Citation Nr: 1647938 Decision Date: 12/23/16 Archive Date: 01/06/17 DOCKET NO. 11-03 516 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a higher disability rating for service-connected tension headaches, currently with a 30 percent disability rating prior to September 17, 2012 and a 50 percent disability rating thereafter. 2. Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Solomon, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1972 to January 1976. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied the Veteran's claim for a disability rating in excess of 30 percent for service-connected tension headaches. Subsequently, in an October 2012 rating decision, the RO increased the Veteran's disability rating for tension headaches to from 30 percent to 50 percent effective September 17, 2012, based upon a VA examination conducted on that date. However, as the increase did not constitute a full grant of the benefits sought, as it was not awarded for the entirety of the appeal period and in theory a rating in excess of 50 percent could be awarded on an extraschedular basis, the Veteran's claim for an increased disability rating remains in appellate status for both the period before and September 17, 2012. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). The Board notes that the Veteran was scheduled for a hearing before a Veterans Law Judge at the RO in May 2013. In an April 2013 letter, the Veteran stated that he would be unable to make it to the hearing and requested that a decision be made on the case. Consequently, the Board finds that it has complied with its duty to provide the Veteran with an opportunity to present evidence at a hearing, and no further action need be taken in this regard at this time. In June 2014, the Board found that the issue of entitlement to a TDIU had been raised in connection with the appeal seeking a higher disability rating for service-connected tension headaches, and remanded both issues for further development. The appeal has since been returned to the Board for appellate review. FINDINGS OF FACT 1. Throughout the pendency of the appeal, the Veteran's headaches have been very frequent and prostrating. 2. The Veteran's service-connected disability of tension headaches has not been shown to be of such severity as to preclude substantially gainful employment. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for an evaluation of 50 percent for tension headaches, but no higher, have been met during the entire period under appeal. 38 U.S.C.A. §§ 1155 , 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.3, 4.124a, Diagnostic Code 8100 (2016). 2. The numeric criteria for assignment of a TDIU are not met, and the evidence does not warrant referral for consideration of a TDIU on an extra-schedular basis. 38 U.S.C.A. §§1155, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA'S Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In an increased rating case, VA must inform the veteran that he will need evidence demonstrating a worsening of the condition or increase in the severity of the disability and the effect that the worsening has on occupational functioning. Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1279 (Fed. Cir. 2009). A March 2010 pre-adjudication letter notified the Veteran of the evidence necessary to substantiate his increased rating claim, and informed him of the steps VA had taken and what he should do moving forward. Pursuant to the Board's remand directives, in August 2014, the Veteran was sent notice of the evidence needed to substantiate a claim for a TDIU and was informed of the types of evidence to submit in support of this claim. Consequently, the Board finds that VA's duty to notify has been satisfied. The Board also finds that VA's duty to assist has been satisfied. Statements from the Veteran and his spouse, VA treatment records, and information from the Veteran's past employers have been obtained and associated with the file. The Veteran has at no time referenced any outstanding records that he wanted VA to obtain or that he felt were relevant to the claim here on appeal. Additionally, the Veteran was offered the opportunity to present testimony before the Board, but requested that a decision be made on the appeal without a hearing. The Veteran has been provided with VA examinations pertaining to the severity and manifestations of his service-connected tension headaches, with the most recent examination in September 2012. The Board finds the September 2012 VA examination to be adequate for adjudicatory purposes, as the examiner interviewed the Veteran and addressed the frequency and severity of the Veteran's headaches so as to allow for informed evaluation under the relevant diagnostic code. Although the examiner did not have access to the Veteran's claims file at the time of the examination, an addendum report indicates that the examiner's opinion remained unchanged following review of the claims file. Additionally, there is no evidence to indicate that there has been an increase in the severity of the Veteran's headache disability since he was last examined in September 2012. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examination or opinion regarding the issue adjudicated herein has been met. 38 C.F.R. § 3.159(c)(4). In its June 2014 remand, the Board directed that the appeals be referred to the Director of the Compensation Service for consideration of whether the Veteran's tension headache disability picture renders impractical the use of the rating schedule and calls for a disability rating in excess of 50 percent and whether an extra-schedular award of TDIU was in order. While such development was not undertaken by the RO, the Board finds that evidence subsequently associated with the claims file and further consideration of the appeals leads to the conclusion that such referrals are not called for in the present case. Therefore, upon reaching the conclusion that the Veteran's headache disability picture is neither unusual nor exceptional, with symptoms adequately contemplated by the rating schedule, and the conclusion that the weight of the evidence is against a finding that the Veteran's headache disability alone renders him unable to obtain or maintain substantially gainful employment, referral of either issue for extra-schedular consideration is found unwarranted, and the AOJ's decision to not perform such development is not found to preclude the Board's adjudication of these matters. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially, if not exactly, complied with). Additionally, as remands which would only result in additional delay without any reasonable chance to benefiting the Veteran are to be avoided, remanding the case to have the AOJ refer the matters to the Director of Compensation Service is further counter indicated. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The available records and medical evidence have been obtained in order to make an adequate determination. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of this claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Increased Rating Claims In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 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). Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. . Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to active service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2016). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7 (2016). 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 (2016). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). However, where VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made. Thus, VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending. Hart v. Mansfield, 21 Vet. App. 505 (2007). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). Further, the Federal Circuit Court has held that, while the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record."). Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of the other factors. See Cartright v. Derwinski, 2 Vet. App. 24, 25; accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . ."). III. Tension Headaches The Veteran's tension headache disability has been evaluated under 38 C.F.R. § 4.124a , Diagnostic Code 8100, for migraine headaches, and has been assigned a staged rating of 30 percent and 50 percent during the relevant appeal period. According to Diagnostic Code 8100, a 50 percent rating is warranted for migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 30 percent rating is assigned for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. Id. Neither the rating criteria nor the United States Court of Appeals for Veterans Claims (Court) has defined the term "prostrating". According to Webster's New World Dictionary of American English, Third College Edition 1080 (1986), "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." "Inadaptability" is not defined in Diagnostic Code 8100, nor can a definition be found elsewhere in Title 38 of the Code of Federal Regulations. See Pierce v. Principi, 18 Vet. App. 440, 446 (2004). Further, it has been held that nothing in Diagnostic Code 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440, 446 (2004). In this regard, the Court has explained that if "economic inadaptability" were read to import unemployability, the appellant, should he or she meet the economic-inadaptability criterion, would then automatically be eligible for a total disability rating based on individual unemployability resulting from a service-connected disability (TDIU) rather than a 50 percent rating. Id., citing 38 C.F.R. § 4.16. In the Pierce case, the Court discussed the notion that consideration must also be given as to whether the disability is capable of producing severe economic inadaptability, regardless of whether the condition is actually causing such inadaptability. See Pierce v. Principi, 18 Vet. App. 440, 446 (2004). In this regard, the decision mentions that VA conceded that the words "productive of" could be read to mean either "producing" or "capable of producing." Id. at 446, 446-447. The Veteran filed the present claim for an increased rating for his service-connected tension headaches in March 2010. VA treatment records for the Veteran include VA mental health notes from May and August 2009 which include the Veteran's report that he was forced to retire from his prior two jobs because of difficulty getting along with coworkers, stating that he felt picked on and that he was a victim of racism. The May 2009 note has a review of systems documenting the Veteran's report of frequent (twice a week) migraine headaches, and watering eyes if he looks at something for too long. On routine VA treatment visits in August and September 2009, the Veteran described having an aching headache of 10/10 severity which "comes and goes" in August and was always there in September. In each respective month, he stated that coughing and "not having sex" worsened his pain, and that rest relieved his pain. On routine VA treatment visits in March 2010 and April 2010, on pain assessment questioning, the Veteran reported having throbbing headaches which come and go of 8/10 and 5/10 severity, respectively. In March, he stated that pain was increased by talking and was relieved by rest, and affected sleep, physical activity, concentration, and work productivity. In April, he stated that pain was increased by too much movement, noise, and too much heat, was not relieved by anything, and affected sleep, physical activity, walking, relationship with others, sexual activity, emotions, concentration, and work productivity. The Veteran was provided with a VA neurological disorders evaluation in April 2010. The examiner documented the Veteran's reports of periods of flare-ups resulting in pain, weakness, fatigue, and functional loss, described by the Veteran as severe "migraine headaches" with blurred vision, occurring every 2-3 days lasting for 1-2 hours, and sometimes longer. He did not know what caused these flare-ups, but noted that rest and medications (including hydrocodone and acetaminophen) alleviated the flare-ups, and stated that the extent of impairment on his daily activities was severe. On physical examination, the examiner found that nerve function was normal and that the Veteran did not suffer from migraines. He diagnosed tension headaches having a mild to moderate effect on the Veteran's usual occupation and daily activities. The examiner commented that the Veteran's headaches, posterior occipital headaches migrating to the bilateral temples without aura, photophobia or visceral symptoms, did not seem to be typical of migraines. In June 2010, the Veteran reported that he started having headaches upon starting hydrocodone. He reported to a VA mental health provider that month that he gets migraine headaches all the time. The Veteran's spouse submitted a statement in July 2010, reporting that the Veteran was always complaining about headaches that usually lasted about an hour or more and that when they occur, all he does is sleep. She wrote that shortly after the Veteran is around loud noise or a big crowd, he has a slight headache. She stated that he had a headache twice in mid-June, with the second one continuing on until the next day so that he missed work and just lied down all day. She further noted that the Veteran had been having headaches for quite a while, but that he could not take the medicine most of the time when operating a car/truck for his work as a truck driver. She also reported three additional headaches between the last week of June and the first week of July, indicating that the Veteran spent most of the day lying around. In mid-July, the Veteran was seen for a follow-up appointment for his hypertension and diabetes mellitus. A preventative health screening note documented a pain assessment where the Veteran reported an aching headache of 5/10 severity which is always present, with pain increased by exercise, movement, and standing/walking, and relieved with rest. He stated that the pain affects physical activity, walking, and work productivity. The primary care physician note indicated that the Veteran complained of migraine headache and requested medicine for the headache. The physician advised that the Veteran should continue taking Verapamil as prescribed and Lortab as needed, with the addition of Elavil, and sumatriptan as needed for headache, and was given a Toradol injection in the clinic. He advised the Veteran to take off duty for two days. The next day, the Veteran was admitted through the emergency room for upper gastrointestinal bleeding, and was admitted as an inpatient then discharged approximately five days later. September 2010 VA treatment records document the Veteran's report of aching head pain of 4/10 severity that is always present and which affects work productivity. He requested a head CT or MRI due to his constant headaches. A December 2010 pre-operative health and physical note indicated that the Veteran experiences migraine headaches, which were occasionally severe. The Veteran was provided with a January 2011 VA neurological examination. He reported having moderately severe headaches since his military service, and stated that he felt they'd gotten more severe and a little more frequent over the past few years. He described frontal and occipital headaches three times per week, which last about two hours if he lies down and takes something, otherwise, they may last several hours. The headaches were described as being 8/10 in severity, and may be triggered by bright light or loud noises. The Veteran reported that he could not do anything when he got a headache at least once a week, and that during the headaches, he likes to lie or sit down in a dark room because light and noise are irritating. The Veteran denied nausea during the headaches, but endorsed some dizziness and seeing spots during the episodes. The examiner noted that the Veteran had medication to take as needed for migraines, but none as prophylaxis. On physical examination, the Veteran appeared well, alert and oriented x3, with normal gait, and was seemingly clear-headed. The examiner diagnosed migraine type headache syndrome and stated that it was not clear whether the Veteran's headaches were of a greater severity or occurring more frequent than when he was previously examined. The Veteran submitted his substantive appeal in January 2011. On his VA Form 9, he wrote that he was still having headaches which were coming more frequently and which were more severe. He indicated that these affected his equilibrium, sight, ability to concentrate, and sometimes caused dizziness, with the only thing that seemed to help was finding a quiet place, trying to relax, resting his eyes, and take his medications. VA treatment records from February 2011 include a pain assessment where the Veteran reported aching/throbbing head pain of 8/10 severity which comes and goes; increased by movement, touch and manipulation and relieved by meds. He stated that pain affected his sleep, physical activity, and concentration. In a February 2011 VA mental health note, the Veteran stated that he lost his job in December 2010 because of missing a lot of days at work due to daily headaches. He also stated that he was worried about his constant headache, which he described as pain with a 5-6/10 severity. In a July 2011 VA preventative medicine note, the Veteran reported on pain assessment that he had constant throbbing head pain of 5/10 severity, increased by noise and vibration and relieved by "quiet, cool, and being still." He reported that the pain affected his sleep, physical activity, walking, and concentration. In an October 2011 VA treatment note, the Veteran reported that the hydrocodone was not strong enough for his headaches, describing them as throbbing pain of 6/10 severity increased by sunlight, noise, and vibration, with relief by medication. In a later October 2011 treatment record, it was noted that his migraine headaches were stable. In a February 2012 statement, the Veteran wrote that his headaches had become more painful and were coming more frequently, 3-4 times per week. He reported that bright lights and loud noises seemed to bring the headaches on, and sometimes stress, and that he would sometimes get dizzy, causing him to lose his balance and his eyes to blur. The Veteran stated that the only thing that helped is to get in a quiet place and be still. He stated that sometimes the headaches would last for 2-3 hours, and that he took hydrocodone and acetaminophen when they occurred. The Veteran was provided with another VA examination in September 2012. At that time, he indicated that his headaches were getting worse and that his treatment included taking sumatriptan and hydrocodone as needed. The Veteran described his headache pain as constant and pulsating or throbbing. He endorsed non-headache symptoms of sensitivity to light and sound. The Veteran indicated that the duration of his typical head pain was less than one day, and the location was on the right side of the head, and also both sides of the head. The examiner noted that the Veteran had characteristic prostrating attacks of migraine headache pain more frequently than once per month. She found that the Veteran had very frequent prostrating and prolonged attacks of migraine headache pain. The Veteran was also noted to have prostrating attacks of non-migraine headache pain more frequently than once per month, but the examiner noted that these were not "very frequent prostrating and prolonged attacks". A CT of the head conducted in 2010 returned normal results. The examiner opined that the Veteran's headache condition had an impact on his ability to work, noting that the Veteran was having 2-3 debilitating headaches per week and took medication and had to lay down in a dark quiet room for at least an hour when they occurred. She stated that he would need to leave work if employed, and that until the Veteran had better control of his headaches, he would be unable to maintain gainful employment due to his frequent severe headaches. The Board notes that the examination report states that the claims file was not available and that the examiner reviewed documents in CPRS, but an addendum indicates that the claims file was reviewed, and that the examiner had no further additions. September 2012 and November 2012 VA treatment records demonstrate that the Veteran continued to report having migraine headaches 2-3 times per week, with increased pain from light and noise. The Veteran's VA treatment records include copious records from the period between December 2012 and May 2013, relating to frequent oncological treatment visits. During a number of visits in December 2012, including five between December 5 and December 19, the physicians noted a prior medical history of migraine headaches, with notations that the Veteran could be given Norco for pain if necessary. During this time, the Veteran denied having an active headache, except for on December 17 when he complained of a headache and chills, and was found to have a temperature of 101.1 degrees. Between January 2013 and April 2013, a prior medical history of migraine headaches was noted, but there was no mention of headache pain in the extensive records of chemotherapy treatment. Rather, a March 2013 mental health note documented the Veteran's reports of not sleeping well a few weeks past due to leg pain, but with better sleep since his potassium was corrected; he denied trouble falling or staying asleep at the time of the appointment. The Veteran described decreased energy and concentration in the past couple of weeks as well as occasional feelings of guilt, but denied loss of interest in pleasurable activities and stated that he enjoys working on and talking about old cars and enjoyed sharing this interest with the health care provider. Notably absent was any mention of difficulties stemming from frequent migraines. In May 2013, VA treatment records noted that the Veteran's history was negative for an increased frequency of headaches, and treatment records from May 2013 to September 2013 include no mention of headaches other than listing migraines within the Veteran's past medical history. The next mention of an active headache in the VA treatment records was recorded in an August 2014 nursing Pact note where the Veteran presented to the clinic for paperwork completion for a disability benefits claim, and on pain assessment, reported aching head pain of 6/10 severity which is always present, is increased by movement and touching/manipulation, and relieved by medication and rest. The Veteran stated that the pain affects walking. In May 2013, the Veteran submitted a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability and stated that his tension headaches rendered him too disabled to work from 2011 to the present. He indicated that he completed one year of college and worked as a truck driver with two separate employers in 2010 and 2011, working 40+ hours per week at each job. He did not provide information pertaining to the time lost due to his disability. Employment information from these companies noted that the Veteran worked as a driver for an oil company from May 2010 to early December 2010 and for a cement company from December 13, 2010 to January 10, 2011. The oil company did not provide information about the number of hours worked by the Veteran, the reason for termination of the Veteran's employment, or the time lost by the Veteran due to his headache disability. They wrote that there were no concessions made for the Veteran by reason of age or disability. The cement company responded that the Veteran worked 6-8 hours daily, 30 to 40 hours per week, and did not lose any time due to disability. They indicated that no concessions were made for the Veteran due to disability and that he was terminated from his position as a cement mixer driver due to an accident in the mixer and running over a customer's mailbox. During the relevant appeal period, the Veteran's tension/migraine headaches currently have a 30 percent disability rating prior to September 17, 2012 and a 50 percent disability rating thereafter. When considering the relevant laws and regulations, the Board finds that the evidence of record supports an award of a 50 percent disability rating for the entirety of the appeal period. The Veteran filed his claim for a higher rating in March 2010. As early as April 2010, at the VA examination, the Veteran described experiencing severe flare-ups of migraine headache pain every 2-3 days lasting for 1-2 hours, but sometimes longer. The Veteran indicated that such flare-ups of pain had a severe impairment on his daily activities, although the examiner opined that the Veteran's tension headaches had a mild to moderate effect on his usual occupation and daily activities. The Veteran has consistently described experiencing severe headaches at least two times per week throughout the pendency of his appeal, that he treated by lying down in a dark, quiet place, and taking pain medications. The Veteran is competent to report as to what he sees and feels, such as the severity of headache-related pain. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); 38 C.F.R. § 3.159 (a)(2). Although the Veteran's description of headaches typically lasting between one and two hours would not qualify as "prolonged attacks," the Board finds that his description of severe prostrating headaches occurring at least 8 times per month qualify as very frequent, and would be capable of producing severe economic inadaptability. The Board therefore finds that, while not meeting all of the criteria listed under Diagnostic Code 8100 for a 50 percent rating, when resolving all reasonable doubt in the Veteran's favor, the Veteran's disability picture more nearly approximates the criteria for that rating than the criteria for the lower 30 percent rating, which contemplates characteristic prostrating attacks of migraine headaches occurring on an average once a month. See 38 C.F.R. § 4.7 (2016). The increased award of 50 percent should therefore be made effective from the beginning of the appeal period. In so finding, the Board has considered whether additional or greater evaluations are warranted under other potentially applicable diagnostic codes. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The rating schedule does not include a specific diagnostic code for "tension headaches," but the Veteran's symptoms are found to track most-closely with those described under diagnostic code 8100 for migraines. As the Board finds this to be the disability most analogous to the Veteran's disability picture, and the Board finds that a higher rating is not warranted under any other rating criteria, entitlement to a separate or increased evaluation on that basis has not been demonstrated. IV. Extraschedular Considerations The Board has considered the provisions of 38 C.F.R. § 3.321(b)(1) and whether the record shows that the Veteran's service-connected headache disability is so exceptional or unusual as to warrant the assignment of a higher rating on an extraschedular basis. See 38 C.F.R. § 3.321(b)(1) (2016). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1)) as "governing norms"(which include marked interference with employment and frequent periods of hospitalization). Considering the first step in the analysis, in this case, the symptoms described by the Veteran are found to fit appropriately within the criteria found in the relevant Diagnostic Code for the disability at issue. The Veteran has described very frequent prostrating attacks of migraine headaches with pain increased with light, sound and vibration, and with vision changes sometimes resulting in dizziness. He also described difficulty concentrating during his attacks of headache pain. Light and sound sensitivity, as well as resultant visual changes and sensitivity to jostling are symptoms typical of migraine headaches and diagnostic code 8100's 50 percent schedular rating, which contemplates very frequent completely prostrating and prolonged attacks of migraine headaches productive of severe economic inadaptability, is found to reasonably describe the Veteran's disability level and symptoms. Additionally, the Board does not find that difficulty concentrating during an episode of prostrating headache pain is an unusual result of a migraine attack. Thus, the rating criteria are found to account for both the frequency and severity of the symptoms reported here, and also explicitly considers interference with employment. The Veteran's statements, while reflective of serious headache symptoms, remain consistent with the criteria for a 50 percent rating and there is no reason to conclude that his symptoms are so unusual that the highest evaluation is insufficient here. While the Board acknowledges that in the prior remand, it directed that referral of the appeal to the Director of Compensation Service was in order due to evidence of a significant effect on the Veteran's employability due to his tension headache disability, such instruction neglected to account for the fact that the 50 percent schedular rating contemplates "severe economic inadaptability." For these reasons, the Board finds that the schedular rating criteria are adequate to rate the disability on appeal, and referral for consideration of an extraschedular evaluation is not warranted. As the Veteran has only been awarded service connection for the one disability, tension headaches, the Court's holding in Johnson v. McDonald regarding potential extraschedular consideration for the combined effect or collective impact of multiple service-connected disabilities is inapplicable. See 762 F.3d 1362 (Fed. Cir. 2014). V. TDIU Finally, a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been considered. 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). A TDIU will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, 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, provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability 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). For the purpose of determining whether there is one disability evaluated at 60 percent, or one disability evaluated at 40 percent where the combined rating of all service-connected disabilities is 70 percent or greater, disabilities resulting from a common etiology will be considered as "one disability." Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. See 38 C.F.R. § 4.16(b) (2016). The Board does not have the authority to assign an extraschedular TDIU in the first instance. See Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but may not be given to his or her age or to any impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2016). TDIU is predicated upon an inability to secure and follow "substantially gainful employment." 38 C.F.R. § 4.16(a). In Faust v. West, 13 Vet. App. 342, 355-56 (2000), the Court held that "substantially gainful employment" for TDIU purposes is met where the annual earned income exceeds the poverty threshold for "one person," irrespective of the number of hours or days actually worked and without regard to any prior income history. This was incorporated into 38 C.F.R. § 4.16(a), which now specifies that marginal employment generally shall be deemed to exist when a veteran's earned annual 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, on a facts found basis (including but not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). Consideration shall be given in all claims to the nature of the employment and/or the reasons for termination. Id. Service connection is currently in effect for one disability: tension headaches, rated as 50 percent disabling. Thus, the Veteran does not meet the schedular criteria for consideration of entitlement to a TDIU. 38 C.F.R. § 4.16 (a). The remaining question before the Board, then, is whether he is unable to secure or follow a substantially gainful occupation solely by reason of his service-connected disability and thus entitled to referral for consideration of a TDIU rating on an extra-schedular basis under the provisions of 38 C.F.R. § 4.16 (b). The Board again acknowledges that in its June 2014 remand, it directed that the appeal be referred to the Director, Compensation Service for consideration of an extraschedular TDIU, and that such development was not completed. However, other development that was conducted on remand, in addition to evidence previously of record, leads the Board to the conclusion that such referral is not warranted in this case. The Veteran asserts that he has been rendered unable to obtain or maintain substantially gainful employment due to the frequency and severity of his tension/migraine headaches. At a February 2011 mental health appointment, he reported that he had lost his job in December 2010 because he was missing a lot of days from work due to daily headaches. The Veteran's spouse submitted a statement in July 2010 in which she described the Veteran as missing one day of work in June 2010, but always complaining of headaches lasting approximately an hour or more. She indicated that due to the Veteran's line of work as a truck driver, he was unable to take his medication most of the time due to limitations that would result on his ability to operate heavy machinery. At the January 2011 VA examination, the Veteran stated that his headaches lasted for about 2 hours if he took medication and laid down, but that if he did not, they might last for several hours. He stated that he had headaches rendering him unable to do anything at least once per week. Although the Veteran is competent to report his experienced symptoms and instances when he missed work because of his headaches, the credibility of this lay evidence is somewhat diminished by other evidence obtained in the post-remand development of the Veteran's claim for entitlement to a TDIU. As an initial matter, although the Veteran stated that he lost his job in December 2010 because he was missing a "lot of days at work due to daily headache," he never specified the approximate amount of time he was forced to take off of work due to his headaches, and the oil company from which he stated he was terminated did not indicate how much, if any, time the Veteran lost from work due to his disability or the reason for his termination, but did indicate that it did not make any concessions for his disability over the . The veteran indicated that he completed one year of college and worked as a truck driver with two separate employers in 2010 and 2011, working 40+ hours per week at each job. He did not provide information pertaining to the time lost due to his disability. Employment information from these companies noted that the Veteran worked as a driver for an oil company from May 2010 to early December 2010 and for a cement company from December 13, 2010 to January 10, 2011. The oil company did not provide information about the number of hours worked by the Veteran, the reason for termination of the Veteran's employment, or the time lost by the Veteran due to disability. They wrote that there were no concession made for the Veteran by reason of age or disability. The cement company responded that the Veteran worked 6-8 hours daily, 30 to 40 hours per week, and did not lose any time due to disability. They indicated that no concessions were made for the Veteran due to disability and that he was terminated from his position as cement mixer driver due to an accident in the mixer and running over a customer's mailbox. The Board notes that although the Veteran reported having several prostrating-type headaches per week during this period, he was able to maintain employment between May and December 2010, despite having approximately five days of inpatient treatment for a non-service connected gastrointestinal bleed. Additionally, although he stated that he was terminated from this position because of missing too much work due to his headaches, the Veteran was able to obtain another driving position less than one month later. Although the subsequent employer indicated that the Veteran only worked for that company for one month prior to termination, the employer did state that the Veteran did not miss any time from work during that month due to his headache disability and indicated that the Veteran was terminated due to mistakes he made on the job, rather than his disability. In considering the above, the Board finds that the weight of the evidence is against a finding that the Veteran's headache disability renders him unable to obtain or maintain substantially gainful employment. Although the Veteran's chosen profession driving trucks may be significantly impaired by use of strong prescription medication and the need to relax in a dark room a few times per week due to headaches, the evidence of record demonstrates that the Veteran completed one year of college and previously worked for twenty years with the City of Plano, at least part of which as a signs and markings tech. See Fitness for Work Duty Evaluation, Jan. 6, 2004. Given the Veteran's education and work history, the Board finds that while capable of resulting in severe economic inadaptability, the Veteran's service-connected headache disability alone does not render him unable to obtain or maintain substantially gainful employment. As his usual headaches are not prolonged in nature, but rather last about one hour at a time, it is not unreasonable to conclude that the Veteran would be able to engage in employment that allowed for some flexibility in this regard. In so finding, the Board acknowledges that a VA examination report from September 2012 includes an opinion that until the Veteran had better control of his headaches, he would be unable to maintain gainful employment. However, the Board does not find this persuasive, as the Veteran described symptoms of similar severity at the January 2011 VA examination, immediately following a period where he was employed and is reported to have not lost work time due to his disability. As the September 2012 examiner also concluded that "he would need to leave work if employed," and concluded that the Veteran was unemployable without discussing the basis for such determination or considering the Veteran's education level and prior work history, the opinion provided is found to lack probative value. The Board notes that prior to making this determination, the claims file was not available to the examiner, and the evidence provided by the Veteran's prior employers had not yet been obtained and associated with the file. The Board finds more persuasive the extensive treatment records beginning shortly after this examination, from December 2012 to August 2014, which indicate that the Veteran's migraine headache condition had stabilized, with the Veteran's denial of active headache pain recorded in his numerous inpatient and outpatient treatment notes, except for seemingly isolated incidents in December 2012 when he had headaches in connection with chills and a fever, and in one pain assessment note in August 2014. These records do not evidence the frequency of active headache complaints the Board would expect to see given the Veteran's reports. The Board finds the Veteran's reports (or lack thereof) to his treatment providers to be more persuasive than his description of symptoms made to VA examiners, because the Veteran would have a greater incentive to give a complete and accurate accounting of his symptoms to his treatment providers to aid in his treatment while having a greater incentive to report more severe symptoms and resulting impairment at a VA examination due to his interest in enhancing his claim for benefits. See Cartright v. Derwinski, 2 Vet. App. 24, 25; accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . ."; see also Fed. R. Evid. 803 (4) (noting that statements made to physicians for the purposes of diagnosis and treatment are exceptionally trustworthy, and not excluded by the hearsay rule because the declarant has a strong motive to tell the truth in order to receive proper care); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) ("[R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board's reasons.")). In conclusion, the weight of the evidence does not support a finding that the Veteran is unemployable due to his service-connected migraine headaches, based upon the competent, probative, and persuasive medical evidence of record. Although the Veteran contends that he cannot work due to his headaches, such statements are conclusory in nature and are unsupported by the more-probative medical treatment and employer-provided evidence of record. Accordingly, entitlement to a TDIU is not found warranted in this case. Based on the foregoing, entitlement to an evaluation in excess of 50 percent for tension headaches on an extraschedular basis, and entitlement to a TDIU, must denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the competent, probative evidence is against such awards, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER A fifty percent disability rating, but no higher, is granted for the pendency of the appeal period. A TDIU is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs