claim forms. The Veteran listed the migraines as a cause of unemployability in a later January 2015 TDIU claim form.

A March 2018 VA examiner found that the migraines did not manifest as very frequent prostrating and/or
, the Veteran reported that he had run out of medication and complained that the headaches had returned. Subsequent VA treatment records did not address headaches.

A March 2018 VA examiner found that the migraines did not manifest as very frequent prostrating and/or prolonged attacks productive of severe economic inadaptability.

At a March 2021 Board hearing, the Veteran testified that the headaches occur three to four times per week and are treated with medication.

A July 2022 vocational rehabilitation document, which is one year after the period on appeal, listed the migraines as a disability that impacted the Veteran's ability to work.

A December 2022 private examiner wrote that the treatment modalities the Veteran had attempted to manage the migraines were ineffective and that the examiner was not sure why the Veteran had not been referred to a specialist. The December 2022 private examiner wrote that the migraines precluded employment, explaining that people with frequent headaches are known to experience lower quality of life and that studies show a substantial impact on worker productivity.

The December 2022 private examiner explained that migraines involve several phases, including a prodromal phase and aura phase prior to the onset of the headache, headaches lasting 4 to 74 hours, and a post-drome phase that lasts 24-48 hours. The Veteran reported that the acute phase of the headache produces a pain level of 9 out of 10 and that he is unable to engage in any activity and must lie down in a dark, quiet room. He is reported to be unable to function during the acute phase, "like all other migraine patients." Additionally, his post-drome phase produces pain that is a level 4 to 6, which can last for up to 10 days.

The Board finds that the evidence is at least in relative equipoise on the question of whether headaches manifest as very frequent prostrating and/or prolonged attacks productive of severe economic inadaptability from February 17, 2014, to July 21, 2021. The Board finds the opinion of the December 2022 private examiner to be persuasive as to the impact of chronic migraines on a patient's productivity. The will not consider the ameliorative effects of medication. Rather, the evidence shows that the Veteran experiences significant headaches with a loss of productivity when he is unable to take medication. The Board will resolve reasonable doubt in favor of the Veteran to find that the migraines manifest as very frequent prostrating and/or prolonged attacks productive of severe economic inadaptability from February 17, 2014, to July 21, 2021. 38 C.F.R. §§ 4.1, 4.3, 4.7. For these reasons, the Board will grant a higher initial disability rating of 50 percent, but no higher, for the migraines from February 17, 2014, to July 21, 2021.

A 50 percent disability rating is the maximum schedular rating available under Diagnostic Code 8100. Neither the Veteran nor the evidence has raised a claim for extraschedular rating in this case.

3. From February 17, 2014, to April 28, 2015, and from August 1, 2015, a TDIU is Granted.

A June 2021 BVA decision remanded the issue of a TDIU from February 17, 2014. The Veteran has contended at multiple points that the evidence supports a TDIU. It does not appear that the appeal for a TDIU was addressed after the June 2021 Board remand, but the Board finds that the appeal is ripe for adjudication and will decide the issue in the instant decision, as there is adequate evidence to grant a TDIU.

Preliminarily, the Board notes that from April 28, 2015 to August 1, 2015 the Veteran is already in receipt of a 100 percent temporary total rating based on post-surgical convalescence related to the left knee disability. The Veteran has not contended, and the evidence does not support, a finding that a TDIU is warranted solely on the basis of the left knee disability. Accordingly, the TDIU period on appeal runs from February 17, 2014 to April
2021 Board remand, but the Board finds that the appeal is ripe for adjudication and will decide the issue in the instant decision, as there is adequate evidence to grant a TDIU.

Preliminarily, the Board notes that from April 28, 2015 to August 1, 2015 the Veteran is already in receipt of a 100 percent temporary total rating based on post-surgical convalescence related to the left knee disability. The Veteran has not contended, and the evidence does not support, a finding that a TDIU is warranted solely on the basis of the left knee disability. Accordingly, the TDIU period on appeal runs from February 17, 2014 to April 28, 2015, and from August 1, 2015, which excludes the period in which the Veteran was in receipt of a temporary total rating.

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2).

TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a), (b).

If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a).

If a veteran's disabilities do not meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16(a), it then becomes necessary to consider whether the criteria for referral for extraschedular consideration are met under § 4.16(b) criteria. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Submission to the Director, Compensation and Pension Service, for extraschedular consideration is warranted in all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). 38 C.F.R. § 4.16(b).

Individual unemployability must be determined without regard to any non-service-connected disabilities or a veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran's favor. 38 C.F.R. § 4.3.

In Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims (Court) defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran's earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to
employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran's earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991).

In Ray v. Wilkie, the Court explained that substantially gainful employment contains economic and noneconomic components. The noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). In evaluating a veteran's employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19.

The economic component involves considerations around marginal employment. Ray, 31 Vet. App. at 73. Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17(a).

The term "protected environment" has not been specifically defined by VA. Until recently, it had not been defined by the courts that review VA decisions. Most recently, the Court addressed the meaning of the phrase "employment in a protected environment" in 38 C.F.R. § 4.16(a). In LaBruzza v. McDonough, the Court defined a "protected environment" as a "lower-income position that, due to the veteran's service-connected disability or disabilities, is shielded in some respect from competition in the employment market." The Court stated that while the Board may consider ADA accommodations and other individualized factors, such as income, neither are dispositive. LaBruzza v. McDonough, 37 Vet. App. 111, 123-24 (2024). The Court indicated that a protected work environment was one where the earned income was above the marginal employment level, but not too far above it, and that it is a very fact specific inquiry. Id.

The ultimate issue of whether a TDIU should be awarded is not a medical question, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the VA adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to "the effect of combinations of disability," VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner's opinion. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case).

There are a variety of potentially
4.15, to "the effect of combinations of disability," VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner's opinion. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case).

There are a variety of potentially relevant factors in order to determine whether a veteran can obtain and maintain a substantially gainful occupation under 38 C.F.R. § 4.16: (1) the veteran's 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, including limitations in lifting, bending, sitting, and other similar activities, and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue, including difficulty concerning memory, concentration, ability to adapt to change, ability to handle work place stress, ability to get along with coworkers, and ability to demonstrate reliability and productivity. See Ray, 31 Vet. App. at 58.

In this case, the service-connected disabilities meet the combined ratings percentage requirements for TDIU eligibility for the entire period on appeal. The instant decision has assigned a 50 percent disability rating for the migraines, effective February 17, 2014. As of February 17, 2014, the Veteran was in receipt of a 20 percent disability rating for the degenerative joint disease of the left ankle, a 10 percent disability rating for the major depressive disorder, a 10 percent disability rating for limitation of flexion of the left knee, a 10 percent disability rating for limitation of flexion of the right knee, and noncompensable (0 percent) disability ratings for hyperpigmentation of the skin and a left knee scar.

Subsequently, the Veteran was in receipt of a 20 percent disability rating for limitation of extension of the right knee, a 20 percent disability rating for limitation of extension of the left knee, a 10 percent disability rating for a painful scar, and noncompensable (0 percent) disability ratings for irritable bowel syndrome, sinusitis, rhinitis, and recurrent hemorrhoids.

For purposes of analysis of the TDIU, the Board will assess whether a TDIU is warranted solely on the basis of the disabilities that were service connected at the beginning of the rating period on appeal. The Board finds that the evidence is at least in relative equipoise on the question of whether the combined impact of the service-connected migraines, right ankle disability, major depressive disorder, limitation of flexion of the knees, hyperpigmentation of the skin, and left knee scar alone warrants the grant of a TDIU. A January 2019 private vocational opinion, discussed further below, indicated unemployability was caused by the service-connected migraines, right ankle disability, and bilateral knee disabilities.

Accordingly, the next questions are whether the economic and non-economic components of a TDIU have been met. Concerning the economic component, the evidence shows that the Veteran has not been employed since 2012. As this covers the entire period on appeal, the economic component of a TDIU has been met.

After a review of all the lay and medical evidence of record, the Board finds that the evidence is at least in relative equipoise on the question of whether the Veteran was unable to follow (maintain) substantially gainful employment as a result of the service-connected disabilities. Concerning the Veteran's history, education, skill, and training, the Veteran has worked primarily as a truck driver, with some other short-term positions in sanitation, but the positions only lasted a few months each because of reported difficulties with absenteeism due to health issues. See, e.g., February 2014 TDIU Claim Form. The Veteran worked in five separate jobs from June 2011 to March 2012. The Veteran reported in February 2014 that he tried to obtain employment after he lost his most recent job but was not able to obtain anything. The Veteran also previously reported that he became too disabled to work in November 2012. See June 2014 TDIU Claim Form.

The Veteran has been assisted by the VA vocational rehabilitation services program in obtaining an associate's degree in business administration. The associate's degree program took approximately four years
but the positions only lasted a few months each because of reported difficulties with absenteeism due to health issues. See, e.g., February 2014 TDIU Claim Form. The Veteran worked in five separate jobs from June 2011 to March 2012. The Veteran reported in February 2014 that he tried to obtain employment after he lost his most recent job but was not able to obtain anything. The Veteran also previously reported that he became too disabled to work in November 2012. See June 2014 TDIU Claim Form.

The Veteran has been assisted by the VA vocational rehabilitation services program in obtaining an associate's degree in business administration. The associate's degree program took approximately four years and the Veteran struggled to maintain focus and interact with others, which is a difficulty linked to the service-connected psychiatric disability. See February 2018 Private Opinion (reporting that the Veteran had to stop attending classes because of an inability to study effectively and focus). The Veteran reported that no one would hire him in a related field because his health was too poor. See January 2015 TDIU Claim Form.

The January 2019 private examiner wrote that the Veteran had a history of semi-skilled occupations requiring light to medium level demand work. The January 2019 private examiner opined that the Veteran did not have transferable skills in order to change to alternative types of occupation within the general labor market. The January 2019 private examiner found that difficulties with employment occurred due to the psychiatric issues (discussed further below), and the physical disabilities.

Concerning physical limitations, service connection has been established for migraines, a left ankle disability, and bilateral knee disabilities for the entire period on appeal. As discussed above, the migraines have been determined to manifest as very frequent prostrating and/or prolonged attacks productive of severe economic inadaptability, which by itself suggests a high degree of employment-related impact.

Pertaining to the right ankle, a December 2012 VA examiner found that the Veteran could not be on his feet without using an ankle brace and crutch, but concluded that sedentary work would be possible. A March 2014 VA examiner wrote that the right ankle would cause difficulties with standing/ambulation, stairs, and an inability to run. A March 2018 VA examiner wrote that flare-ups consisted of chronic bilateral ankle pain, with limitations in standing and ambulating.

Pertaining to the knees, a March 2014 VA examiner opined that the right knee is associated with pain and limitations in standing, ambulation, stairs, squatting/kneeling, and the ability to run. An August 2014 VA examiner wrote that the Veteran had been working as a building maintenance, but that he had to stop working due to an inability to stand and walk for extended periods of time, which was required by his job.

Overall, the migraines, right ankle, and bilateral knee disabilities limit the Veteran's ability to maintain employment. He is unable to perform a variety of job tasks for which he had previously used during employment. The limitations in ambulation and standing cause an impact on employability.

Concerning the psychiatric disability, a February 2015 VA examiner found that the Veteran could not maintain a normal sleep pattern, getting no more than 3 to 4 hours per night, and experienced a loss of energy, in part being due to medications. August 2013 and October 2015 private treatment records document that the Veteran could not stay focused on his work and could not keep his jobs because of days when he could not go to work because he could not sleep well.

A private examiner found that the Veteran would avoid crowds and social situations, would lash out at others, wanted to be alone continually, and had persistent sleep issues that caused absenteeism. The Veteran reported that a combination of anxiety and sleep difficulties would lead to an inability to maintain a job. The Veteran told a December 2018 private examiner that he had some mild hallucinations for a while when his anxiety level was high and flashbacks. The December 2018 private examiner wrote that the Veteran had difficulty adapting to stressful situations and to establish effective relationships, and that the Veteran should not seek employment until his symptoms were significantly improved.

Overall, the Board finds that the evidence is at least in relative equipoise on the question of whether the service-connected migraines, right ankle, and bilateral knee disabilities caused an inability to maintain employment from February 17, 2014, to April 28, 2015, and from August 1, 2015. The January 2019 private examiner opined that the Veteran was unable to maintain employment because of a variety of factors related to the service-connected disabilities, such as the mobility limitations caused by the musculoskeletal disabilities and the
December 2018 private examiner wrote that the Veteran had difficulty adapting to stressful situations and to establish effective relationships, and that the Veteran should not seek employment until his symptoms were significantly improved.

Overall, the Board finds that the evidence is at least in relative equipoise on the question of whether the service-connected migraines, right ankle, and bilateral knee disabilities caused an inability to maintain employment from February 17, 2014, to April 28, 2015, and from August 1, 2015. The January 2019 private examiner opined that the Veteran was unable to maintain employment because of a variety of factors related to the service-connected disabilities, such as the mobility limitations caused by the musculoskeletal disabilities and the difficulty with focus, sleep, and resultant absenteeism caused by the psychiatric disability. The Board will resolve reasonable doubt in favor of the Veteran to find that the service-connected disabilities caused the Veteran to be unable to maintain substantially gainful employment from February 17, 2014 to April 28, 2015, and from August 1, 2015. Given the above, the Board finds that the criteria for a TDIU from February 17, 2014, to April 28, 2015, and from August 1, 2015 have been met and will grant the appeal for a TDIU.

J. PARKER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board A. Smith, 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.

Analyze in VA Law Explorer