MIGRAINE

M. PRYCE · 2026 · Case ID: A26035041

MIXED

Summary

The veteran, who served from September 1990 to May 1991 with additional National Guard service, appealed the denial of a compensable rating for headaches prior to May 4, 2020, and a rating higher than 30 percent for acquired psychiatric disorder. The veteran died in July 2020, and his surviving spouse substituted as appellant. The Board found that prior to May 4, 2020, the veteran's headaches were not frequent or severe enough for a compensable rating, but granted a 30 percent rating from that date forward due to increased frequency and severity, though not meeting criteria for a higher rating. For the acquired psychiatric disorder, the Board reviewed the veteran's history, including reports of depression, anxiety, panic attacks, sleep impairment, and mild memory loss, as well as lay statements from his sister and wife. The Board found the private medical opinion from August 2021 to have minimal probative value due to its timing and lack of specificity regarding the appeal period. The Board concluded that the veteran's symptoms, while causing some impairment, did not reach the level required for a rating above 30 percent, citing his generally satisfactory functioning, routine behavior, self-care, and participation in church and family activities. The claim for a separate rating for vertigo was denied, as the Board found it to be a symptom of the service-connected psychiatric disorder and that compensating it separately would constitute impermissible pyramiding. The claim for TDIU was also denied, as the Board found the veteran's service-connected disabilities alone did not preclude him from obtaining or maintaining substantially gainful employment, citing his ability to complete household chores, work on projects, and his receipt of Social Security Disability Insurance for non-service-connected conditions.

Rationale

Weight of evidence against compensable rating prior to May 4, 2020; Headaches generally infrequent and slight; Did not meet criteria for prostrating attacks

Special Benefit

TDIU

Diagnostic Code

8100

Docket No.

250616-554716

Full Decision Text

Citation Nr: A26035041
Decision Date: 04/15/26 Archive Date: 04/15/26

DOCKET NO. 250616-554716
DATE: April 15, 2026

ORDER

Prior to May 4, 2020, a compensable rating for headaches, for the purposes of accrued benefits, is denied.

From May 4, 2020, a 30 percent rating for headaches, for the purposes of accrued benefits, is granted.

A rating higher than 30 percent for bipolar disorder and unspecified anxiety disorder to include vertigo (acquired psychiatric disorder), for the purposes of accrued benefits, is denied.

A compensable rating for vertigo, separate and distinct from the assigned rating for unspecified anxiety disorder, for the purposes of accrued benefits, is denied.

A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) based on service-connected disabilities is denied.

FINDINGS OF FACT

1. Prior to May 4, 2020, the Veteran's headaches generally resulted in attacks less frequent than one in two months over the prior several months.

2. From May 4, 2020, the Veteran's headaches increased in severity such that characteristic prostrating attacks occurred on an average of once a month or more; he did not experience attacks which were completely prostrating and prolonged that were also productive of severe economic inadaptability.

3. The Veteran's psychiatric disability was manifested by symptoms resulting in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal).

4. The Veteran's sporadic dizziness was a symptom of his panic attacks and was compensated as part of his rating for acquired psychiatric disability; a separate compensable rating would violate the rules against pyramiding.

5. The evidence of record persuasively weighs against finding that the Veteran was unable to perform the mental and physical acts required to obtain or retain employment due solely to his service-connected disabilities.

CONCLUSIONS OF LAW

1. Prior to May 4, 2020, the criteria for a compensable rating for headaches are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.7, 4.14, 4.124a, Diagnostic Code (DC) 8100.

2. From May 4, 2020, the criteria for a 30 percent rating for headaches are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.7, 4.14, 4.124a, DC 8100.

3. The criteria for a rating higher than 30 percent for acquired psychiatric disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, DC 9432.

4. The criteria for a separate compensable rating for vertigo are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 4.14, 4.130.

5. The criteria for entitlement to a TDIU are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.16, 4.18, 4.19.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from September 1990 to May 1991 with additional service in the National Guard. The Veteran died in July 2020. The appellant is his surviving spouse who successfully substituted as appellant on claims pending at the time of his death.

In September 2023, the Board of Veterans' Appeals (Board) granted service connection for acquired psychiatric disability and remanded the issues of entitlement to service connection for headaches and vertigo. A September 2023 rating decision effectuated the September 2023 Board decision and rated the Veteran's acquired psychiatric disability as 30 percent disabling. Notice of the decision was sent in November 2023. An August 2024 rating decision found that vertigo was a symptom of the Veteran's panic attack and associated it with service-connected acquired psychiatric disability. Additionally, service connection for headaches was granted with a noncompensable rating.

In September 2024, the Appellant's attorney
appellant on claims pending at the time of his death.

In September 2024, the Appellant's attorney submitted VA Form 20-0996, Decision Review Requests: Higher-Level Review (HLR), and requested review of the September 2023 rating decision which effectuated the Board of Veterans' Appeals (Board) grant of service connection for acquired psychiatric disability. In January 2025, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal which considered the evidence of record at the time of the prior September 2023 rating decision and continued the 30 percent rating for the acquired psychiatric disability.

In July 2025, the Board received VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), wherein the Veteran appealed the August 2024 and January 2025 ratings decisions and elected Direct Review by a Veterans Law Judge. The Board may only consider the evidence of record at the time of the August 2024 rating decision on appeal with regard to the issue of entitlement to a compensable rating for headaches and a separate rating for vertigo. 38 C.F.R. § 20.301. With regard to the issue of entitlement to a rating higher than 30 percent for acquired psychiatric disorder, the Board may only consider the evidence of record at the time of the September 2023 decision, which was subsequently subject to higher-level review. 38 C.F.R. § 20.301.

If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the appellant would like VA to consider any evidence that was submitted that the Board could not consider, the appellant may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

Increased Ratings

Disability evaluations are determined by the application of the VA schedule for rating disabilities (rating schedule). 38 C.F.R. Part 4. The percentage ratings contained in the rating schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1.

Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999).

1. Entitlement to a compensable rating for headaches

The appellant seeks a compensable rating for headaches. The Board finds that the weight of the most probative evidence is against a compensable rating for headaches prior to May 4, 2020, but from that date forward, a 30 percent rating should be granted.

Headaches are rated pursuant to 38 C.F.R. § 4.124a, DC 8100 for migraines. A 50 percent rating is warranted for headaches with very frequent completely prostr
Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999).

1. Entitlement to a compensable rating for headaches

Headaches are rated pursuant to 38 C.F.R. § 4.124a, DC 8100 for migraines. A 50 percent rating is warranted for headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 30 percent rating is warranted for headaches with characteristic prostrating attacks occurring on an average once a month over last several months. A 10 percent rating is warranted for headaches with characteristic prostrating attacks averaging one in 2 months over last several months. A noncompensable rating is warranted for headaches with less frequent attacks. 38 C.F.R. § 4.124a, DC 8100.

The rating criteria do not define "prostrating;" nor has the Court. Cf. Fenderson v. West, 12 Vet. App. 119 (1999) (in which the Court of Appeals for Veterans Claims quoted Diagnostic Code 8100 verbatim but does not specifically address the matter of what is a prostrating attack). By way of reference, the Board notes that according to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "prostration" is defined as "complete physical or mental exhaustion." A very similar definition is found in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1554 (31st Ed. 2007), in which "prostration" is defined as "extreme exhaustion or powerlessness."

As to the term "productive of economic inadaptability," such term could have either the meaning of "producing" or "capable of producing" economic inadaptability. Pierce v. Principi, 18 Vet. App. 440, 445 (2004).

Words such as "very frequently" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6.

The rating criteria under DC 8100 are successive, meaning that a claimant cannot fulfill the criteria of the higher rating without fulfilling those of the next lower rating. Johnson v. Wilkie, 30 Vet. App. 245, 247 (2018).In that decision, the Court of Appeals for Veterans Claims also found that the phrase "characteristic prostrating attacks" plainly describes migraine attacks that typically produce powerlessness or a lack of vitality. Id. at 252.

VA treatment records reflect Veteran generally denied headaches during the period on appeal. At a January 2018 preoperative evaluation, the Veteran denied headaches. On a December 2018 Oswestry Neck Disability Index, the Veteran's headaches were rated 1 out of 5, indicating slight, infrequent headaches. December 2017 and January 2018 orthopedic clinic notes denied headaches. A January 30, 2018, preoperative note also states that he denied any headaches or vision changes. He denied headaches as part of psychiatric clinic visits in May 2018, July 2018, October 2018 and January 2019. In April 2019, at a sleep medicine consultation he denied headaches on awakening.

On May 4, 2020, the Veteran presented for a pain management visit, the Veteran reported an increase in headaches of unclear origin. On May 12, 2020, he reported throbbing headaches accompanied by an increase in blood pressure, requiring him to lay down for a while. On July 6, 2020, the Veteran presented for treatment of a cardiac condition with frequent episodes of increased blood pressure lasting minutes to hours. Treatment notes from that time reflect that chest pain caused the Veteran's blood pressure to increase resulting in "significant headaches," for which he was taking 9000 mg of Tylenol per day. The Veteran was hospitalized at that time. Overnight he continued to complain of chest pain, but denied shortness of breath, palpitations, headaches, nausea or vomiting.

For her part, the appellant has not provided any specific lay evidence or narrative regarding the severity and frequency of the Veteran's headaches prior to his death.

The Board finds that prior to May 4, 2020, the medical evidence shows that the Veteran
, the Veteran presented for treatment of a cardiac condition with frequent episodes of increased blood pressure lasting minutes to hours. Treatment notes from that time reflect that chest pain caused the Veteran's blood pressure to increase resulting in "significant headaches," for which he was taking 9000 mg of Tylenol per day. The Veteran was hospitalized at that time. Overnight he continued to complain of chest pain, but denied shortness of breath, palpitations, headaches, nausea or vomiting.

For her part, the appellant has not provided any specific lay evidence or narrative regarding the severity and frequency of the Veteran's headaches prior to his death.

The Board finds that prior to May 4, 2020, the medical evidence shows that the Veteran's headache episodes were not manifested by the frequency, duration, or severity to support a compensable evaluation. Prior to that date, the Veteran's headaches were generally infrequent and did not result in prostrating attacks of pain. Indeed, he generally denied headaches, or if present, found to be slight and infrequent in nature. Thus, the Board does not find a basis to grant a compensable rating prior to May 4, 2020.

Beginning May 4, 2020, the Veteran's headaches increased in severity. His headaches were described as "frequent," lasting between seconds and several hours, and requiring him to lay down to recover. To this extent, the Board does find that those headaches did likely result in prostrating attacks of pain and occurred at such a frequency that a 30 percent rating is appropriate. The Board does not find that they were "completely prostrating" or that they were productive of severe economic inadaptability. Rather, the Veteran reported during that time that he was capable of completing housework. Further, to the extent that he was required to lay down during an episode, the medical evidence suggests that his need to rest was less due to his headaches than his increased cardiac activity and blood pressure. As such, while the Board will grant a 30 percent rating from May 4, 2020, it declines to grant a rating in excess of 30 percent during this period.

Accordingly, prior to May 4, 2020, the claim for a compensable rating is denied. As the evidence of record persuasively weighs against the claim, the benefit-of-the-doubt rule does not apply. From May 4, 2020, a 30 percent rating but no higher is granted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

2. Entitlement to a rating higher than 30 percent for acquired psychiatric disorder

The Appellant seeks a rating higher than 30 percent rating for the Veteran's acquired psychiatric disorder. The Board finds that the claim should be denied.

Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013).

The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 50 percent or higher for the period on appeal.

The Veteran's bipolar disorder and unspecified anxiety disorder to include vertigo, is rated under the General Formula for Mental Disorders. It provides as follows:

A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). See 38 C.F.R. § 4.130, DC 9432.

A 50 percent rating is assigned when symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (
percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). See 38 C.F.R. § 4.130, DC 9432.

A 50 percent rating is assigned when symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. Id.

A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Id.

A 100 percent rating is assigned when symptoms such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. Id.

VA treatment records beginning July 2014 reflect the Veteran reported irritability, poor sleep, depression, chronic anxiety, panic attacks with severe weather, intermittent issues with interest and motivation, fair concentration and appetite, and good memory. An August 2014 VA treatment note reflects the Veteran reported nausea and dizziness as side effects of increased mental health medications. The Veteran was usually alert and oriented to person, place, and time with grossly intact memory. Mood was generally anxious with appropriate affect, intact judgment, good insight and normal, organized thoughts. The Veteran reported no homicidal or suicidal ideation. He reported taking care of things around the house, participating in church, and finding enjoyment in his grandchildren and working in his garden.

At a January 2017 appointment, the Veteran reported having four panic attacks over the period of a month and a half, which he believed was due to the fact he had quit smoking, but felt he was otherwise doing well overall.

Throughout his periods of treatment, the Veteran reported symptoms of panic attacks included shortness of breath, insomnia, increased heart rate, and feeling "like he was dying." In May 2019, the Veteran was diagnosed with sleep apnea.

A July 2017 VA examination reflects a diagnosis of unspecified depressive disorder. The examiner noted that, although the Veteran had been diagnosed with bipolar disorder at VA and other facilities, there was no clear history of hypomanic/manic episodes per review of treatment notes and the Veteran's self-report during this exam. The Veteran reported a "good marital relationship" and being on good terms with his sons, who he visited quarterly, and his two surviving sisters. He had a few friends but tended not to feel like accepting their invitations to visit. He was also active in church and would soon lead a class for men with a history of substance abuse. At the time of examination, the Veteran reported psychiatric symptoms manifested by depression, irritability, less enthusiasm to engage in previously enjoyed activities, variable energy, a tendency to lose track of needed items and sometimes forgetting things his wife requested from the store, and poor, interrupted sleep. He indicated that his IBS interfered with his appetite. The Veteran denied suicidal or homicidal ideation. The examination report found that the Veteran's acquired psychiatric disorder was manifested by depressed mood, anxiety, chronic sleep impairment, and mild memory loss. These symptoms were noted to cause occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.

VA treatment records and the July 2017 VA examination reflect that the Veteran's acquired psychiatric disability was manifested by depressed mood, anxiety, infrequent panic attacks, sleep impairment, and mild memory loss. He also reported symptoms of irritability, variable energy, and less enthusiasm to engage in previously enjoyed activities. The evidence suggest that the Veteran generally functioned satisfactorily with routine behavior and self-care, normal
his IBS interfered with his appetite. The Veteran denied suicidal or homicidal ideation. The examination report found that the Veteran's acquired psychiatric disorder was manifested by depressed mood, anxiety, chronic sleep impairment, and mild memory loss. These symptoms were noted to cause occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.

VA treatment records and the July 2017 VA examination reflect that the Veteran's acquired psychiatric disability was manifested by depressed mood, anxiety, infrequent panic attacks, sleep impairment, and mild memory loss. He also reported symptoms of irritability, variable energy, and less enthusiasm to engage in previously enjoyed activities. The evidence suggest that the Veteran generally functioned satisfactorily with routine behavior and self-care, normal conversation and thought processes, fair judgment and insight, and had no hallucinations or delusions. VA treatment records indicate that the Veteran had been married for over 13 years, was close to his family, and attended church regularly, which is indicative of minimal social impairment.

A July 2021 statement from the Veteran's sister reflects he was never the same after his return from Desert Storm. She described the Veteran as withdrawn, difficult to be around, angry, uptight and paranoid at the time. Their relationship was mended while the Veteran lived with her following his divorce from his first wife. During that time, she noticed the Veteran had trouble sleeping, would exhibit stress if things were out of place, and "could have outbursts." The statement does not describe the Veteran's symptoms with any specificity regarding frequency or severity and is vague as to the timeframe discussed. Notably, the statement seems to describe symptoms immediately following the Veteran's separation from service in 1994 and the period after his divorce in 2005 and prior to his second marriage in 2006. As the period described is over a decade before the Veteran's claim, the Board finds that the July 2021 statement submitted by the Veteran's sister is inadequate to determine the severity of the Veteran's symptoms during or near to the appeal period.

The Appellant also reported that the Veteran's anxiety worsened as time went on putting the Veteran on high alert during storms and when the neighbor used his gun range. He avoided crowds, was vigilant, and often traveled to gatherings separately so he could leave when he felt the need. The Veteran was often stressed and struggled with nightmares and sleep. When changing medication, he was irritable and difficult to be around. The Appellant reported the Veteran's panic attacks also worsened as he aged. She noted an instance four years prior during which the Veteran had "experienced 2-3 panic attacks in a row, that came on out of nowhere." The Veteran also had "a lot of days where he was having trouble finding motivation." The Appellant reported that he would sometimes spend 12-16 hours in bed. The Board accepts that the Appellant is competent to report her observations. However, to the extent that her statements differ significantly from the Veteran's statements made in furtherance of treatment, the Board assigns greater probative value to statements made by the Veteran in furtherance of treatment, as well as the medical examination reports of the Veteran conducted in person.

The Appellant has also submitted an August 2021 a VA mental disorders examination report, which appears to be completed by a private physician, into the record. The private examination reflects that diagnoses of unspecified bipolar disorder and unspecified anxiety disorder caused occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examination report notes the Veteran had been married three times (divorced twice) and was living with his current wife for several years before his death. He had participated in intermittent outpatient therapy. The examination report found that the Veteran's acquired psychiatric disorder was manifested by depressed mood, anxiety, panic attacks that occur weekly or less, near-continuous panic or depression, chronic sleep impairment, mild memory loss, impairment of short and long term memory, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, and impaired impulse control. He was found to be capable of managing his own finances.

The Board notes that the private medical opinion was procured in support of the claim for service connection for acquired psychiatric disorder. Review of these specific records was noted in rendering an opinion: October 2015 December 2016, January 2017, and May 2018 VA treatment notes; July 2017 VA examinations for mental health and IBS, a June 2013 decision of the Social Security Administration; the Veteran's April 1991 separation examination, and "the Vet's story and mental questionnaire" is noted in the opinion. Id. at 208-209. Statements from the Appellant and the Veteran's sister were summarized in the report. Additionally, the Appellant was interviewed and "detailed [the Veteran's] mental health struggles throughout their marriage." Id at 206. The evidence tends to support that "the Vet's story" relates to the Veteran's statements submitted in support of his claim for service connection; and, as the Veteran is deceased, the "mental questionnaire" was provided/completed by the Appellant. Id at 209. The clinician concluded that unspecified bipolar disorder and unspecified anxiety disorder began in service and continued uninterrupted and in the same severity since. The opinion documented the Appellant's report that the Veteran was frequently noncompliant with his medication after his initial diagnosis and the symptoms of his acquired psychiatric disorder during that period. As he increased compliance, the Veteran had increased anxiety, particularly during storms, and panic attacks. Prior to his death, the Veteran had declining motivation and was unable to complete projects.

The Board finds that the August 2021 medical opinion has minimal probative value as to establishing severity, frequency, and duration of the Veteran's psychiatric disability during the period on appeal. Specifically, that medical examination report and opinion were completed over a year after the Veteran's death and appears to be predicated entirely on medical history. It identifies symptoms in general terms but provides no specificity regarding timing, frequency, or severity of the Veteran's symptoms. For instance, much of the documentation regarding symptomatology focuses on the period before the Veteran became more compliant with his medications. VA treatment records reflect that, at a December 2011 initial psychiatric evaluation, the Appellant and Veteran reported that the Veteran had been noncompliant with medication for 10 years prior. This period is well outside the period on appeal and cannot provide clarity as to the Veteran's symptomatology at or near the filing of his claim in 2018 or during the period prior to his death in 2020. Though the private examination report and medical opinion reflected review of the Veteran's claims file, the opinion does not reflect any meaningful discussion of the Veteran's overall medical or social history (i.e., his reportedly good relationships with his children, grandchildren and a few friends; his participation in church and group therapy) and ignores treatment records from 2018 until the Veteran's death, which is paramount to the Veteran's actual disability level during the period on appeal

Neither medical nor lay evidence reflects the Veteran experienced suicidal ideation. Bankhead v. Shulkin, 29 Vet. App. 10 (2017).

This overall does not demonstrate that the Veteran's psychiatric symptomatology resulted in reduced productivity such that a rating in excess of 30 percent was appropriate. Rather, the Board finds that his symptoms resulted in occupational and social impairment with occasional decrease in productivity or efficiency, and only intermittent periods of inability to perform occupational tasks. Rather, the Veteran generally functioned satisfactorily with routine behavior, self-care, and was capable of normal conversation. Accordingly, the Board finds that for the period on appeal, the severity, frequency, and duration of the Veteran's unlisted symptoms more closely approximate the symptoms contemplated by a 30 percent rating. See 38 C.F.R. § 4.126.

To the extent that some symptoms experienced by the Veteran which are noted as being indicative of a rating in excess of 30 percent, such as disturbances of motivation and mood, and impairment of short term memory were reported, the "such symptoms as" language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means "for example" and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, as the Court also pointed out in that case, "[w]ithout those examples, differentiating a 30% evaluation from a 50% evaluation would be extremely ambiguous." Id. The Court went on to state that the list of examples "provides guidance as to the severity of symptoms contemplated for each rating." Id. Accordingly, while each of the examples needs not be proven in any one case,
38 C.F.R. § 4.130 means "for example" and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, as the Court also pointed out in that case, "[w]ithout those examples, differentiating a 30% evaluation from a 50% evaluation would be extremely ambiguous." Id. The Court went on to state that the list of examples "provides guidance as to the severity of symptoms contemplated for each rating." Id. Accordingly, while each of the examples needs not be proven in any one case, the particular symptoms must be analyzed in light of those given examples. Put another way, the severity represented by those examples may not be ignored.

Thus, the Board finds that for this period the Veteran did not have occupational and social impairment with reduced reliability and productivity. He did have deficiencies, but the greater weight of evidence demonstrates that it is to a degree that is contemplated by the 30 percent rating already assigned. Furthermore, even resolving any reasonable doubt in the Appellant's favor, the Board finds that he did not meet the requirements for an evaluation greater than the now assigned 30 percent schedular rating during this period. To the extent that the Veteran has any of the criteria for a 50 percent rating or greater, see Mauerhan, 16 Vet. App. at 442, the Board concludes that his overall level of disability does not exceed the criteria

As the evidence of record persuasively weighs against a rating higher than 30 percent, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

3. Entitlement to a separate rating for vertigo

The appellant seeks a rating for vertigo (dizziness) which is separate and distinct from the Veteran's rating for a bipolar disorder and unspecified anxiety disorder.

The Board concludes that a separate compensable rating for vertigo is not warranted. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 4.14, 4.130.

In general, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14. It is well-established that a veteran may not be compensated twice for the same symptomatology as "such a result would over compensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. An exception to this rule is when a veteran has separate and distinct manifestations attributable to the same injury-in such circumstances, he should be compensated under different Diagnostic Codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). VA is precluded from differentiating the symptoms of the Veteran service-connected disorder and any other psychiatric symptoms in the absence of clinical evidence that clearly shows such a distinction. See Mittleider v. West, 11 Vet. Ap. 181, 182 (1998).

In August 2014, he reported dizziness, nausea, and diarrhea due to an increase in his psychiatric medication that had resolved when he decreased the dose. No further complaints of or treatment for dizziness are included in the claims file. April 2024 VA medical opinion reflects that certain anxiety disorders, including panic attacks, may cause lightheadedness or a woozy feeling often referred to as dizziness. The examiner opined it was at least as likely as not the Veteran's vertigo/dizziness was caused by the Veteran's acquired psychiatric disability. The Board finds this opinion persuasive as it was given by a medical specialist in contemplation of the complete medical record and applied the facts of this case to known medical principles.

Here, the Veteran's dizziness is a symptom associated with his panic attacks and he was compensated for panic attacks under his current disability rating for an acquired psychiatric disability. Neither the lay nor the medical evidence reflects continuous symptoms of dizziness which could potentially be separately rated and the medical evidence of record supports the conclusion that dizziness is exclusively related to the service-connected psychiatric disability. Therefore, a separate compensable rating for dizziness would constitute impermissible py
it was at least as likely as not the Veteran's vertigo/dizziness was caused by the Veteran's acquired psychiatric disability. The Board finds this opinion persuasive as it was given by a medical specialist in contemplation of the complete medical record and applied the facts of this case to known medical principles.

The Board is left with no sound basis to consider the matter on appeal. Again, a separate compensable rating for vertigo would constitute impermissible pyramiding and is prohibited by law.

Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b).

4. Entitlement to TDIU

The August 2021 private medical examination reflects the Veteran was last employed in 2010. As it specifically examines the effect the Veteran's service-connected IBS and acquired psychiatric disability would have had on employment, the Board finds that the issue of entitlement to a TDIU is raised by the record. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009).

A total disability rating based upon individual unemployability may be assigned where the schedular rating is less than total. A total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a).

Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16. The existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met. 38 C.F.R. § 4.16(a).

The Board is cognizant of the recent holding in Witkowski v. Collins, No. 24-0640 (Vet. App. Oct. 21, 2025) that states 38 C.F.R. § 4.16(b)'s requirement of referral to the Director of Compensation Service does not apply to the Board and the Board may assign a TDIU on an extraschedular basis in the first instance. Therefore, the Board will consider whether the Veteran's service-connected disabilities rendered him unable to obtain or maintain substantially gainful employment. The central inquiry is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Board must evaluate whether there are circumstances in the veteran's case, apart from any non-service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

The term "unable to secure and follow a substantially gainful occupation" is defined as having two components: one economic and one non-economic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Ray v. Wilkie ,31 Vet. App. 58, 73 (2019). The ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one but rather a determination for the adjudicator. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a
consideration of the veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Ray v. Wilkie ,31 Vet. App. 58, 73 (2019). The ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one but rather a determination for the adjudicator. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner."). "Employment in a protected environment" within 38 C.F.R. § 4.16(a) means "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." LaBruzza v. McDonough, 37 Vet. App. 111, 123-24 (2024).

The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough to support a grant of TDIU; the question is whether the claimant is able to perform the physical and mental acts required by employment. Smith v. Shinseki, 647 F.3d 1380, 1385 (Fed. Cir. 2011). All reasonable doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3.

A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993).

Prior to May 4, 2020, the Veteran had a combined disability rating of 60 percent based on a 30 percent rating for IBS, 30 percent for acquired psychiatric disorder, 10 percent for bilateral hearing loss, 10 percent for tinnitus, and noncompensable ratings for erectile dysfunction and headaches. See Rating Decision - Codesheet (January 2025); 38 C.F.R. § 4.16(a).

Beginning May 4, 2020, the Veteran had a combined disability rating of 70 percent based on a 30 percent rating for IBS, 30 percent for acquired psychiatric disorder, 30 percent for headaches, 10 percent for bilateral hearing loss, 10 percent for tinnitus, and a noncompensable rating for erectile dysfunction. See 38 C.F.R. § 4.16(a).

The Board concludes that the evidence of record persuasively weighs against a finding that the Veteran met the objective, minimum percentage requirements for a TDIU or that service-connected disabilities rendered him unable to perform the mental and physical acts required to obtain or retain employment due solely to his service-connected disabilities. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. At no time during the appeal period did the Veteran have at least one disability ratable at 40 percent or more. As such, he did not meet the requirements for a TDIU, as set forth in 38 C.F.R. § 4.16(a).

While the Veteran did not meet the schedular criteria for a TDIU, 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. 38 C.F.R. § 4.16(b).

The evidence reflects the Veteran worked offshore as a platform operator, for roughly four years then as a lab technician for 10 years before being terminated for insubordination. He reported being verbally counseled for absences during his time as a lab technician as he sometimes missed work or left early due to depression. He reported that he had received payments under the Social Security Disability Insurance program for five years for arthritis in his back and neck issues.

A March 2012 Social Security Administration medical report reflects the Veteran had nonservice-connected cervical spine herniated disc, low back spine disorder, arthritis of hips and knees, mitral valve prolapse, and hypertension. The clinician opined that the Veteran's ability to sit, stand, walk, lift, carry, bend, squat, and kneel was impaired by back pain and right knee and hip pain. However, his ability to reach, see, hear, speak, understand, and manipulate small objects remained unimpaired. At VA examinations, the Veteran reported that nonservice-connected neck conditions hurt all the time and made it difficult to shave, drive, look at the computer at work, look up and do overhead work and drive for prolonged periods. The August 2021 private medical opinion reflects that the Veteran would likely have had difficulty interacting effectively and appropriately with co-workers and supervisors, have been easily agitated in response to daily fluctuations in workload or expectations around productivity, be prone to making mistakes, and would have needed multiple restroom breaks which may have slowed his productivity.

Based on the medical evidence and the reports of both the Veteran and the Appellant, the Veteran demonstrated that he was still able to lift, carry, push, and pull; and his service-connected disabilities alone have not precluded him from performing the physical and/or mental acts required to obtain or retain substantially gainful employment.

Medical records and the Veteran's lay statements document that the Veteran was not precluded from employment due to service-connected disability. The evidence reflects the Veteran completed household chores and worked on a variety of projects around his home and at his church. He built kennels and fencing for the Appellant's business, led a class at his church, and, as recently as May 2020, two months prior to his death, lay down new floors in his home. A July 2020 VA treatment note reflects that "at baseline [the Veteran] can lift 40 lb bags to tile floors."

The record generally reflects that the Veteran was not incapable of obtaining and maintaining gainful employment due exclusively to service-connected disability. Rather, the evidence shows that the Veteran was in receipt of disability payments from the Social Security Administration due to the impact of nonservice-connected disability. Individual unemployability must be determined without regard to any nonservice-connected disabilities. 38 C.F.R. §§ 3.341(a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993).

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In denying the Veteran's TDIU claim, the Board has considered the Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue under 38 C.F.R. § 4.16(b). The Board concludes that the evidence supporting an award of a TDIU rating based on unemployment is outweighed by all of the negative evidence of record discussed above and the requirements of 38 C.F.R. § 4.16.

In sum, the Board finds that the evidence of record does not show that the Veteran was precluded from securing or following substantially gainful employment as a result of his service-connected disabilities in order to warrant TDIU. As such, the weight of the evidence is against the Veteran's claim, and the benefit of the doubt rule does not apply. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

M. Pryce

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board C. Edwards, 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.

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