Citation Nr: 1104968 Decision Date: 02/07/11 Archive Date: 02/14/11 DOCKET NO. 05-17 130 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an initial rating in excess of 10 percent for a head injury above the right eye with residual headaches. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran had active service from April 1968 until January 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. This case was previously before the Board in December 2008 and August 2009 at which times the initial rating claim at issue was remanded. A review of the file reflects that there has been substantial compliance with the actions requested in those remands and the case has returned to the Board for appellate consideration. See also D'Aries v. Peake, 22 Vet. App. 97 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board's remand directives is required). A service connection claim for traumatic brain injury (TBI) has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT Throughout the appeal period, the Veteran's service-connected headaches associated with a head injury above the right eye, have not been productive of characteristic prostrating attacks occurring on an average once a month over the last several months. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for a head injury above the right eye with residual headaches, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 4.3, 4.124a, Diagnostic Code 8100 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the notice must include a discussion to the effect that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. This claim arises from the Veteran's disagreement with the initial disability rating following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The appellant bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008). That burden has not been met in this case. In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate claims for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2010). The Veteran's service treatment records (STRs) have been obtained as well as VA treatment records. The file also contains lay statements and arguments provided by the Veteran and his representative. VA examinations were conducted in 2004, 2009 and 2010, which assessed the manifestations associated with the Veteran's service connected head injury above the right eye with residual headaches. In a brief dated in December 2010, the Veteran's representative questioned the adequacy of the 2009 and 2010 examinations reports with respect to the medical findings made therein. Having reviewed those examinations report in full, the Board finds no inadequacies or any basis for the scheduling of a new examination or remand in this case. The 2009 and 2010 examinations were based upon consideration of the Veteran's reported medical history and symptomatology as well as findings made on physical examination. The reports describe the disability in sufficient detail so that the Board's evaluation of the service-connected disability will be a fully informed one. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). In essence, the representative's allegations of inadequacies appear to be primarily based on her disagreement with the findings made. As such, for purposes of this appeal, the VA examinations of 2009 and 2010 are not inadequate, and evidence of record contains sufficient competent medical evidence to decide the claim. Therefore neither a remand or another VA examination is warranted. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2010) [a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim]. To the extent that some of the arguments made in 2010 by the Veteran's representative pertain to the adequacy of the 2010 examination report as relates to a raised service connection claim for TBI, that claim is not before the Board in appellate status and the matter will therefore not be further discussed. Accordingly, the Board finds that under the circumstances of this case, VA has satisfied the notification and duty to assist provisions of the VCAA and that no further actions need be undertaken on the Veteran's behalf. All appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2010). Factual Background In a rating action dated in December 2004, service connection was established for a head injury above the right eye with residual headaches, for which an initial 10 percent disability rating was assigned effective from November 14, 2004. The grant was based on STRs as well as findings made upon VA examinations of May 2002 and November 2004. The STRs include an undated entry indicating that the Veteran was hit in the eye with a cable. On examination, vision was good and no hyphema was present. The injury was treated with an eye patch. The 2002 VA examination report reflects that the Veteran gave a history of being struck in the right eye area in 1968 by a rope made of wire an steel. He reported having a huge headache immediately following the injury with chronic headaches thereafter. On examination, he indicated that he experienced daily headaches lasting 3 to 4 hours, estimated as 10/10 on a pain scale. It was noted that the Veteran had worked as a groundskeeper for a major league baseball team from 1970 to 1990, but gave up the job partially due to headaches and other problems, as well as the fact that he had put his time in for retirement. He indicated that the headaches were very debilitating in terms of working, and noted that sitting and resting alleviated the headaches. Neurological examination was normal. Chronic daily tension headaches were diagnosed and the examiner opined that these were more likely to be complicated by excessive analgesis use, as opposed to being secondary to remote trauma. The examiner also mentioned that as there was evidence of possible excessive alcohol use and thyroid dysfunction, these might also be factors in the development of headaches. The Board also notes that an eye examination was conducted in April 2002 at which time a diagnosis of refractive error with presbyopia, unrelated to any other systemic conditions was made. Upon VA examination of November 2004, the Veteran again gave an account of the injury in service, with symptoms of dizziness and blurred vision since that time. He also complained of severe headaches since 1969. The report reflected that after working as a groundskeeper, he obtained certification to become a class 8 truck driver, but let the certification lapse in 1992 due to "poor depth perception" and hadn't worked as a truck driver since. It was noted that the headaches occurred twice a month, until medication was prescribed in about 2001, which reduced the frequency to every other month. The report stated that photophobia accompanied the headaches, without manifestations of phonophobia or nausea. It was noted that the Veteran could continue with his tasks during a headache. The diagnoses included post-concussion headaches, which the examiner describe as infrequent, brief non-prostrating headaches dating to a head injury in 1969. The examiner concluded that the headaches were likely due to the service injury. The examiner also noted that the Veteran had experienced poor depth perception for 15 years and had been unsteady on his feet for 5 years. The examiner indicated that the Veteran's diagnosed medical conditions included diabetes mellitus Type II and indicated that these symptoms were often described in this way by diabetics and were likely due to diabetes in the Veteran's case. VA records include an entry dated in March 2004 mentioning that the Veteran had fallen on the ice at work. An entry dated in November 2004 indicated that test findings revealed that the Veteran was likely diabetic. In December 2004, the Veteran complained of light-headedness, constant fatigue, and a 2 month history of blurred vision. At that time he denied having headaches. Records dated in January 2005 indicate that diabetes mellitus had been recently diagnosed. In a February 2005 statement, the Veteran provided additional information to the effect that in November 2004, he had told the VA examiner that his headaches, blurred vision, and dizziness occurred at least 1 to 3 times a month, not every other month, and last from 3 to 4 days at a time. He also mentioned that he had never been on medication for diabetes and that testing conducted by VA in December 2004 had been negative for diabetes. VA records dated from January 2005 to July 2008 reflect that the Veteran was seen on numerous occasions during that period, but at no time did he complain of headaches. A September 2006 record indicated that the Veteran denied having headaches. Headaches were mentioned in those records by way of medical history. A VA examination was conducted in October 2009. At the time of the examination, the claims file was not available for review, but was reviewed in November 2009, following which the examiner noted that there was no basis for any change in the examination report following review of the claims file. A history consistent with that previously reported was recorded. The Veteran stated that he had multiple, daily headaches lasting 3 to 4 hours, estimated as 10/10 on a pain scale. He explained that he sometimes saw blue or black dots associated with the headaches which did not affect his vision. It was noted that Indomethacin and sitting and resting relieved the headaches. The Veteran indicated that the headaches were very debilitating in terms of work (explaining that he did not work anymore due to having to take constant breaks), but did not interfere with his daily activities. He also reported that he was able to perform at best only 10% of the activities which he used to do prior to his headaches. The examiner made a specific finding to the effect the headaches were not prostrating in nature. On examination, there was essentially no evidence of neurological impairment associated with the headaches. The examiner noted that sensory testing by pin prick was reported as only 20% over the V1, V2 and V3 regions of the face compared to the left side. However, when testing was performed with the Veteran's eyes closed, reaction on the right and left sides were comparable. The examiner concluded that the manifestations and severity associated with the headaches had not appreciably changed since being evaluated in 2002. The examiner also observed that it was at least as likely as not that the headache were tension type. A VA examination for traumatic brain injury was also conducted in January 2010. Again the Veteran provided a history of head trauma injury in service and reported having headaches since that time. It was noted that the Veteran had an aura of nausea for a few minutes prior to having some headaches. He reported that he had a headache almost every day, but had not had any during the previous week. He indicated that his headaches always occurred on days when he's worked or was working, and that they did not last for more than 2 hours. He indicated that he couldn't read or drive while having a headache and noted that he had blurred vision associated with the headaches. The diagnoses included: obesity; Type II diabetes mellitus with stocking-glove sensory neuropathy; early Alzheimer's type senile dementia; status post remote closed head injury with sub-conjunctival hemorrhage in the right eye; and tension headaches secondary to the closed head injury. The examiner indicated that there was no evidence that the Veteran lost consciousness or sustained a scalp laceration when the rope hit him in the eye during service and noted that to the extent that the Veteran was hit in the right eye by a rope in service, there was no serious injury sustained as a result. In a statement provided in July 2010, the Veteran indicated that he has suffered from headaches since the injury in service, which had escalated to the point where he was unable to function and had to lay down and wait for them to pass. He indicated that this had occurred every month, once or twice a month for the last 8 years and added that at first, the severe headaches only occurred 2 to 3 times a year. Analysis The Veteran contends that his service-connected head injury above the right eye with residual headaches warrants an initial evaluation in excess of 10 percent. Disability ratings are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and there must be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.1. The Board attempts to determine the extent to which the Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2010). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2010). The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that the rule from Francisco does not apply where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for a disability. Rather, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. More recently, the United States Court of Appeals for Veterans Claims (Court) held that "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's service-connected head injury above the right eye with residual headaches has been assigned an initial 10 percent disability rating for the entirety of the appeal period extending from November 17, 2004, pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2010). The provisions of 38 C.F.R. § 4.124a, Diagnostic Code 8100, provide for a 50 percent rating for migraine with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 30 percent rating is assigned for migraine with characteristic prostrating attacks occurring on an average once a month over last several months. Id. A 10 percent rating is provided for migraine with characteristic prostrating attacks averaging one in 2 months over last several months. The rating criteria do not define "prostrating;" nor has the Court. Cf. Fenderson v. West, 12 Vet. App. 119 (1999) (in which the Court quotes 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 WEBSTER'S NEW WORLD DICTIONARY OF AMERICAN ENGLISH, THIRD COLLEGE EDITION (1986), p. 1080, "prostration" is defined as "utter physical exhaustion or helplessness." A very similar definition is found in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th Ed. 1994), in which "prostration" is defined as "extreme exhaustion or powerlessness." In order to be entitled to a higher initial rating to 30 percent, the evidence must show that the Veteran has characteristic prostrating attacks from his headaches, occurring on an average once a month over the last several months. Having evaluated both the lay and clinical evidence presented for the record, the Board cannot conclude that the criteria for the assignment of a 30 percent evaluation have been met for any portion of the appeal period. Essentially, the most probative evidence in this case simply does not show that the Veteran has had prostrating headaches with the specified frequency. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In summary, the clinical evidence in this case is entirely negative for documentation of any episodes of prostrating headaches. In this regard, VA examinations of 2004 and 2009 made specific findings to the effect that the Veteran's headaches were not prostrating in nature, and the file contains no clinical opinion or evidence to the contrary. VA outpatient records dated from 2004 to 2008 are similarly negative for any mention of or treatment for a prostrating headache. In fact, those records are negative for any headache treatment, or complaints of headaches, and reflect that on at least two occasions (2004 and 2006), the Veteran denied having any headaches at all. In contrast are the Veteran's lay statements to the effect that he has experienced headaches assessed as 10/10 in severity "every" day for eight years, escalating to the point that he is unable to function and has to lay down and wait for them to pass. The Veteran's representative maintains that the fact that the Veteran has to sit and rest when he has headaches is a testament to the severity of the condition, warranting an increased evaluation. On the contrary, prostratation does not contemplate merely resting; impairment to a degree of "extreme exhaustion or powerlessness" must be shown. With respect to the Veteran's report that he was able to perform at best only 10% of the activities which he used to do prior to his headaches, it is clear that he has several serious co-existing medical conditions in addition to headaches, including obesity, diabetes with stocking-glove sensory neuropathy; and early Alzheimer's type senile dementia, all of which contribute to his overall impairment due to disability. To the extent that the Veteran has contended that his headaches are prostrating in nature, in light of the complexity of the evidence in this case which is reflective of several medical conditions productive of impairment and contributing to the overall disability picture, it is well-established that laypersons without medical training, such as the Veteran, are not competent to comment on medical maters such as diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). As such the clinical determination made by qualified medical professionals on two occasions (2004 and 2009) to the effect that the headaches/headache disability themselves/itself were not prostrating in nature are considered far more probative evidence than the Veteran's lay statements on this matter. In addition, in this case, the Veteran's contentions regarding both the frequency and severity of his headaches lack credibility. The Board observes that contrary to the Veteran's lay assertions, clinical records reflect that the Veteran does not have headaches every day, as he actually denied having them on at least 2 occasions and has consistently failed to mention any such active symptoms as shown by VA records dated from April 2004 to July 2008, despite having been seen on dozens of occasions during that time. The Board finds it particularly significant that the Veteran has not sought regular or in fact any, VA outpatient treatment for his headaches during the appeal period. See Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). Significantly, when evaluated in 2009, the examiner concluded that the manifestations and severity associated with the headaches had not appreciably changed since being evaluated in 2002, nor do the outpatient records reflect any increase in severity. Further, it strains credibility to believe that at no time during the appeal period has there been any medical documentation or treatment for a severe/prostrating headache episode, given the Veteran's reported severity and frequency of such headaches. A VA record dated in 2004, as well as the 2010 VA examination report reflect that the Veteran is still employed, which is entirely inconsistent with his reports of daily headaches of such severity that he is unable to function, and is contrary to information provided upon VA examination of 2009, at which time the Veteran indicated that he could no longer work due to headaches and the constant breaks that condition required. In addition, he has failed to provide any medical evidence or evidence from his employer (leave statements, sick slips) which in any way substantiates his assertions that his headaches are prostrating or otherwise interfere with his ability to function in either his job or in his activities of daily living. Significantly, the Board notes that upon VA examinations of 2004 and October 2009, the Veteran indicated that his headaches did not interfere with his daily activities. However, just months later, the Veteran provided an inconsistent account during a 2010 VA examination to the effect that he couldn't read or drive while having a headache. Having assessed the credibility and probative value of the evidence overall, the Board finds that the clinical evidence in this case is far more reliable and consistent than the lay information provided by the Veteran. The clinical evidence fails to substantiate the occurrence of even one prostrating headache episode during the appeal period. In contrast, the Veteran's self-interested statements in this regard not only include some inconsistencies, but are being made during the course of his claim/appeal for monetary benefits. The Board has taken these matters into consideration in assessing the Veteran's credibility and probative value of the evidence presented. Caluza v. Brown, 7 Vet. App. 498 (1995). The evidence of record does not support a rating in excess of 10 percent for headaches under Diagnostic Code 8100. Although the Veteran complains of frequent headaches, he has not met the criteria for a 30 percent rating at any time during the appeal period. The applicable rating criteria link ratings for headaches to the following two elements: severity and frequency. It is not sufficient to demonstrate the existence of a particular frequency of headaches; the headaches must be of a specific prostrating character. As explained herein, the most probative evidence on record does not indicate that the Veteran's headaches are prostrating. The Board has also considered whether there are any other residuals/manifestations of the Veteran's head injury which warrant a separate/additional evaluation. In this regard, the Veteran has complained of blurred vision associated with his headaches; however this manifestation has been diagnosed as refractive error, unrelated to the head injury. There have essentially been no neurological findings made related to the head injury. There is no indication of any visible scarring associated with the injury. Symptoms of poor depth perception and unsteadiness were attributed to a non-service connected diagnosed condition of Type II diabetes mellitus. To the extent that the manifestations may include TBI, the Veteran's representative has requested that this be addressed as a separate and independent claim; accordingly, it was referred to the RO in the Introduction above for action as appropriate. In summary, the evidence on file does not show that the Veteran has had characteristic prostrating attacks from his headaches, occurring on an average once a month over the last several months, or that there is any other basis upon which an increased or separate evaluation may be assigned in this case. The Board finds that the preponderance of the evidence is against the Veteran's claim, and accordingly, it must be denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Based on the foregoing, service connected head injury above the right eye with residual headaches has been appropriately assigned an initial 10 percent evaluation, which is continued for the entirety of the appeal period. 38 C.F.R. 4.124(a), Diagnostic Code 8100 (2010). See Fenderson, 12 Vet. App. at 119. Extraschedular Consideration The Board also recognizes that the Veteran and the record refer to the impact of the service-connected disability on the Veteran's work functioning. In general, the schedular disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The application of such schedular criteria was discussed in great detail above. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Id. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe a veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe a veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, consideration of the next analytical step is not undertaken and referral for extraschedular consideration is not required. But if the RO or the Board finds that the schedular evaluation does not contemplate a veteran's level of disability and symptomatology, then either the RO or the Board must determine whether a veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, the symptoms described by the Veteran and in the clinical records fit squarely within the criteria found in the relevant diagnostic code (8100) used for evaluating the disability at issue, head injury above the right eye with residual headaches. In short, for the reasons already set forth above in denying the appeal for an initial rating in excess of 10 percent for head injury above the right eye with residual headaches, the rating criteria contemplate not only his symptoms but the severity of the condition, as is reflected by the currently assigned 10 percent disability. Therefore, as the assigned 10 percent rating is adequate, analysis of the next step of whether an exceptional disability picture is presented is not for consideration and referral for extraschedular consideration is not warranted. In addition, the Board notes that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for a higher rating is whether a total rating based on individual unemployability (TDIU) as a result of that disability is warranted. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran has made assertions to the effect that his headaches were a factor in his retirement in the 1990's and hinder his employability. However, the evidence on file reflects that as of January 2010 the Veteran was still working, and does not include any documentation to the effect that his is unemployable due to residuals of a head injury, to include headaches. As such, consideration of TDIU as a component to the Veteran's claim of entitlement to an initial evaluation in excess of 10 percent disabling for head injury above the right eye with residual headaches, is not warranted. ORDER Entitlement to an initial rating in excess of 10 percent for a head injury above the right eye with residual headaches, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs