Citation Nr: 1242407 Decision Date: 12/12/12 Archive Date: 12/20/12 DOCKET NO. 10-27 647A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether there was clear and unmistakable error (CUE) in a March 1975 rating decision that denied service connection for cephalgia (i.e., headaches). 2. Entitlement to an initial rating higher than 0 percent, so a compensable rating, for tension headaches since determined to be a service-connected disability. 3. Entitlement to a total disability rating due to individual unemployability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran had active military service from September 1972 to August 1974. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for tension headaches and assigned an initial 0 percent (i.e., noncompensable) rating retroactively effective from June 27, 2007, on the premise that that was the date of receipt of this claim. The Veteran appealed for a higher initial rating for this disability. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (when a Veteran appeals an initial rating, VA must consider whether to "stage" the rating, meaning assign different ratings at different times since the effective date of the award to compensate him for occasions the disability may have been more severe than at others). The RO originally had denied service connection for cephalgia (i.e., headaches) in a March 1975 decision. The Veteran did not appeal that earlier decision or collaterally attack it, after the fact, to try and vitiate its finality by asserting it involved CUE. However, for reasons and bases that will be discussed, that initial March 1975 decision involved CUE such that service connection for headaches should have been granted much earlier, even in that prior decision. And even though this matter was never appealed to the Board, the issue of entitlement to a higher initial rating for the headaches that since have been determined to be a service-connected disability is before the Board, which necessarily includes considering all prior, final and binding, denials of claims for this same condition. Moreover, as the appellate adjudicator, the Board is free to make right all prior RO errors, whatever that may entail. See 38 U.S.C.A. § 7103(c) (2012) ("The Board on its own motion may correct an obvious error in the record, without regard to whether there has been a motion or order for reconsideration."). Because a revision of the March 1975 decision that was the product of CUE has been deemed warranted, this appeal stems from a grant of service connection for cephalgia (or headaches) in March 1975. A derivative TDIU claim also has been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran has submitted evidence he is unable to work because of the severity of the service-connected disability at issue in this appeal for which he is requesting a higher initial rating, namely, on account of his headaches. In Mayhue v. Shinseki, 24 Vet App 273 (2011), the Court determined the Board had failed to apply 38 C.F.R. § 3.156(b) when it had treated the Veteran's request for a TDIU as different from his claim for a higher initial rating for his underlying disability, which in that case was posttraumatic stress disorder (PTSD). The Court, citing Rice, reasoned that a request for a TDIU is not a separate claim for benefits, rather, an attempt to obtain an appropriate rating for a disability or disabilities. Thus, the Court explained, the Board should have considered evidence of unemployability as far back as the date of the underlying initial claim. VA's Office of General Counsel has clarified that remanding the derivative TDIU claim does not preclude the Board from going ahead and deciding the claim for a higher rating for the disability that formed the basis of the TDIU claim. See VAOPGCPREC 6-96 (Aug. 16, 1996) and VAOGCPREC 12-2001 (July 6, 2001). Hence, while the Board is remanding this derivative claim of entitlement to a TDIU, the Board is going ahead and deciding the underlying claim for a higher initial rating for the tension headaches. The remand of this derivative TDIU claim to the RO will be via Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. Service connection for cephalgia (i.e., headaches) was denied in a March 1975 RO decision. The Veteran did not appeal. 2. That March 1975 RO decision, however, was not supported by the evidence then of record, and the applicable statutory and regulatory provisions existing at that time were ignored or incorrectly applied such that service connection for cephalgia (i.e., headaches) should have been granted even then. 3. Effectively since August 14, 1974, the day after the Veteran's medical retirement from the military, his headaches have been very frequent, completely prostrating, prolonged attacks, productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The March 1975 RO decision that denied entitlement to service connection for cephalgia (i.e., headaches) is a final and binding decision since not appealed. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.1103 (2012). 2. There was CUE in that decision, however, so it is overturned such that service connection for cephalgia (i.e., headaches) is granted with an effective date of August 14, 1974, the first day after the conclusion of the Veteran's service. 38 U.S.C.A. §§ 5109A, 7105 (West 2002); 38 C.F.R. §§ 3.105(a), 3.400(b)(2)(i) (2012). 3. The criteria also are met as of August 14, 1974, for a higher 50 percent initial rating for the tension headaches, rather than just a 0 percent, i.e., noncompensable rating as of June 27, 2007. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.124a, Diagnostic Code 8100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. CUE Regarding this initial issue of whether there was CUE in the RO's March 1975 rating decision, VA's duties to notify and assist do not apply to CUE claims. See Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc). While CUE, when demonstrated, will result in reversal or revision of a prior final and binding decision on a claim for benefits, it is not by itself a claim for benefits. The Veteran in this case has not asserted CUE. As a general proposition, CUE must be pled with specificity. See Andre v. West, 14 Vet. App. 7, 10 (2000) (per curium), aff'd sub nom., Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002). And, ordinarily, when there is an insufficient pleading of CUE in a prior decision, the appropriate disposition is to dismiss the claim without prejudice to refiling, rather than outright or summarily denying the claim. See Luallen v. Brown, 8 Vet. App. 92, 95 (1995) and Simmons v. Principi, 17 Vet. App. 104, 111-15 (2003). A request for revision based on CUE is an exception to the rule of finality (res judicata) and is grounds to reverse or revise a decision where the evidence establishes CUE in a final and binding RO decision. See 38 U.S.C.A. § 5109A; 38 C.F.R. § 3.105(a); DiCarlo v. Nicholson, 20 Vet. App. 52 (2006). The Court has defined CUE as an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1992). The Court also has held that such error must be based on the record and the law that existed at the time of the prior decision. Russell v. Principi, 3 Vet. App. 310, 314 (1992). In determining whether there is CUE, the doctrine of resolving reasonable doubt in favor of the Veteran is not for application, inasmuch as error, if it exists, is undebatable, or there as no error within the meaning of 38 C.F.R. § 3.105(a). Russell, 3 Vet. App. at 314; see also Yates v. West, 213, F.3d 1372 (2000). The Court has propounded the following three-pronged test to determine whether there was CUE in a prior determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions existing at that time were incorrectly applied, (2) an error occurred based on the record and the law that existed at the time of the prior adjudication in question, and (3) the error was undebatable and of the sort which, had it not been made, would have manifestly changed the outcome. Bouton v. Peake, 23 Vet. App. 70 (2008); see also Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell, 3 Vet. App. at 313-14. In order to prevail in a claim for CUE, all three of these prongs must be met. Id. The Court has further stated that CUE is a very specific and rare kind of "error." It is the kind of error, of fact or of law, which when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be, ipso facto, CUE. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). If a claimant wishes to reasonably raise CUE there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error that, if true, would be CUE on its face, persuasive reasons must be given as to why the result would have been manifestly different but for the alleged error. See again Andre v. West, 14 Vet. App. 7, 10 (2000) (per curium), aff'd sub nom., Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002). There is a presumption of validity to otherwise final decisions, and where such decisions are collaterally attacked - and a CUE claim is undoubtedly a collateral attack - the presumption is even stronger. See Grover v. West, 12 Vet. App. 109, 111-12 (1999); Daniels v. Gober, 10 Vet. App. 474, 478 (1997); Caffrey v. Brown, 6 Vet. App. 377, 383-84 (1994); Damrel v. Brown, 6 Vet. App. 242, 245 (1994). Examples of situations that are not CUE are a changed diagnosis (a new medical diagnosis that "corrects" an earlier diagnosis considered in a decision) and the VA's failure to fulfill the duty to assist. The Court also has held that allegations that previous adjudications have improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, broad brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, nonspecific claim of error cannot constitute a valid claim of CUE. Fugo v. Brown, 6 Vet. App. 40, 44 (1993). When there is evidence both pro and con on the issue, it is impossible for a Veteran to succeed in showing that the result would have been manifestly different. Simmons v. West, 14 Vet. App. 84, 88 (2000). Here, though, upon reviewing the record the Board has made a unilateral determination that there was CUE in the RO's March 1975 rating decision that initially considered and denied the Veteran's claim of entitlement to service connection for headaches, for the following reasons. The RO denied service connection for cephalgia in that March 1975 decision on the basis that cephalgia was not shown on examination in January 1975. The Veteran did not in response appeal, so that decision is final and binding on him based on the evidence then of record. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103. Cephalgia is defined as headaches. See Dorland's Illustrated Medical Dictionary, 299 (28th ed., 1994). And notwithstanding the RO's assertion in that earlier decision, the January 1975 VA examination report referred to by the RO shows, in fact, that the Veteran had cephalgia at that time. On examination, he stated that he was having very bad headaches all the time related to his neck operation that he had during his military service in January 1974. The examination report noted that he had appeared before a board examination during military service in June 1974 and was shown to have cephalgia, secondary to paravertebral muscle spasm. He resultantly was later released from the Navy in August 1974, having obtained disability retirement. The diagnoses in the January 1975 report included cephalgia. In addition to that January 1975 examination report, the service treatment records (STRs) also confirm the Veteran had a Medical Board examination at the Naval Regional Medical Center in San Diego in June 1974. During that examination he complained of constant headaches of the occipital-frontal type. The final diagnoses included cephalgia, secondary to paravertebral muscle spasm. Therefore, the RO made a clear error in its rating determination in March 1975 with the rationale that the Veteran was not shown to have cephalgia on VA examination in January 1975. The record shows, instead, he was diagnosed with cephalgia, or headaches, during his military service and was actually medically retired from the Navy, in part, due to this disability, and that the same diagnosis of cephalgia was repeated on evaluation by VA no less in January 1975, so within one year of his separation from military service. Pursuant to 38 C.F.R. § 3.105(a), a prior final and binding decision can be reversed or amended where evidence establishes CUE. And the overturning of the decision, since patently wrong, is as if it was never made. The RO's March 1975 decision was not supported by the evidence then of record, and the applicable statutory and regulatory provisions extant were ignored or incorrectly applied. Accordingly, a revision of that March 1975 rating decision based on CUE is warranted and the decision is reversed. Consequently, rather than denied, service connection instead is granted for cephalgia (headaches) as of that earlier point in time. According to 38 C.F.R. § 3.400(b)(2)(i), the effective date for direct service connection is the day following separation from active service or date entitlement arose if the claim is received within one year after separation from service; otherwise, the date of receipt of the claim, or the date entitlement arose, whichever is later, will be the effective date. The Veteran was medically released from active duty on August 13, 1974, and the issue of his entitlement to service connection for cephalgia (headaches) was originally addressed by the RO in March 1975, so well within one year of his separation from active duty. Thus, under the effective date provisions, service connection for this disability is granted as of August 14, 1974, the first day after his medical retirement from service. The Board will next address the issue of what the appropriate rating (or ratings) should be for his service-connected headaches from August 14, 1974, onwards, with initial consideration of whether VA's duties to notify and assist him have been satisfied. II. The Duties to Notify and Assist As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information and any medical or lay evidence not of record that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). This includes apprising the Veteran of the evidence that VA will obtain and of that he is expected to provide. 38 C.F.R. § 3.159(b). Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) - which, here, is the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If, however, for whatever reason it was not, or the notice provided was inadequate or incomplete, this error may be rectified ("cured") by providing any necessary notice and then readjudicating the claim, such as in a statement of the case (SOC) or supplemental SOC (SSOC), to preserve the intended purpose of the notice. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). This notice also should include apprising the Veteran of all elements of the claim, so including the "downstream" disability rating and effective date elements. Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). But in cases, as here, where the claim arose in another context, namely, the Veteran trying to establish his underlying entitlement to service connection, and this claim since has been granted and he has appealed a "downstream" issue such as the initial rating assigned for his disability, the underlying claim has been more than substantiated, it has been proven, thereby rendering § 5103(a) notice no longer required because the initial intended purpose of the notice has been served. See Goodwin v. Peake, 22 Vet. App. 128 (2008). So, in this situation, VA is not required to provide him additional VCAA notice concerning the downstream disability rating and effective date elements of his claim. See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) and VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). Rather, according to the holding in Goodwin, etc., instead of issuing an additional VCAA notice letter in this situation concerning the downstream disability rating element of the claim, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue an SOC if the disagreement is not resolved, and this was done. Indeed, the Veteran also has received an SSOC concerning this downstream issue. And both the SOC and SSOC cite the applicable statutes and regulations and contain discussion of the reasons or bases for initially assigning just a 0 percent rating for this disability. The Veteran has received all essential notice concerning this claim and has had a meaningful opportunity to participate effectively in the development of this claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Prinicipi, 353 F.3d 1369 (Fed. Cir., 2004). An RO letter in December 2007 advised him of all elements required by 38 C.F.R. § 3.159(b). He was also notified that he should submit evidence demonstrating the worsening of this disability, including any medical evidence or statements from individuals who have personal knowledge the disability had become worse or information regarding how his condition affects his ability to work. Additionally, VA notified him that it would help him get any necessary evidence to support his claim, including employment records. Thus, he was provided all of the necessary information to substantiate this claim. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). The claim was subsequently readjudicated in a June 2010 SOC and August 2012 SSOC, so has been reconsidered since providing all required notice. Regarding the duty to assist, VA obtained his service treatment records (STRs) and copies of his VA treatment records. He also has submitted copies of his private treatment records. A record from the Social Security Administration (SSA) in March 2003 notes that he had been found disabled due to lower back and right knee pain, as well as depression. Other records from SSA are not in the file, but as they are not shown to be relevant to his headaches claim on appeal, there is no need to obtain these records. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (indicating VA need only obtain relevant SSA records, which, under 38 U.S.C. § 5103A, are those records relating to the injury for which the Veteran is seeking VA benefits and have a reasonable possibility of helping to substantiate the claim). The RO also has provided him VA compensation examinations addressing the severity of his headaches. He had these medical evaluations in January 1975, June 1980, June 2009, September 2010, and June 2012. VA has not made efforts to supplement the record with any relevant treatment records for headaches between the original denial of the cephalgia claim in 1975 and his present service connection claim that was received in June 2007. However, he submitted some pertinent information during that time period, and the Board is assigning a higher 50 percent rating for the entire appeal period, so dating back to August 14, 1974, based on the existing medical evidence of record. And while he did not specifically state that he would be satisfied with this greater rating, thereby not necessarily making this grant satisfaction of his claim entirely, it is indication the Board had sufficient evidence already in the file to grant entitlement to the maximum possible schedular rating for headaches. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). The duty to assist therefore has been satisfied. And because VA's duties to notify and assist him with this claim have been met, there is no prejudice to him in going ahead and adjudicating this claim. III. Increased Rating for the Headaches Because a revision of the March 1975 decision that was the product of CUE has been deemed warranted, this appeal stems from a grant of service connection for cephalgia (or headaches) in March 1975 with an effective date of August 14, 1974, that being the day after the Veteran's medical retirement from service. Therefore, the relevant time period for considering the appropriate rating for his headaches is at all times since. Disability ratings are based on the average impairment of earning capacity resulting from a disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). An evaluation of the level of disability present includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the history of the disability. 38 C.F.R. §§ 4.1, 4.2, 4.41. See also Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). 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). In the Fenderson case already cited, the Court emphasized the distinction between a new claim for an increased evaluation of a service-connected disability and a case, such as this one, in which a Veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been recognized as service connected. VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim - a practice known as "staged" rating. See also Hart v. Mansfield, 21 Vet. App 505 (2007) (since extending this practice even to claims that do not involve initial ratings, rather, established ratings). As the Board will explain, the Veteran has been disabled on account of this disability commensurate with a 50 percent rating effectively since August 14, 1974, hence, from a much earlier effective date. Under the anti-pyramiding provision of 38 C.F.R. § 4.14, the evaluation of the "same disability" or the "same manifestation" under various diagnoses is to be avoided. The Court held in Esteban v. Brown, 6 Vet. App. 259 (1994), that for purposes of determining whether the appellant is entitled to separate ratings for different problems or residuals of an injury, such that separate evaluations do not violate the prohibition against pyramiding, the critical element is that none of the symptomatology for any one of the conditions is duplicative of, or overlapping with, the symptomatology of the other conditions. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). The Veteran's headaches are rated under 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100. This diagnostic code has not been revised since August 14, 1974, the effective date of the grant of service connection for headaches. DC 8100 concerns migraines. A 10 percent rating is assigned for migraines with characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent rating is assigned for migraines with characteristic prostrating attacks occurring on an average once a month over last several months. A 50 percent rating is assigned for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The Veteran was medically retired from the Navy in August 1974, in part, due to a diagnosis of cephalgia secondary to paravertebral muscle spasm. Five months later, in January 1975, he had a VA compensation examination. He complained of very bad headaches all the time that were in the frontal occipital region. The diagnosis was cephalgia. It was noted that he was then currently unemployed. A February 1978 letter was submitted from a private doctor, who noted that he had first treated the Veteran in November 1977 when he was complaining of pain in the cervical area, as well as headaches. He was found to have cervical spondylosis and cervical neuritis secondary to spondylosis. The doctor stated that in his opinion the Veteran was not able to function properly in most job activities due to this situation and that it was his opinion that the Veteran was disabled. A March 1980 Army Hospital record shows the Veteran was evaluated for his cervical spondylosis and cephalgia secondary to paravertebral muscle spasm. He continued to have headaches on a daily recurrence. In June 1980, he had another VA examination, at which time he complained of pain all the time in his head. The examination report, however, focused mainly on his cervical spine complaints. A Physical Evaluation Board (PEB) was convened in September 1980 by members of the US Navy, Marine Corps, and Navy Reserves. The Veteran's counsel asserted that for the past six years, so since his discharge from service, his condition had not changed and that he experienced constant pain, specifically in his head, neck, shoulders, arms, and hands. At times it was sharp pain and numbness set in rendering him unable to use the body party involved. In addition he had found his disability to be a real hindrance at work. In fact a then recent job was lost because of frequency of sick days. The Physical Evaluation Board recommended the Veteran be found unfit for duty because of his disability, which was permanent in nature. It was noted that he would probably not be able to cope fully and consistently with the duties of his rate at sea because of the distracting nature of cervical pain and headache. Throughout the day his headaches never ceased and affected not only his enjoyment of life but also his ability to concentrate in a working environment. The Physical Evaluation Board determined that, clearly, his condition had not improved since his retirement from service and that the realities of his physical impairment had had their toll on his economic marketability. Years later, a private physical therapy progress note in March 2009 shows the Veteran continued to carry the diagnosis of chronic headaches and myofascial pain and had reported onset of symptoms due to a cervical spine disability that had started in 1974 during his military service. His chief complaint was diffuse cervical spine tightness and constant occipital, frontal, and temporal lobe headaches that he rated at a severity of 8 on a scale of 1 to 10 at the then present, with the maximum being a 10 out of 10. The pain was made worse by light sensitivity and was unmanaged at the time. His ex-wife submitted a statement in April 2009 that he had a headache 24 hours a day, 7 days a week, and that sometimes the headaches would be so severe that he could not function. When the pain became this bad all he could do was go to a quiet dark room until the pain lessened. She mentioned that they had been married for 16 years and that the entire time he had suffered from headaches. His brother and friend also submitted statements in support of his claim, indicating they had known him to constantly complain of headaches. In June 2009, the Veteran had another VA compensation examination. He reported that the headaches were still constant in nature and described them as a dull ache that did not throb, located in the frontal cranial region, radiating to the occipital scalp and into the upper neck musculature. The pain was worsened by bright lights and, at times, loud noises. Perhaps once a week, he would sit in a quiet, dark room for relief. A recent computed tomography (CT) scan of his was negative. He had retired from full-time sales in 2000, citing multiple family medical issues. It was noted that he had weekly migraine headaches that were not prostrating; ordinary activity was possible. The usual duration was longer than two days. The examiner's opinion was that the Veteran had chronic headaches due to cervical degenerative disc disease and resultant cervical muscle spasms. The rationale was that headaches were well-known to result from cervical spinal disease, via resultant compensatory muscle spasm and pain, which was referred to the cranium. A November 2009 VA treatment record notes continued complaints of chronic daily headaches. The Veteran's current wife submitted a statement in August 2010 that since she had met her husband five years prior she had seen that his headaches had increased in severity. Sometimes his headaches were so bad that he had to lie down in a dark quiet room and do nothing. Usually this would last about one half hour up to six hours or more at a time. Another VA examination was performed in September 2010. It was noted that the Veteran's headaches had become progressively worse. They were described as a crushing type pain associated with cervical muscle spasm and pain and they were constant. There was no aura, phonophobia or photophobia, scotomata, or associated nausea and vomiting. On physical examination there were tight trapezius muscles with triggering. Compression of the muscles replicated the headaches. The effect of the headaches on his usual occupation was that he had decreased concentration, difficulty following instructions, decreased mobility, lack of stamina, weakness or fatigue, and pain. He also frequently avoided activities because of his headaches. He was presently retired as of January 2000. The reason he gave was cervical pain and family medical problems. He had his most recent VA compensation examination in June 2012. He reported that his headaches had slowly become worse over the years. He described a constant head pain, pulsating or throbbing head pain, pain on both sides of the head, and pain that worsened with physical activity. He also had sensitivity to light and sound. The head pain was there all the time during waking hours. He had characteristic prostrating attacks of migraine headache pain that were more frequent than once per month. It was also specifically mentioned that he had very frequent prostrating and prolonged attacks of migraine headache pain. In addition the headaches impacted his ability to work. He was retired as an outside sales representative. He stated that he could not go in to work due to the pain and that he also would leave after getting to work due to the pain. He would lay down in his car with a headache and the pain would affect his concentration. In evaluating the evidence of record, the Board finds that, more or less, since August 14, 1974, the Veteran's headaches have been manifested by very frequent, completely prostrating attacks that are prolonged and productive of severe economic inadaptability. After being medically retired from the Navy in August 1974, in part due to a diagnosis of cephalgia secondary to paravertebral muscle spasm, just five months later, in January 1975, he continued to complain of very bad headaches all the time (so constantly) that were in the frontal occipital region. It was noted that he was not then employed, but it was not specifically found that this was due to his headaches. However, in February 1978, a doctor found that the Veteran had cervical pain and headaches and that he was unable to function properly in most job activities due to this situation. He nonetheless apparently continued to work for many more years until retiring in 2000 or thereabouts. In the interim, though, he continued to experience constant headaches through September 1980, at which time, with the assistance of his counsel, he testified at a Physical Evaluation Board convened by members of the US Navy, Marine Corps, and Navy Reserves that his disability had been a real hindrance at work; in fact, a then recent job had been lost because of the frequency of sick days. The Physical Evaluation Board recommended he be found unfit for duty because of his permanent disability and the distracting nature of cervical pain and headache. It was confirmed that his headaches never ceased and affected his ability to concentrate in a working environment. It was further found that his physical impairment had had its toll on his economic marketability. After the September 1980 record, there is a nearly 30-year time gap in medical records. However, in March 2009, the Veteran reported continued daily headaches since 1974, so since the conclusion of his military service. He stated that his chief complaint was diffuse cervical spine tightness and constant occipital, frontal, and temporal lobe headaches that he rated at a severity of 8 on a scale of 1 to 10 at the then present, with the maximum being a 10 out of 10. His ex-wife of 16 years and wife of 5 plus years, as well as friends and family, also have submitted statements attesting that they, too, have noticed him complaining about and experiencing constant headaches over the years. Indeed, both his ex-wife and present wife stated that sometimes the headaches were so severe that he could not function and would have to stay in a quiet, dark room until the pain lessened, which lasted for up to six hours. The reported constant nature of these headaches, and severity of them when they occur, are commensurate with concluding they are very frequent, prolonged, prostrating attacks of the type required for a higher (and maximum possible) 50 percent rating under DC 8100. This is especially true since the Veteran is most times completely unable to function during these occasions, and it has been more or less continuous over the years since 1974. As for whether these prostrating attacks caused severe economic inadaptability, the Veteran was working in sales at some point and reportedly retired in 2000 due to cervical pain (which is related to his headaches) and "family medical problems." So it is not entirely certain based on the contemporaneous evidence whether his headaches caused severe economic inadaptability during those intervening years from 1980 to 2000. However, evidence dated more recently that refers back to that time frame from 1980 to 2000 supports the finding of severe economic inadaptability. On examination in June 2012, as an example, he stated that he was retired as an outside sales representative, but that when he was working he often could not go in to work due to the pain and also would have to leave after getting to work due to the pain. He indicated that he would lay down in his car with a headache and the pain would affect his concentration. The June 2012 examiner confirmed these headaches impacted the Veteran's ability to work. The previous examination report in September 2010 also noted that the effect of the headaches on the Veteran's usual occupation was that he had decreased concentration, difficulty following instructions, decreased mobility, lack of stamina, weakness or fatigue, and pain. These findings are very similar to the findings of the military board that was convened in September 1980, which noted that the Veteran had problems concentrating due to the constant pain caused by his headaches and found that his physical impairment had had its toll on his economic marketability. Thus, even though there is a scarcity of medical evidence in the interim from 1980 to 2000 concerning whether there was severe economic inadaptability due to the headaches, there is no requirement this prerequisite for the higher 50 percent rating be established by medical evidence, alone. Rather, it is acceptable to also have supporting lay or other evidence on this point, if, as here, this evidence is competent and credible, so ultimately probative. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted). As held in Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), VA must give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. See also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence" such as actual treatment records). The Veteran is competent to report on what he can observe and feel through his senses. See Layno. When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Headaches are a type of disorder that can be easily identified by a lay person who is experiencing them or even, for the matter, by bystanders. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases 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). To this end, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit Court, citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Veterans Court (CAVC) similarly has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing when he has testified. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, aff'd per curiam, 78 F.3d 604(Fed. Cir. 1996). See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). Here again, though, there is no inherent reason to question the Veteran's credibility, including as concerning the nature and extent of his headaches since service. The same is true of the several lay statements that have been submitted on his behalf. But aside from this, the medical evidence as recent as June 2012 demonstrates continued findings of very frequent completely prostrating and prolonged attacks resulting in severe economic inadaptability. Although the June 2009 VA examination report noted that the Veteran's weekly migraine headaches were not prostrating in that ordinary activity was possible, the examiner seemed to contradict himself by also noting that when the headache pain worsened the Veteran had to sit in a quiet, dark room for relief, which does not seem to qualify as "ordinary activity." These instances where he had to sit in a room were noted to happen only once a week, rather than very frequently as is required for a 50 percent rating. However, the Board does not find that this anomaly in the medical findings is enough to establish a lower staged rating as of the date of the June 2009 VA examination report. After this examination the Veteran continued to report constant headaches that involved prostrating attacks. He also continued to report that he had to stay home from work or leave work over the years that he had been working prior to 2000. Most of the Veteran's symptoms associated with his headaches are purely subjective, but, again, he is competent to state that he has had severe headaches that cause him to need to lie down. CT evaluation of his head was normal in June 2009, and there never has been any indication that these service-connected headaches are related to a traumatic brain injury (TBI). Thus, consideration of 38 C.F.R. § 4.124a, DC 8045, is not warranted. Finally, with respect to the effective date of this higher 50 percent rating for the headaches, as this claim stems from the overturning of the March 1975 decision on the grounds of CUE to allow for the granting of service connection as though it was awarded in that initial decision, the effective date provisions for service connection claims apply. Under 38 C.F.R. § 3.400(b)(2)(i) the effective date for direct service connection is the day following separation from active service or date entitlement arose if the claim is received within one year after separation from service; otherwise, the date of receipt of the claim, or the date entitlement arose, whichever is later, will be the effective date. The Veteran was medically retired from active duty on August 13, 1974, and the claim on appeal (i.e., the claim filed prior to the initial March 1975 rating decision) was received by the RO within one year of his separation from service. Thus, the effective date is the date after his separation from service, as this is coincident with when the date entitlement to service connection arose. See 38 C.F.R. § 3.400(b)(2)(i). For these reasons and bases, the Board finds that the evidence of record supports the higher 50 percent rating for this disability from an earlier effective date, that is, as of August 14, 1974. To the extent that any further increase in compensation is desired by the Veteran, however, it is not established. IV. Extra-schedular Consideration The Veteran now has the highest possible schedular rating under DC 8100 of 50 percent for his headaches. This, in turn, requires that the Board also consider whether he is entitled to even greater compensation on an extra-schedular basis. See Bagwell v. Brown, 9 Vet. App. 337 (1996). The Rating Schedule represents, as far as is practicable, the average impairment of earning capacity. Ratings generally will be based on average impairment. See 38 C.F.R. § 3.321(a), (b) (2011). To afford justice in exceptional situations, an extra-schedular rating may be assigned. See 38 C.F.R. § 3.321(b). The Board is precluded from assigning a higher rating on this special alternative basis, in the first instance, having instead to refer the matter to the Under Secretary for Benefits or the Director of Compensation and Pension (C&P) Service for this initial consideration. See Barringer v. Peake, 22 Vet. App. 242 (2008). The Court has clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. When working, the Veteran reported that he had functional impairment due to frequent severe headaches resulting in him often missing time from work, either because he had to take leave and did not go into work at all or, even when he went, had to leave early. But DC 8100 contemplates very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability for a 50 percent rating, which is assigned by the Board for the entire appeal period. Thus, his symptoms associated with this disability do not denote an exceptional or unusual disability picture. That is to say, the symptoms are not shown to cause any impairment that is not already contemplated by the applicable rating criteria. According to 38 C.F.R. § 4.1, generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. This is especially true when, as here, the Veteran has a rating that it is in the higher end of the rating spectrum for the particular disability at issue. See, too, Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (reiterating that the disability rating, itself, is recognition that industrial capabilities are impaired). Also, most, if not all, of the evaluation and treatment he has received for his headaches has been on an outpatient basis, not as an inpatient, certainly not frequent inpatient. Hence, the Board is not obligated to refer this claim for extraschedular consideration. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). ORDER There was CUE in the March 1975 rating decision that denied service connection for cephalgia (headaches), so that decision is reversed; thus, rather than denied, service connection for cephalgia is granted effective August 14, 1974. A higher 50 percent initial rating, though no greater rating, is granted for these headaches retroactively effective as of August 14, 1974 (rather than just a 0 percent rating as of June 27, 2007), subject to the statutes and regulations governing the payment of VA compensation. REMAND With respect to the derivative claim for a TDIU, the Veteran has submitted evidence suggesting he is unable to work on account of his service-connected headaches. He noted that he retired in 2000, in part, due to his cervical spine disability, which also is a service-connected disability that has been found to be related to his headaches. The September 2010 and June 2012 VA examination reports both note that his headaches impacted his ability to work and that he frequently avoided activities because of his headaches. The Board has jurisdiction over his claim for a TDIU effective the date of his service-connected disability rating on August 14, 1974, pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (holding that "a request for TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation"). He met the schedular criteria for a TDIU due to service-connected disabilities as of April 24, 2007 (i.e., at least one disability that is 40% or more and sufficient additional disability to bring the combined rating to 70% or more). 38 C.F.R. § 4.16(a). As of April 24, 2007, he had a cervical spine disability rated at 20%, associated with a headaches disability rated at 50%, which combine to be rated as one disability with a single etiology that is 60% disabling, and tinnitus and bilateral hearing loss each rated 10%, for a total disability rating of 70%. 38 C.F.R. § 4.25. However, even prior to that date, he could still get entitlement to a TDIU if it was warranted on an extra-schedular basis under 38 C.F.R. § 4.16(b). Thus, the issue of entitlement to a TDIU effective August 14, 1974 or at any time since has not been resolved and, thus, needs to be addressed on remand. Accordingly, this remaining TDIU claim is REMANDED for the following additional development and consideration: 1. Send the Veteran a VCAA notice letter addressing his derivative claim of entitlement to a TDIU. Also ask that, in response, he identify all relevant evidence regarding his employability status since August 14, 1974. This includes providing information concerning jobs he had in the past and why they ended, such as on a TDIU application (VA Form 21-8940). If records concerning his prior employment need to be obtained, then obtain them. If records identified are not in the custody of a Federal department or agency, then the attempts to obtain them are governed by 38 C.F.R. § 3.159(c)(1), whereas subpart (c)(2) controls if they are. Also appropriately notify the Veteran is unable to obtain identified records. 38 C.F.R. § 3.159(e)(1). 2. Upon receipt of all additional records, have the Veteran examined for a medical opinion concerning whether his service-connected disabilities render him incapable of obtaining and maintaining employment that could be considered substantially gainful was just marginal in comparison. It therefore is essential the designated examiner have opportunity to review the evidence in the claims file, including a complete copy of this decision and remand. The VA examiner must discuss the rationale of this opinion on employability, if necessary citing to specific evidence in the file. In making this determination, the VA examiner must consider the Veteran's level of education, prior work experience and training, etc., but not his advancing age or impairment attributable to disabilities that are not service connected. 3. Ensure the examiner's opinion is responsive to this determinative issue of employability. If not, take corrective action. 38 C.F.R. § 4.2. 4. Then adjudicate this remaining TDIU claim in light of the additional evidence. If deemed warranted, refer this claim to the Director of C&P Service for consideration of a TDIU on an extra-schedular basis under 38 C.F.R. § 4.16 (b) for any time from August 14, 1974 to April 24, 2007. If this claim is not granted to the Veteran's satisfaction, send him and his representative another SSOC and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this remaining claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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. 2011). ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs