10-48 341
10-48 341
| Board of Vet. App. | Sep 27, 2017Background
- Veteran served on active duty July 1988–July 1991 and appealed RO rating decisions to the Board of Veterans' Appeals.
- Claims on appeal: service connection for an esophageal tear; increased rating for migraine headaches (current 30% under DC 8100); entitlement to TDIU.
- VA previously remanded esophageal-tear claim (Feb 2014); RO later granted service connection for an unspecified depressive disorder (Sept 2016), removing that issue from appeal.
- Medical evidence includes VA DBQs (Sept 2014, Nov 2016), treatment notes, and a Sept 2016 private vocational opinion; combined schedular rating totaled 90% (including 70% for depressive disorder and 30% for migraines).
- Board credited VA examiners for migraine frequency/impact and the private vocational expert for functional limitations; found migraines averaged about once monthly and were not "very frequent" or productively disabling to the degree required for a 50% rating.
- Board found, resolving reasonable doubt in veteran’s favor, that service-connected disabilities in combination rendered him unable to secure and follow substantially gainful employment (granted TDIU). Esophageal-tear claim remanded for additional testing (current EGD) per prior remand directives.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to service connection for an esophageal tear | Veteran asserts ongoing reflux, nausea, vomiting, occasional hematemesis consistent with prior in-service tear | RO/VA relied on prior normal EGD (Jan 2013) and DBQ; contended no current evidence of tear | REMANDED for adequate VA exam and current testing (including EGD) per prior remand directions |
| Increased rating >30% for migraine headaches (DC 8100) | Migraines cause chronic daily symptoms, weekly prostrating headaches, photophobia/phonophobia, vomiting — argue for higher rating up to 50% | VA points to exam findings showing prostrating attacks about once a month, not ‘‘very frequent’’ or productive of severe economic inadaptability | DENIED: evidence shows attacks average once monthly; criteria for 50% not met |
| Entitlement to TDIU due to service‑connected disabilities | Veteran (and private vocational expert) argues combined service‑connected disabilities (notably 70% depression + others) prevent securing/following substantially gainful employment | VA earlier examiner (2013) suggested sedentary work possible, but that predated grant of 70% depressive disorder; RO relied on medical record and vocational analysis | GRANTED: resolving doubt for Veteran, combined service‑connected disabilities render him unable to secure/follow substantially gainful employment |
Key Cases Cited
- Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (grant of benefits by RO removes that issue from appellate status)
- Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (Board need not raise procedural arguments not asserted by appellant)
- Nieves‑Rodriguez v. Peake, 22 Vet. App. 295 (2008) (weight to examiner opinions tied to adequate rationale and supporting data)
- Pierce v. Principi, 18 Vet. App. 440 (2004) (economic inadaptability language in DC 8100 does not require total inability to work)
- Fenderson v. West, 12 Vet. App. 119 (1999) (requirement to consider staged ratings)
- Hart v. Mansfield, 21 Vet. App. 505 (2007) (discussion of staged rating methodology)
- Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) (Veteran need not show 100% unemployability to obtain TDIU)
- Stegall v. West, 11 Vet. App. 268 (1998) (requirement for substantial compliance with Board remand directives)