Citation Nr: 1035557 Decision Date: 09/20/10 Archive Date: 09/28/10 DOCKET NO. 02-17 449 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for major depression or other acquired psychiatric disorder, also claimed secondary to service-connected disabilities. 2. Entitlement to higher initial ratings for cephalgia, rated 30 percent prior to May 5, 2009, and 50 percent on that date. 3. Entitlement to a total disability rating based on individual unemployability. REPRESENTATION Appellant represented by: Calvin Hansen, Attorney at Law ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran performed active military service from October 1965 to October 1967. This matter arises to the Board of Veterans' Appeals (Board) on appeal from September 2002 and later-issued rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The September 2002 rating decision, in pertinent part, established service connection for cephalgia (headaches) and assigned a noncompensable rating effective July 12, 2002. In December 2002, the RO assigned an initial 10 percent rating. In October 2003, the Board granted an initial 30 percent rating. In December 2005, the United States Court of Appeals for Veterans Claims (hereinafter: the Court), in pertinent part, vacated that portion of the October 2003 Board decision that denied a rating higher than 30 percent for cephalgia. The Court remanded the case back to the Board. In November 2006, the U.S. Court of Appeals for the Federal Circuit reversed the December 2005 Court decision, based on an issue not on appeal here. In February 2007, the Court, in pertinent part, reaffirmed its December 2005 order vacating that portion of the October 2003 Board decision that denied a higher rating for cephalgia and again remanded the case back to the Board. In May 2008, the Board remanded the case for development. In June 2009, the RO assigned a 50 percent rating for cephalgia effective May 5, 2009. This appeal also arises from June 2009-issued RO rating decision that denied service connection for major depressive disorder. The Board has re-characterized that issue as an appeal for service connection for major depression or other acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (a claimant seeks service connection for the symptoms regardless of how those symptoms are diagnosed or labeled). This appeal also arises from a January 2010-issued RO rating decision that denied entitlement to a total disability rating based on individual unemployability (hereinafter: TDIU). Entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO (private attorney representation). FINDINGS OF FACT 1. The Veteran is not a combat veteran, nor did he serve in Vietnam. 2. An acquired psychiatric disorder first arose many years after active service. 3. Psychiatric diagnoses, such as major depressive disorder; anxiety disorder, not otherwise specified (NOS); post-traumatic stress disorder (PTSD); and, major depression, have been offered. 4. Competent medical evidence dissociates any current psychiatric disorder from active military service or service- connected disability. 5. Cephalgia has been manifested by severe, prostrating headaches, productive of severe economic inadaptability, occurring at least twice weekly throughout the appeal period. CONCLUSIONS OF LAW 1. Major depression or other acquired psychiatric disorder was not incurred in or aggravated by active military service, nor may it be presumed to have been incurred in or aggravated by active military service, nor was it caused or aggravated by service- connected disability. 38 U.S.C.A. §§ 1110, 1111, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 3.310 (2009). 2. The criteria for a 50 percent schedular rating, and no higher, for cephalgia are met throughout the entire appeal period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8100 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has remanded the case for development. When the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In this case, all remand orders have been complied with. VA must notify and assist claimants in substantiating claims for benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA must notify the claimant and his attorney of any information and any medical or lay evidence that is necessary to substantiate the claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA must also inform the claimant of any information and evidence not of record that VA will seek to provide and that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, VA sent notice letters to the claimant in June 2008 and in February, April, and July 2009. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for service-connection, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, although the notice provided did not address either the rating criteria or effective date provisions that are pertinent to the claim, such error was harmless given that service connection is being denied, and hence no rating or effective date will be assigned with respect to this claimed condition. In Dingess, the Court also held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. With respect to the appeal for a higher initial rating for cephalgia, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. VA also has a duty to assist the claimant in the development of the claim. This duty includes assisting the claimant in obtaining service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All necessary development has been accomplished and adjudication may proceed without unfair prejudice to the claimant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA has obtained VA and private clinical records. The claimant was afforded VA medical examinations. There are no Social Security Administration (SSA) records, as the claimant has not applied for SSA benefits. Neither the claimant nor his attorney has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance to the claimant is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002). Service Connection Service connection will be awarded for disability resulting from injury or disease incurred in or aggravated by active service (wartime or peacetime). 38 U.S.C.A. §§ 1110; 1131 (West 2002), 38 C.F.R. § 3.303(a) (2009). Service connection requires competent evidence showing: (1) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; (2) medical evidence of current disability; and (3) medical evidence of a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). In Caluza, the Court also stressed that § 3.102 states, "The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident arose under combat, or similarly stressful conditions [emphasis added], and is consistent with the probable results of such known hardships." Caluza, 7 Vet. App. at 509. Each disabling condition shown by service medical records, or for which the Veteran seeks service connection, must be considered on the basis of the places, types, and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence. 38 C.F.R. § 3.303(a). "Direct" service connection may be granted for any disease not diagnosed initially until after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Chronic diseases listed at 38 C.F.R. §§ 3.307, 3.309 are accorded special consideration for service connection. Where a Veteran served at least 90 days during a period of war or after December 31, 1946, and a listed chronic disease, such as psychosis or other organic diseases of the nervous system, becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease will be presumed to have been incurred in service, even though there is no evidence of such disease during service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2009). Once the evidence has been assembled, the Board assesses the credibility and weight to be given to the evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) and cases cited therein. When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2009). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that a Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. According to 38 U.S.C.A. § 1154(a), the Secretary must consider the places, types, and circumstances of the Veteran's service, his unit's history, his service medical records, and all pertinent lay and medical evidence in the case. More favorable consideration is afforded combat Veterans under 38 U.S.C.A. § 1154(b), but, because the Veteran was not in combat, he will not be afforded this consideration. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service- connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. 38 C.F.R. § 3.310 was amended effective October 10, 2006. The revised § 3.310(b) provides the following: Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice- connected disease, will be service connected. However, VA will not concede that a nonservice- connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 C.F.R. part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. In February 2009, the Veteran claimed service connection for depression secondary to service-connected cephalgia, tinnitus, bilateral hearing loss, and residuals of an injury to the face and upper jaw. The RO obtained VA out-patient treatment reports that reflect mental health counseling at various times. A November 2008 report notes Axis I diagnoses of major depressive disorder, NOS; and, anxiety disorder, NOS. In that report, the examiner, a licensed social worker, notes that the stressors were all related to the Veteran's financial worries. The Veteran also showed PTSD symptoms that were felt to be related to an upcoming bankruptcy hearing. A March 2009 VA mental disorders compensation examination report reflects that a clinical psychologist reviewed the pertinent history and offered an Axis I diagnosis of major depressive disorder, moderate, recurrent. The psychologist opined that major depressive disorder is not secondary to any service- connected disability and further explained that major depressive disorder was due to a fire in which the Veteran lost his personal possessions and became destitute. A March 2009 VA mental health report, signed by a VA psychiatrist, contains Axis I diagnoses of anxiety disorder, PTSD, depressive disorder, and major depression. The stressors mentioned were the loss of his business, bankruptcy, the death of his brother, and flashbacks of being drafted. A March 2010 VA psychiatric note reflects, "PTSD symptoms are quite active and bothersome." The Axis I diagnoses were chronic PTSD and recurrent major depression. The examiner mentioned "increased memories of Vietnam;" however, the Veteran has not served in Vietnam. His service personnel records reflect that he underwent basic training in Missouri and then was stationed in Texas for the balance of his active military service. The Board must address the competency, credibility, and probative value of all evidence, including lay evidence. 38 U.S.C.A. § 7104(d) (1) (West 2002); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The lay evidence of record is competent with respect to observance of symptoms readily observable and it is credible, as there is no indication of lack of veracity. Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005). However, the lay evidence may not be used to establish a diagnosis or etiology. VA regards lay statements to be competent evidence of descriptions of symptoms of disease, disability, or injury, but not the determination of an issue involving a question of medical expertise. 38 C.F.R. § 3.159; Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); but see Jandreau v. Nicholson, 492 F.3d1372, 1377 (Fed. Cir. 2007) (lay diagnosis is competent if: (1) lay person is competent to identify the medical condition; (2) lay person is reporting a contemporaneous medical diagnosis; or (3) lay testimony of symptoms at the time supports a later diagnosis by a medical professional). The Veteran's etiology opinion in this matter is of little value because the determination of the root cause of any current psychiatric disorder involves a question that only medical experts may address. In this case, there are two negative medical opinions concerning the etiology of any psychiatric disability. The negative medical opinions are persuasive and are based on correct facts. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is accorded no weight); also see Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (medical opinion based upon an inaccurate factual premise has no probative value); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The only contrary (that is, favorable) medical opinion is a March 2010 VA psychiatric note that reflects "PTSD symptoms are quite active and bothersome" and "increased memories of Vietnam." This opinion is not valued, as it is based on an inaccurate factual premise: the Veteran has not served in Vietnam. Because there is no indication that a mental disorder arose until many years after active military service and because the medical evidence dissociates any current psychiatric disorder from active military service or service-connected disability, after considering all the evidence of record, the Board finds that the preponderance of it is against the claim. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107 (West 2002); Gilbert, supra. Service connection for major depression or other acquired psychiatric disorder must be denied. Initial Rating for Cephalgia The Veteran seeks a higher initial rating for cephalgia. This disability is rated 30 percent prior to May 5, 2009, and 50 percent on that date. Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2009). Diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. The entire medical history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. 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. 38 C.F.R. § 4.7. Evaluation of a disability includes consideration of the Veteran's ability to engage in ordinary activities, including employment, and the effect of symptoms on functional abilities. A VA medical examination report must also include a "full description of the effects of disability upon the person's ordinary activity." 38 C.F.R. § 4.10; Martinak v Nicholson, 21 Vet. App. 447, 454 (2007). In Fenderson v. West, 12 Vet. App. 119, 126-7 (1999), the Court distinguished a claim for an increased rating from that of a claim arising from disagreement with the initial rating assigned after service connection was established. The Court stressed that rather than showing increased disability, it would be necessary for the Veteran to show that the original rating had simply been too low. In a later decision, the Court held that where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). Cephalgia has been rated under Diagnostic Code 8100 for the entire appeal period. Diagnostic Code 8100 is specifically for rating migraines; however, headaches of any etiology may be rated under this code, as they are analogous to migraines. Under Diagnostic Code 8100, a noncompensable rating is warranted for attacks occurring less frequently than one in two months. A 10 percent rating for migraine headaches is warranted where there are characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent rating requires characteristic prostrating attacks occurring on an average of once a month over the last several months. A 50 percent evaluation requires very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2009). A July 2002 VA neurology compensation examination report notes 7 to 8 severely painful headaches per month-even more often during cold weather. A November 2002 VA neurology compensation examination report reflects a reported two to three headaches per week that caused the Veteran, a commercial artist, to miss work. The headaches usually resolved within 4 hours and a lot of photophobia and phonophobia occurred with them. Medication had not helped. The diagnosis was simply "chronic migraine headaches." In a September 2004 brief to the Court, the Veteran argued that a higher rating is assigned not when all stated rating criteria are shown, but rather "when the disability picture more nearly approximates the criteria for the next higher rating." 38 C.F.R. § 4.7. He also pointed out that § 4.21 states that "it is not expected...that all cases will show all the findings specified." In its order of December 2005, the Court found that the Board had omitted a discussion of the interplay among the guidance set forth at § 4.3 (reasonable doubt resolved in favor of claimant); § 4.7 (higher rating applies where the criteria are more nearly approximated); and, § 4.21 (all elements specified in a disability grade need not necessarily be found although coordination of rating with impairment of function will be expected in all instances). On May 5, 2009, VA again examined the Veteran. The physician noted a complaint of worsening headaches. These occurred weekly and most of them were prostrating. After noting a history of weekly headaches, the physician then noted that severe, incapacitating headaches had occurred daily. All medical evidence dated within the appeal period appears to agree that prostrating and severe headaches have occurred at least twice weekly, or more often, throughout the appeal period. Because these headaches cause the Veteran to miss work, severe economic hardship has resulted. In other words, the headaches are productive of severe economic inadaptability. Comparing these manifestations to the rating criteria, it is clear that the criteria for a 30 percent rating are greatly exceeded, because that rating requires characteristic prostrating attacks that occur only once a month. Throughout the appeal period, the Veteran's headaches have occurred much more frequently than once per month. Comparing the reported 7 to 8 severe, prostrating headaches per month and the lost time from work they have caused to the 50 percent rating criteria, it is clear that these criteria are more nearly approximated. Even if all elements specified in the rating criteria are not shown, they need not be. 38 C.F.R. § 4.21. The Board must resolve any remaining doubt in favor of the Veteran and find that the 50 percent criteria are more nearly approximated throughout the appeal period. In this case, the evidence does not contain factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal. The assignment of staged ratings is therefore unnecessary. Hart, supra. After considering all the evidence of record, including the testimony, the Board finds that the evidence is at least in relative equipoise. The benefit of the doubt doctrine will therefore be applied. See 38 U.S.C.A. § 5107 (West 2002); Gilbert, supra. A 50 percent schedular rating for cephalgia will therefore be granted for that portion of the appeal period prior to May 5, 2009. Concerning the appeal for a schedular rating greater than 50 percent, Diagnostic Code 8100 does not offer a rating greater than 50 percent. No other impairment, including cognitive impairment, is shown. Thus, a rating for other diseases of the central nervous system need not be discussed. Because the highest schedular rating offered for headaches has been assigned, there is no need for further analysis. After considering all the evidence of record, the Board finds that the preponderance of it is against the claim. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107 (West 2002); Gilbert, supra. The claim for an initial disability rating greater than 50 percent for cephalgia is therefore denied. Extraschedular Consideration The provisions of 38 C.F.R. § 3.321(b) provide that where the disability picture is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the Veteran for his service-connected disability, an extra- schedular evaluation will be assigned. Where the Veteran has alleged or asserted that the schedular rating is inadequate or where the evidence shows exceptional or unusual circumstances, the Board must specifically adjudicate the issue of whether an extraschedular rating is appropriate, and if there is enough such evidence, the Board must direct that the matter be referred to the VA Central Office for consideration. If the matter is not referred, the Board must provide adequate reasons and bases for its decision to not so refer it. Colayong v. West 12 Vet. App. 524, 536 (1999); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In this case, an extraschedular rating is addressed in the Remand below. ORDER Service connection for major depression or other acquired psychiatric disorder is denied. A 50 percent schedular rating for cephalgia prior to May 5, 2009, is granted, subject to the laws and regulations governing payment of monetary benefits. A schedular rating greater than 50 percent for cephalgia, for any portion of the appeal period, is denied. REMAND The Veteran seeks TDIU on a schedular or extraschedular basis. TDIU may be assigned, where the schedular rating is less than total, when the Veteran 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, such disability shall be ratable as 60 percent or more and if there are two or more 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) (2009). The Veteran does not have a single disability rated at 60 percent. Specifically, he has a 50 percent cephalgia rating, a 10 percent tinnitus rating, and two noncompensable ratings. He therefore does not meet the above-noted schedular guidelines provided for TDIU pursuant to § 4.16(a). A TDIU claim "presupposes that the rating for the [service- connected] condition is less than 100%, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). The provisions of § 4.16(b) allow for extraschedular consideration of cases in which Veterans who are unemployable due to service-connected disabilities but who do not meet the percentage standards set forth in § 4.16(a). There must be a determination that the Veteran's service-connected disability is sufficient to produce unemployability without regard to advancing age or non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. Assignment of TDIU requires that the record reflect some factor that "takes the claimant's case outside the norm" of any other Veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). The question is whether the Veteran is capable of performing the physical and mental tasks required of employment, not whether the Veteran can find employment. Id. In VAOPGCPREC 6-96, VA's General Counsel (GC) stressed that where the Veteran has alleged or asserted that the schedular rating is inadequate or where the evidence shows exceptional or unusual circumstances, the Board must specifically adjudicate the issue of whether an extraschedular rating is appropriate. If there is enough such evidence, the Board must direct that the matter be referred to the VA Central Office for consideration. GC has not, however, set forth how much evidence is "enough" evidence for referral. Moreover, in VAOPGCPREC 6-96, GC stressed that if further action is necessary, the Board should remand the TDIU issue. In this case, the Veteran's assertion of unemployability and a May 2009 physician's opinion that completely prostrating headaches occur daily are credible and competent evidence that render the TDIU claim plausible. The Court specifically held that the Board is precluded from assigning an extraschedular rating "in the first instance." Floyd v. Brown, 9 Vet. App. 88, 94 (1996). Thus, the Board must remand the matter for initial consideration by the proper authority-proper authority being VA's Central Office. VA has not submitted the TDIU claim to VA's Central Office. Because the Board cannot adjudicate a TDIU claim until VA's Central Office has considered it, the RO must submit the TDIU claim to VA's Central Office for consideration. Accordingly, the case is REMANDED for the following action: The RO should submit the TDIU claim to the Director, Compensation and Pension Service, for extraschedular consideration in accordance with 38 C.F.R. § 4.16(b) and § 3.321 (b). Following that action, if TDIU is not granted, an appropriate supplemental statement of the case (SSOC) should be issued. The Veteran and his attorney should be afforded an opportunity to respond to the SSOC before the claims folders are returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs