Citation Nr: 1304622 Decision Date: 02/08/13 Archive Date: 02/19/13 DOCKET NO. 10-23 172 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for migraine headaches. 2. Entitlement to an initial evaluation in excess of 10 percent for residuals of a meniscus tear of the right knee. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran had active service from June 1971 to May 1978, and from October 1990 to June 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Where, as is the case here with respect to the increased rating claim for headaches, an award of service connection for a disability has been granted and the assignment of an initial disability evaluation is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged,". As such, that claim is characterized as "initial" as shown on the title page of this decision. Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). For purposes of clarification, the Board observes that the increased rating claim involving the right knee disability is also an initial rating claim. Service connection was granted for a right knee disability in a February 2005 rating action, at which time a noncompensable evaluation was assigned effective from September 3, 2004. That decision was not appealed. The Veteran filed an increased rating claim on October 3, 2007. Thereafter, in a May 2010 rating decision, the RO assigned a 10 percent evaluation for the right knee, effective from September 3, 2004, the date of the original claim. Accordingly, the claim is, in effect, an appeal of the initial rating assigned. In November 2012, the Veteran provided testimony at a hearing before the undersigned Veterans Law Judge sitting at the VA Regional Office in Waco, Texas. A transcript of that hearing is on file. A February 2013 review of the Virtual VA paperless claims processing system reveals additional VA/CAPRI records last compiled in August 2012 and current to July 2012. In a statement signed in July 2012, the Veteran specifically requested a waiver of RO consideration of this evidence, and of evidence physically added to the record, received in August 2012. The increased rating claim for a right knee disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. For the portion of the appeal period extending from September 3, 2004 to March 24, 2009, the Veteran's service-connected migraine headaches were not productive of characteristic prostrating attacks occurring on an average once a month over the last several months. 2. For the portion of the appeal period extending from March 25, 2009 forward, the frequency, duration, and severity of the Veteran's migraine headaches is analogous to characteristic prostrating attacks occurring on an average once a month over the last several months. 3. At no time during the appeal period have the Veteran's migraine headaches been manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. For the portion of the appeal period extending from September 3, 2004 to March 24, 2009, the criteria for an initial rating in excess of 10 percent for migraine headaches have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2012). 2. For the portion of the appeal period extending from March 25, 2009 forward, the criteria for an initial 30 percent rating, but no higher, for migraine headaches have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). With respect to the initial rating claim on appeal, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran dated in December 2007 (addressing the elements of service connection prior to the grant of service connection for migraine headaches). As this is also an appeal arising from a grant of service connection, the notice that was provided before service connection was granted was legally sufficient and VA's duty to notify the Veteran in this case has been satisfied. See Hartman v. Nicholson, 483 F.3d 1311 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). In this regard, VA's General Counsel has held that no VCAA notice is required for such downstream issues. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). In addition, the Board notes that the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). In this case, the Veteran's claim for service connection for his migraine headaches was granted and an initial rating was assigned in the May 2010 rating decision on appeal. Therefore, as the Veteran has appealed with respect to the initially assigned rating, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Board also finds that all of the relevant facts have been properly developed, and that all available evidence necessary for an equitable resolution of the issues on appeal has been obtained. The Veteran's service treatment and post-service treatment records were obtained and the file includes arguments, contentions, and statements of the Veteran, his spouse, and his representative. In addition, VA examinations relating to headaches were conducted in 2007 and 2011 and neither the Veteran nor his representative has suggested that any VA examination report was in any way inadequate. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011), (in the absence of a challenge to the adequacy of the examination, the Board is not required to explicitly explain why each medical opinion is adequate). The Board notes that the Veteran's representative has argued that the most recent examination addressing headaches was more than a year old and that a new examination was needed to determine the severity of the Veteran's headaches. VA's duty to assist includes obtaining an examination and medical opinion when necessary to make an adequate determination. See Duenas v. Principi, 18 Vet. App. 512 (2004). Having reviewed the file in its entirety, the Board finds no basis for a new examination. The 2011 examination is both recent and comprehensive. Moreover, any subsequent new/additional lay and clinical information has been provided in the Veteran's July 2012 Board hearing testimony and in VA records current through late July 2012. Hence, another examination is not necessary in this case to make an adequate determination. Moreover, the aforementioned evidence has provided a basis for an increased evaluation in this case, as will be discussed herein. The Veteran testified in support of the claim at a July 2012 Board hearing before the undersigned Veterans Law Judge. The Veteran has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) in the conduct of the Board hearing nor has he otherwise alleged or identified any prejudice in the conduct of the Board hearing. Rather, the hearing focused on the elements necessary for claim substantiation and the Veteran, via testimony, demonstrated actual knowledge of the elements necessary for claim substantiation. The Board finds that, consistent with the holding in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. 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 appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. Factual Background The Veteran filed an original service connection claim for headaches on September 3, 2004. The file contains a May 2005 private medical statement indicating that the Veteran had been treated by Dr. R.U. on numerous occasions between January 1992 and January 1999. A May 2005 record of Dr. L.B. reflects that the Veteran was seen for a 2 day history of headaches with nausea, assessed as migraines. In a November 2005 statement, the Veteran reported that in May 2005, Dr. B. had given him Zomig spray for treatment of headaches. He also reported that in November 2005, Dr. J. gave him an injection for his migraine headaches and prescribed Axert, Migquin, and Promethazine. In April 2006, Dr. R. U. provided a medical statement indicating that he had been treating the Veteran intermittently since 1997 for migraine headaches. It was noted that he had come for treatment with a previous diagnosis of migraines and had reported that these started in the military. It was noted that the headaches were treated with medications such as Imitrex. Private medical records document complaints of headaches in November 2005, June 2006, August 2006 and January 2007. A VA record of July 2006 documents a history headaches since 1991, occurring once every 1 to 2 weeks, described as "global" and associated with photophobia and nausea. It was noted that this condition had been previously treated with Imitrx, but due to hypertension, it was now being treated with Excedrin migraine. He did not have a headache upon appointment. Migraine headaches were assessed. A VA examination was conducted in March 2007 and the claims folder was reviewed. The history indicated that the Veteran had complained of migraine headaches in November 1990 during service and had acknowledged having recurrent headaches on a May 1991 physical examination form. It was also noted that he had been medically followed for headache symptoms since 1992. On examination, the Veteran reported that he got headaches 2 to 3 times a week, pulsating in nature, and associated with nausea, photophobia, and phonophobia. During headache episodes the Veteran stated that he would take a Fioricet and the headache would resolve in a couple of hours; but he had to lie down in a dark room and was incapacitated in the meantime. It was noted that about 4 times a year, he went to a private doctor for injections due to severe headaches which did not respond to pills (last seen in January 2007). The report mentioned that Fioricet was working as treatment. Migraine headaches were diagnosed and the examiner opined that it was more likely than not etiologically related by continuity to military service. Private medical records document that the Veteran was seen for complaints of headaches in August 2007, assessed as headache tension, variant migraine headache and hypertension. He was seen for treatment of headaches in January 2007; August 2007 (3 day history), October 2007; November 2007 (associated with URI); January 2008 (3 day history), and February 2008 (intermittent headaches); (see also February 2008 statement of Dr. R.U.). In a March 2009 statement from the Veteran, he indicated that he had filed for Family Medical Leave Act (FMLA) status at his job. He mentioned that he had recently been seen by a VA neurologist and that Divalproex had been prescribed. A VA neurology consultation record of March 25, 2009 indicates that the Veteran complained of frequent headaches since 1991, described as throbbing. He indicated that he experienced headaches at least once a week, and reported that these occasionally lasted for 48 hours. He stated that he experienced mild headaches twice a week which were relieved by Excedrin. It was noted that at times he missed work due to headaches. The physician determined that the neurological examination was normal and that the Veteran's headaches were consistent with migraine without aura. It was noted that he was also experiencing tension headaches which at times evolved into migraines. It was concluded that the frequency, severity and duration of symptoms warranted preventive treatment and a trial of Depakote was recommended. The file contains the Veteran's FMLA application dated in April 2009 identifying migraine headaches as the primary disability. The report indicated that the Veteran experienced headache episodes 1 to 2 times a month, requiring 1 to 3 days of leave per episode. In April 2009, Dr. R.U. offered a statement for the file indicating that the Veteran had been treated on March 2009, and mentioning that there were times when he self-treated migraines without seeing a physician. When seen by VA neurology in September 2009, the Veteran reported that his headaches were under fair control. He mentioned having 1 to 2 headaches a week, mostly relived with over the counter medication. It was noted that he remained on Depakote for migraine prevention. In March 2010, the Veteran was seen for another VA neurology consultation At that time, he reported having 2 episodes of migraine headaches since September 2009, aborted with Zolmitriptan. An impression of migraine without aura under good control was made, with mention of only 2 headache episodes during the past 6 months. In April 2010, Dr. R. U. offered a statement for the record indicating that he had treated the Veteran for headaches on: February 2008, February 2009, March 2009, July 2009, October 2009, and February 2010. The Veteran's wife also provided a statement indicating that the Veteran had suffered from headaches since service and that post-service he sometimes received injections for treatment. She also confirmed that he had applied for FMLA status at work due to this condition. In a May 2010 rating action, service connection was established for migraine headaches, for which an initial 10 percent evaluation was assigned effective from September 3, 2004. In an August 2010 statement, the Veteran indicated that he believed that his headaches had increased in severity. Records from Dr. R.U. reflect treatment for headaches in February 2010 (mixed), and August 2010 (chronic, mild). A VA neurology note of September 23, 2010 indicates that the Veteran reported having an increase in his headache frequency during the past 4 months. It was noted that he was experiencing 2 to 3 headaches a week, described as throbbing, and that he was still taking Divalproex. A VA neurological examination was conducted in January 2011 and the claims folders were reviewed. The Veteran complained of having migraines for years. He reported that the condition was stable until about 6 months previously when they increased in severity. The report mentioned that a records review showed that the Veteran had been seen in March 2010 by Dr. E., at which time he reported having just 2 headache episodes during the past 6 months; in contrast, it was documented that when seen again by Dr. E. in September 2010, he reported that headaches were occurring 3 times a week. On examination, the Veteran reported that he had been having 3 to 4 headaches a week for the past 6 months, accompanied by throbbing pain. He indicated that the headaches last for 4 hours to all day, and described himself as incapacitated until the headache went away. The Veteran stated that he worked full-time and had not missed any work at the post office for the past 2 months, but had missed 6 to 7 days during the past year due to headaches. Treatment with the medications Depakote, Maxalt, and Excedrin was reported. Migraine headaches, symptomatic with residuals was diagnosed. A VA neurology note of February 2011, indicates that the Veteran had experienced a recent flare-up of headaches since September 2010. When seen in June 2011, it was noted that his headaches were under good control on 2 medications. The file contains the Veteran's FMLA application information dated January 2011, indicating that he had been approved for FMLA status, due to a history of intermittent migraine headaches. His physician certified that headaches occurred 1 to 2 times a month, lasting for 1 to 3 days per episode. Leave records from the Veteran's employer show that he missed 6 days of work due to headaches during 2010; and 8 days during 2011. The Veteran presented testimony at a Board hearing held in July 2012. He indicated that he was experiencing migraine headache 3 times a week, and indicated that once or twice a month he had to lay down in a dark room with ice packs. He estimated that he had experienced incapacitating headaches 6 to 7 times during the past year. He mentioned that he was under treatment through VA for headaches. The transcript reflects that the Veteran was employed as a mail handler and indicated that the headaches interfered with his employment, to the extent that he had to take medication. He estimated that he missed one day of work every 2 months due to headaches. At the hearing the Veteran also submitted a waiver pertaining to additional evidence added to the file, and in conjunction with VA records (on VVA) dated through July 2012. A review of VVA CAPRI records includes a March 2012 neurology note indicating that the reflects that Veteran reported having more frequent migraines, occurring 2 to 3 times a week, and at work. A July 2012 entry indicates that since last seen in March 2012, the Veteran reported improvement of the headache frequency with an increased Divalproex dose. Analysis The Veteran contends that his service-connected migraine headaches warrant an initial evaluation in excess of 10 percent. Disability ratings are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and there must be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.1. The Board attempts to determine the extent to which the Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that the rule from Francisco does not apply where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for a disability. Rather, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. More recently, the United States Court of Appeals for Veterans Claims (Court) held that "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. The Veteran's service-connected migraine headaches have been assigned an initial 10 percent disability rating for the entirety of the appeal period extending from September 3, 2004, pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2012). The provisions of 38 C.F.R. § 4.124a, Diagnostic Code 8100, provide for a 50 percent rating for migraine with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 30 percent rating is assigned for migraine with characteristic prostrating attacks occurring on an average once a month over last several months. A 10 percent rating is provided for migraine with characteristic prostrating attacks averaging one in 2 months over last several months. The rating criteria do not define "prostrating;" nor has the Court. Cf. Fenderson v. West, 12 Vet. App. 119 (1999) (in which the Court quotes Diagnostic Code 8100 verbatim but does not specifically address the matter of what is a prostrating attack). By way of reference, the Board notes that according to WEBSTER'S NEW WORLD DICTIONARY OF AMERICAN ENGLISH, THIRD COLLEGE EDITION (1986), p. 1080, "prostration" is defined as "utter physical exhaustion or helplessness." A very similar definition is found in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th Ed. 1994), in which "prostration" is defined as "extreme exhaustion or powerlessness." In order to be entitled to a higher initial rating to 30 percent, the evidence must show that the Veteran has characteristic prostrating attacks from his headaches, occurring on an average once a month over the last several months. Having evaluated both the lay and clinical evidence presented for the record, the Board concludes that staged ratings are appropriate in this case. In this regard, evidence dated prior to March 25, 2009, simply does not show that the Veteran has had chronic prostrating headaches with the specified frequency and duration. For instance, private medical record document complaints of/treatment for headaches in November 2005, June 2006, August 2006 and January 2007, indicating that prostrating attacks did not occur on an average once a month over a duration of several months. Further, on examination of March 2007, the Veteran reported that he got headaches 2 to 3 times a week, pulsating in nature, and associated with nausea, photophobia, and phonophobia. However, at that time he indicated that the headaches would resolve in a couple of hours; accordingly, they were not of such severity as to meet the definition of prostrating. In addition, while the Veteran was treated by his private provider on January 2007; August 2007, October 2007; November 2007, January 2008, and February 2008, there is no indication that prostrating headaches were complained of or treated on any of these occasions. In summary, the evidence of record does not support an initial rating in excess of 10 percent for headaches under Diagnostic Code 8100 for the portion of the appeal period extending from September 3, 2004 to March 24, 2009. Although during this time period the Veteran complained of frequent headaches, the applicable rating criteria link ratings for headaches to the following two primary elements: severity and frequency. It is not sufficient to demonstrate the existence of a particular frequency of headaches; the headaches must be of a specific prostrating character. As explained above, the most probative evidence on record does not indicate that the Veteran's headaches were prostrating during this time period and accordingly, to this extent the appeal is denied. In contrast, the Board concludes that, with resolution of any reasonable doubt in the Veteran's favor, the criteria for the assignment of an initial 30 percent evaluation for migraine headaches have been met effective from March 25, 2009. At that time and thereafter, evidence established that the Veteran was experiencing headaches at least once a week, reportedly occasionally lasting for 48 hours and resulting in absences from work. Such reports reveal the kind of frequency and arguably severity contemplated by the rating criteria consistent with the assignment of a 30 percent evaluation. In this regard, and further supporting this determination, the Board finds very probative the Veteran's FMLA application dated in April 2009 identifying migraine headaches as the primary disability affecting his employment and reflecting that a physician certified that the Veteran experienced headache episodes 1 to 2 times a month, requiring 1 to 3 days of leave per episode. The Board further observes that subsequent evidence, including the 2011 VA examination report and the Veteran's 2012 Board hearing testimony, provide further evidence of a frequency and severity of headaches consistent with a 30 percent evaluation. To this extent, the claim is granted. However, at no time during the appeal period does the evidence demonstrate very frequent and prolonged migraines resulting in severe economic inadaptability, as required for a 50 percent evaluation. Significantly, the use of the conjunctive "and" in a statutory provision means that all of the conditions listed in the provision must be met). See Melson v. Derwinski, 1 Vet. App. 334 (1991); compare with Johnson v. Brown, 7 Vet. App. 95 (1994) (holding that only one disjunctive "or" requirement must be met in order for an increased rating to be assigned). In this regard, the Board acknowledges that the Veteran's headaches are arguably frequent. However, evidence reflects that the Veteran has worked for the postal service for years and there is no indication that his job is at risk due to his headache disorder or leave taken in association with this disorder. Hence, at this point there is no evidence of severe economic inadaptability due to headaches in this case. In summary, for the portion of the appeal period extending from September 3, 2004 to March 24, 2009, the criteria for an initial evaluation in excess of 10 percent for migraine headaches have not been met and to that extent the claim is denied. However, for the portion of the appeal period extending from March 25, 2009 forward, the criteria for a 30 percent evaluation, but no higher, have been met and to this extent, with application of the benefit-of the-doubt doctrine, the appeal is granted. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). Extraschedular Consideration In general, the schedular disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The application of such schedular criteria was discussed in great detail above. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Id. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe a Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe a Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, consideration of the next analytical step is not undertaken and referral for extraschedular consideration is not required. But if the RO or the Board finds that the schedular evaluation does not contemplate a Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether a Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, the symptoms described by the Veteran and in the clinical records fit squarely within the criteria found in the relevant diagnostic code (8100) used for evaluating headaches. In short, for the reasons already set forth above in denying the appeal for an initial rating in excess of 10 percent for headaches for a portion of the appeal period, as well as the reasons for granting an increased rating of 30 percent for the portion of the appeal period extending from March 25, 2009 forward, the rating criteria contemplate not only his symptoms but the severity of the condition, and provide an opportunity for the assignment of a still higher evaluation. Therefore, as the assigned ratings are adequate, analysis of the next step of whether an exceptional disability picture is presented is not for consideration and referral for extraschedular consideration is not warranted. In addition, the Board notes that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for a higher rating is whether a total rating based on individual unemployability (TDIU) as a result of that disability is warranted. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran is still employed. As such, consideration of TDIU is not warranted. ORDER For the portion of the appeal period extending from September 3, 2004 to March 24, 2009, an initial rating in excess of 10 percent for migraine headaches is denied. For the portion of the appeal period extending from March 25, 2009 forward, a 30 percent rating , but no higher, for migraine headaches is granted, subject to the laws and regulations governing payment of monetary benefits. REMAND A remand is warranted in this case with respect to the Veteran's claim for an initial evaluation in excess of 10 percent for his right knee disability. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. §§ 5107(a) 5103A; 38 C.F.R. § 3.159(c). A brief review of the background indicates that the Veteran last underwent a comprehensive VA examination of the right knee in February 2008. A VA medical record dated in September 2009 reflects that an assessment of post traumatic degenerative joint disease of the right knee, with locking, was made. A January 2011 record indicates that the Veteran complained of right knee pain, worse in cold weather, and that he was ambulating with a limp and had a hinged knee brace. Good range of motion, tenderness, and stability to maneuvers were noted. Post traumatic degenerative joint disease of the right knee, with locking, was again assessed. In a statement provided from the Veteran in March 2012, he indicated that he suffered from episodes of locking, pain, and effusion in the joint. A private medical report of July 2012 shows that X-ray films of the right knee revealed mild degenerative changes at the patellofemoral joint. In Board hearing testimony presented in July 2012, the Veteran stated that his knee symptoms had become worse since last rated (examined) (p. 8). In addition, in a brief presented by the Veteran's representative in July 2012, it was pointed out a VA examination had not been conducted since 2008 and it was requested that a current examination be scheduled. 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. See VAOPGCPREC 11-95. However, a new examination is appropriate when there is an assertion of an increase in severity since the last examination, as is essentially the case here. See 38 C.F.R. § 3.159 (2012); see also Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995). Therefore, a new and contemporaneous examination should be administered to determine the manifestations and level of severity associated with the right knee disability. The Board observes that recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in requesting an examination for purposes for rating the severity of the right knee disability, the examiner will be asked to determine the overall level of functional impairment due to these factors. The Board also notes that CAPRI/VA treatment records dated through July 2012 have been associated with the claims file and in the VVA file. These records reflect that the Veteran has been receiving regular and ongoing treatment for his knee disability. In Bell v. Derwinski, 2 Vet. App. 611 (1992), the Court held that VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record, and that such documents are thus constructively part of the record before the Secretary and the Board, even where they are not actually before the adjudicating body. For this reason VA treatment records dated from August 2012, forward, will be requested. Additionally, the Veteran testified that he received private treatment from Dr. Uriegas for his right knee disability. As such, while on remand, he should be given an opportunity to submit, or request that VA obtain, additional records from Dr. Uriegas. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be given an opportunity to submit, or request that VA obtain, additional records from Dr. Uriegas relevant to his right knee disability. If the Veteran submits an authorization and consent form, records from Dr. Uriegas should be requested. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. CAPRI/VA records dated from August 2012 forward should be sought for inclusion in either the physical file of VVA file, as appropriate. 3. After obtaining any outstanding records, the Veteran should be scheduled for a VA orthopedic examination in order to assess the severity and symptomatology associated with the service-connected right knee disability. The entire claims file and a copy of this remand must be made available to the examiner for review in conjunction with conducting the examination of the Veteran. All necessary and indicated special studies or tests, shall be accomplished. The report of examination shall include a discussion of the Veteran's lay history and symptomatology as well as a summary of the pertinent lay and clinical history. The Veteran's employment history and status should also be provided and clarified to include indicating whether he is currently employed full-time or otherwise, and whether any special accommodations have been made for him due to his knee condition. The examination report shall address the following: a) Describe all symptoms caused by the service-connected right knee disability, as well as the severity of each symptom. In this regard, range of motion studies shall be conducted and the examiner shall also address whether the knee exhibits weakened movement, excess fatigability, or incoordination and, if feasible, these determinations should be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination, as well as discussing the overall level of functional impairment attributable to these factors. The examiner should express an opinion on whether pain could significantly limit functional ability during flare-ups or when the knee is used repeatedly over a period of time. This determination should also, if feasible, be described in terms of the degree of additional range of motion loss due to pain on use or during flare-ups. The examiner shall also state whether there is any instability/subluxation of the right knee, and if so, the severity of such should be described as slight, moderate, or severe. The examiner shall additionally indicate whether there is any cartilage, semilunar, dislocated, with frequent episodes of locking, pain, and effusion into the knee joint. The presence or absence of any ankylosis, favorable or unfavorable, to include the degree of any such shown in flexion or extension, should be reported. An assistive devices being used should be noted in terms of the nature and frequency of such. b) The examiner shall also provide an opinion as to whether the Veteran's service-connected right knee disability is productive of any marked interference with employment or daily activities. c) The examiner must provide a comprehensive report by including all pertinent diagnoses and a complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matter 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 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. 2012). ______________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs