Citation Nr: 1310649 Decision Date: 04/01/13 Archive Date: 04/11/13 DOCKET NO. 04-08 264 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York THE ISSUES 1. Entitlement to a rating in excess of 30 percent for encephalalgia, from June 1, 2004. 2. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) due to encephalalgia, from June 1, 2004 REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran had active military service from July 1966 to January 1967, as well as a day of active service in March 1970, and additional service with the Army National Guard. This appeal to the Board of Veterans' Appeals (Board) arose from February 2001 and January 2002 rating decisions of the RO. In February 2001, the RO continued a 0 percent (noncompensable) rating for the Veteran's bilateral hearing loss. The Veteran filed a notice of disagreement (NOD) in June 2001. In January 2002, the RO, inter alia, increased the rating for bilateral hearing loss from 0 to 30 percent from September 29, 2000, through January 7, 2002; assigned a 10 percent rating for bilateral hearing loss from January 8, 2002; continued a 10 percent rating for tinnitus; and continued a 0 percent rating for encephalalgia. The Veteran filed a NOD in March 2002, and the RO issued a statement of the case (SOC) in February 2004. The Veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) later that same month. In an April 2006 rating decision, the RO increased the rating for the Veteran's encephalalgia to 30 percent, effective June 1, 2004. In June 2006, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO; a transcript of the hearing is of record. In January 2007, the Board issued a decision denying the claim for an increased rating for tinnitus and remanding the remaining claims on appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC, for additional development. After accomplishing further action, the AMC continued the denial of the claims as reflected in a January 2009 supplemental SOC (SSOC), and returned the matters to the Board for further appellate consideration. In an August 2009 decision, the Board denied a higher rating for bilateral hearing loss for the period from September 29, 2000 through January 7, 2002, as well as denied an increased (compensable) rating for encephalalgia for the period from June 6, 2001, through May 31, 2004. At that time, the remaining matters then on appeal-namely, rating in excess of 10 percent for bilateral hearing loss from January 8, 2002 and a rating in excess of 30 percent for encephalalgia from June 1, 2004-were remanded to the RO, via the Appeals Management Center (AMC) in Washington, DC, for additional development. After accomplishing further action, the AMC continued to deny these matters (as reflected in a July 2011 SSOC,) and returned them to the Board for further appellate consideration. The Board denied both matters then remaining on appeal in a September 2011 decision. The Veteran, in turn, appealed the Board's denials to the United States Court of Appeals for Veterans Claims (Court). In April 2012, the Court granted a Joint Motion for Remand filed by representatives for both parties, vacating the September 2011 Board's decision and remanded the claims to the Board for further proceedings consistent with the Joint Motion. Given additional evidence submitted, and January 2013 argument from the Veteran's attorney that the Veteran is entitled to a TDIU from at least "June 1, 2004 onward," is warranted due to his service-connected encephalalgia, the Board has now characterized the appeal as encompassing the matter of entitlement to TDIU due to that disability, from June 1, 2004, consistent with Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board notes, however, that in a statement received in February 2013, the Veteran withdrew from appeal the claim a higher rating for hearing loss. Hence, the only matters remaining on appeal are those set forth on the title page. The Board's decision on the claim for higher rating for encephalalgia, from June 1, 2004, is set forth below. The claim for a TDIU due to encephalalgia, from June 1, 2004, is addressed in the remand following the order; this matter is being remanded to the RO, via the AMC. VA will notify the Veteran when further action. on his part, is required. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the matter herein decided have been accomplished. 2. While the Veteran has, at times, complained of increasingly frequent and severe headaches since June 1, 2004, the headaches are shown to be controlled by medication, and, although prostrating attacks have occurred, the weight of the evidence indicates that such attacks have not occurred frequently. 3. The applicable rating are adequate to rate the disability under consideration at all points pertinent to this appeal. CONCLUSION OF LAW The criteria for a rating higher than 30 percent for encephalalgia, from June 1, 2004, are not met. 38 U.S.C.A. §§ 1155 , 5103, 5103A, 5107 (West 2002 Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.20, 4.124a, DC 8100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. As regards the matter of entitlement to an increased rating for encephalalgia, the evidence reflects a November 2001 letter addressing this claim, prior to the initial adjudication of the claim by January 2002 rating decision, that provided notice to the appellant regarding what information and evidence is needed to substantiate a claim for a higher disability rating, as well as what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. Subsequently, the February 2004 SOC provided notice as to the criteria used to evaluate the Veteran's service-connected encephalalgia. A March 2004 letter specifically informed the Veteran to submit any evidence in his possession pertinent to the claim (consistent with Pelegrini and the version of 38 C.F.R. § 3.159 then in effect). An April 2006 letter, along with a February 2007 letter, provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. After issuance of the March 2004, April 2006, February 2007, and June 2011 letters, a July 2011 SSOC reflects readjudication of the claim. Hence, the Veteran is not shown to be prejudiced by the timing of the latter notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent medical evidence associated with the claims file consists of the Veteran's VA treatment records dated through August 2012; reports of February 2007 and November 2010 VA examinations; and a January 2013 statement from a private physician submitted on behalf of the Veteran by his attorney. Also of record and considered in connection with the appeal are the various written statements provided by the Veteran and on his behalf, to include argument presented by the Veteran's attorney and a statement from the Veteran's sister in law received in January 2013. The Board also finds that no further RO action to further develop the prior to appellate consideration of the claim remaining on appeal is warranted. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO/AMC, the Veteran has been notified and made aware of the evidence needed to substantiate his claim for an increased rating for encephalalgia, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim for an increased rating for encephalalgia. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on these matters. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Here, the only period under consideration is the period from June 1, 2004, forward. The Board notes that it has reviewed all of the evidence of record, to include in the Veteran's claims file and the Virtual VA file (VA's electronic data storage system), with an emphasis on the evidence relevant to this appeal. (The Virtual VA file does not contain any evidence or correspondence pertinent to the matter at hand.) Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran's service-connected encephalalgia is rated, by analogy, as migraine headaches. See 38 C.F.R. § 4.124a, DC 8100; see also 38 C.F.R. § 4.20. Under DC 8100, a 10 percent rating is warranted for headaches with characteristic prostrating attacks averaging one in 2 months over the last several months. Headaches with characteristic prostrating attacks occurring on an average of once a month over the last several months warrant a 30 percent rating. Very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a 50 percent rating. 38 C.F.R. § 4.124a. The rating criteria do not define "prostrating." The Board additionally observes that the Court has not undertaken to define "prostrating." According to Stedman's Medical Dictionary, 27th Edition (2000), pg. 1461, prostration is defined as "A marked loss of strength, as in exhaustion." Considering the pertinent evidence in light of the above, the Board finds that a rating higher than 30 percent for encephalalgia is not warranted at any time since June 1, 2004. The Board notes that the previously referenced August 2009 Board decision denied the Veteran's claim for an increased (compensable) rating for encephalalgia for the period from June 6, 2001, to May 31, 2004, and this decision was not appealed to the Court. As such, the only matter remaining for consideration is whether a rating for encephalalgia in excess of 30 percent may be assigned at any time after June 1, 2004. By way of background, however, the record reflects that the Veteran filed a claim for service connection for headaches in September 1976 as a residual of an injury sustained during Army National Guard duty in July 1976 in which an illumination round exploded over his head and pieces of the round burned the left leg and back. Service connection was ultimately granted for the asserted headaches by way of a September 1977 rating decision that granted service connection for encephalalgia at a noncompensable rating by analogy to DC 8100. Focusing on the evidence for the remainder of the period at issue, a June 2004 VA outpatient treatment record reflects headaches described as "frequent and intense" that were associated with nausea. The headaches, which were said to be "throbbing and achy," were reported to last from 40 minutes to all day and to occur twice a week. The assessment was occipital neuralgia vs. tension headaches and the Veteran was prescribed Elavil (Amitriptyline) as treatment. In September 2004, the Veteran complained about headaches that had worsened in intensity. He indicated that Elavil had helped, but that he ran out of this medication. The headaches were said to be associated with photophobia and that the Veteran had to stop all activities when the headaches occurred and go to sleep. A CT scan of the head was conducted at that time with normal results, and the Veteran was restarted with Elavil. A March 2005 VA neurology clinic report notes that Elavil had provided partial relief for the Veteran's headaches and that they had become less intense and less frequent. The Veteran described the headaches as being intense during VA outpatient treatment in September 2005 but he denied headaches during VA treatment in October 2005. Thereafter, a March 2007 VA outpatient treatment record indicates that the Veteran complaining about daily migraine headaches that he was treating with Elavil. He indicated that an increased dose of Elavil had helped the intensity of the headaches but not their frequency. The Veteran said the headaches were associated with severe left side neck pain at times as well as photophobia, phonophobia, and nausea. He reported that he was symptomatic five days a week, and the Veteran's Elavil prescription was increased at that time. Reports from a March 2007 VA outpatient psychology clinic visit show the Veteran noting that his headaches were being helped by Amitriptyline but that this mediation caused tiredness. A May 2007 VA outpatient treatment record reflects the examiner's notation that the Veteran's headaches were controlled with Amitriptyline. June 2007 VA neurology clinic outpatient treatment notes indicate that the Veteran complained about daily migraine headaches with insomnia and that he had no improvement with the addition of tizanidine. The headaches were described as involving throbbing pain and to a severity of 8/10 in intensity on a daily basis. The Veteran described associated symptoms of phonophobia, photophobia, nausea, and vomiting. It was also indicated that Amitriptyline had not been effective and that upon visiting the clinic that day, he was wearing a hat and sunglasses due to photophobia. The treatment plan was changed to slowly taper off Amitriptyline to be replaced with 60 milligrams of Cymbalta a day. The report of a June 2007 VA examination reflects that the Veteran complained of experiencing headaches since the aforementioned in-service explosion in 1976. He described the headaches as throbbing-like, and continuous. Bright lights or noise exacerbated the headaches. He reported that he experienced nausea, photophobia, and phonophobia from the headaches which left him completely incapacitated. Lying in a dark room offered mild relief. Objectively, the neurological examination was normal. Thereafter, October 2007, February, July 2008, December 2008, January 2009, July 2009, and March 2010 VA outpatient treatment include notations that the Veteran's headaches were controlled with Cymbalta. On another VA outpatient treatment clinic visit in June 2008, the Veteran denied having headaches. March 2010 psychology consult records reflect that there was no history of neurological illness other than persistent and severe headaches. A psychological evaluation that month to determine if the Veteran had any cognitive dysfunction included a reference by the examiner to a traumatic brain injury, such a disorder said by the examiner to be "associated with cognitive dysfunction," that was incurred during service. The conclusion following the evaluation, however, was that there was no evidence of cognitive dysfunction. A September 2010 VA outpatient treatment report indicated the Veteran again indicated his headaches were controlled with Cymbalta. In the report of a November 2010 VA traumatic brain injury examination, the examiner documented review of the medical records in the claims file. Neurological examination was unremarkable; however, the examiner did note the subjective complaints of headaches which the Veteran reported interfered with his activities of daily living and relationships. The examiner noted that the Veteran described the headaches as prostrating but noted the described headaches did not cause complete exhaustion (the medical definition of prostrating). The examiner noted that the Veteran's reported severity of the headaches was somewhat inconsistent with his functional abilities and there was no objective documentation that the headaches had any impact on the Veteran's ability to work. She also noted that headaches were not immediately described at the time of the July 1976 injury and that it was likely that his ongoing headaches were "multifactorial" [and thus not all attributable to service-connected disability]. In this regard, she found that the Veteran's sleep apnea "may well be contributing to the severity and frequency of these headaches." Thereafter, a December 2010 emergency clinic report reflecting treatment for pain in the right leg also lists several other medical complaints, none of them involving headaches. VA outpatient treatment reports dated thereafter in January 2011, February 2011, April 2011, and June 2011 noted that the Veteran's headaches were controlled with medication, with the records dated from February 2011 reflecting the prescription of new medication in the form of Gabapentin. Reports from VA outpatient treatment in February 2011 reflect no medical complaints at that time other than those relating to pain radiating from the Veteran's low back. Submitted in conjunction with argument presented by the Veteran's attorney in January 2013 was a statement, dated in August 2012, in which the Veteran's sister in law noted that she and her family have observed the Veteran having such severe attacks of headaches that he is at times unable to attend family functions or gatherings. She indicated that the Veteran's headaches were "obviously severe and debilitating," that they had worsened over the time, and that it was "very apparent" that the medication prescribed for the Veteran's headaches was not effective. Also submitted in conjunction with the argument from the Veteran's attorney submitted in January 2013 is an opinion dated in that month from a private physician. This opinion was noted to have been based on a review of the clinical evidence from service and thereafter as well as statements of record. He stated that the Veteran's headaches became so severe that he was unable to work from 1999 onward. Significant evidence to this examiner included the June 2004 VA outpatient treatment report noting the description of frequent and intense headaches and the September 2004 VA outpatient treatment report noting that the Veteran had to stop activities and go to sleep when he has headaches. He also noted that it was likely that the Veteran suffered from a "post-traumatic headache syndrome," which was a symptom complex that included headache, dizziness, neuropyschiatric symptoms, and cognitive impairment. He also stated that it was "essentially immaterial" how severe the original head injury in service was, as "paradoxically, headache prevalence, duration, and severity is greater in those with mild head injury compared with those with more severe trauma." The examiner also referred to the conclusion by the examiner who conducted the June 2007 VA examination that the Veteran was diagnosed with a Transformed Migraine, and indicated that "[t]transformation of episodic migraine to a chronic headache syndrome is often precipitated by medication overuse and is often complicated by neuropsychiatric symptoms such as depression." In this regard, the examiner found it significant that the March 2010 examination reports noted that there were clinical features of depression and recommended psychotherapy. The examiner also noted as significant the statements of the Veteran's wife in 2007 and 2011 indicating that the Veteran's headaches required that the Veteran lie down; the August 2012 statement from the Veteran's sister in law referenced above; and a February 2007 statement submitted by the Veteran noting this headaches occurred frequently, included nausea, and required him to lie as flat as possible so as to not exacerbate his symptoms. The January 2013 opinion also found fault with the conclusion in the November 2010 VA examination that the non-service connected sleep apnea contributed to the Veteran's headaches given the findings of a medical study of patient's with sleep apnea. Regardless of this study, the examiner stated that "it would be impossible to differentiate" which headache symptoms were attributable to sleep apnea and which were attributable to service connected disability. In his conclusion, the examiner who rendered the January 2013 opinion found that the Veteran's service-connected headaches should be considered severe and prostrating. He disagreed with the definition of a prostrating headache by the VA examiner in November 2010 that such headaches are equivalent to "complete exhaustion." Instead, he observed that symptoms of prostrating migraine headaches are, as have been described by the Veteran, those that require a patient to stop what they are doing and lie in a dark, quiet place until symptoms abate. Based on this standard and his review of the medical and lay evidence, the examiner concluded that the Veteran's headaches were "frequent, severe[,] and prostrating." The examiner concluded that the Veteran's headaches were as likely as not the direct cause of his unemployability because his inability to function during frequent headaches "would clearly prevent him from performing consistently on the job." Before applying the appropriate rating criteria to the evidence cited above, the Board notes that while the disability picture has at times been described as being the result of a traumatic brain injury, the Veteran's headaches have not been evaluated under the diagnostic code pertaining to traumatic brain injuries codified at 38 C.F.R. § 4.124s, DC 8045. It is not clear that the service encephalalgia at issue derives from the type of traumatic brain injury contemplated by these criteria, which have been revised during the pendency of the Veteran's appeal. See 73 Fed. Reg. 54693 (Sept. 23, 2008). To the extent that the service-connected disability would be considered to be the type contemplated by the criteria set forth at DC 8045, although the amended criteria apply to claims received by VA on and after October 23, 2008, a Veteran whose residuals of a traumatic brain injury were rated under the pre-amended regulations may request review under the revised criteria, irrespective of whether his or her disability has worsened since the last review. The claim in this case was filed prior to October 23, 2008, and despite extensive communications from and in support of the Veteran in this case, to include those rendered by the Veteran's attorney in litigation following the September 2011 Board remand, a request for review under the revised provisions has not been received. As such, and as the case was not previously considered under the criteria for rating traumatic brain injuries, the additional development which would be necessitated by application of the specialized amended criteria for rating traumatic brain injuries is not indicated in this case. As indicated above, under DC 8100, a 50 percent rating for migraines is warranted for migraines with very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. (Emphasis added). The Board finds that the preponderance of the evidence is against a conclusion that that these criteria are met. In making this determination, the Board notes that VA outpatient treatment reports from at least October 2007 indicated that the Veteran's headaches were controlled with medication, and while there are reports of extensive VA outpatient treatment since that time, they are entirely (or almost entirely) for conditions other than headaches. For the purpose of this analysis, the Board emphasizes that it is not relying on the definition of prostrating headaches provided during the November 2010 examination, and concedes that, at times-particularly prior to October 2007-that the Veteran's headaches were "prostrating" as contemplated by regulation. However, the criteria for a higher rating require that prostrating headaches be "very frequent," and it is clear from review of the many VA outpatient clinic records and reports associated with this veteran that there have not been frequent-much less, very frequent-occurrences of such prostrating episodes. In making the determination above, the Board has carefully considered the January 2013 private physician's conclusion, but it is not bound by this opinion. See Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (citing Reonal v. Brown, 5 Vet. App. 458, 461(1993) and Swann v. Brown, 5 Vet. App. 229 (1993)) (stating that the Board is not bound to accept medical opinions that are based upon an inaccurate factual background); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board has authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence). While the Board accepts the conclusion in the opinion that prostrating attacks of headache have been demonstrated, at times, the January 2013 opinion failed to take into account the fact that the objective clinical evidence of treatment of the Veteran (as represented by the reports from VA outpatient treatment) does not show that such prostrating headaches are "frequent," much less "very" frequent. In fact, these reports demonstrate quite the opposite in that the clearly show that headaches are well controlled with medication. In this regard, the Board finds that the selective references by the private examiner to the description of headache symptomatology demonstrated by VA outpatient treatment reports dated in June and September 2004, with no reference to the otherwise abundant VA outpatient treatment reports indicating that the Veteran's headaches were controlled with medication, significantly diminishes the probative value of the January 2013 private clinical report. Similarly, the Board also finds that the selective references to the VA outpatient reports by the Veteran's attorney (also limited to June and September 2004 VA) in his January 2013 presentation limits the persuasiveness of the argument contained therein. With respect to some of the specific opinions about the impact of the Veteran's headaches upon employability contained in the January 2013 opinion, and the assertions of the Veteran's attorney in this regard, these opinions and assertions are more appropriately addressed in connection with the matter of the Veteran's entitlement to TDIU due to encephalalgia addressed in the remand that follows this decision. The Board has also considered the deficiency in its September 2011 denial of the claim for an increased rating for encephalalgia as identified by in the joint motion-namely, it failed to properly consider the assertion of the Veteran during the June 2007 VA examination that he had continuous throbbing-like headaches during which he was completely incapacitating. In the Joint Motion, the parties noted that while the Board referred to this evidence in its discussion of the relevant facts in its September 2011 Board decision, the Board "did not adequately explain whether this record constitutes evidence that [the Veteran's] headaches were completely prostrating in nature, and if so, whether these headaches were productive of severe economic inadaptability at any point during the appeal period." In addressing this deficiency as identified by the parties in the Joint Motion, the Board repeats that it concedes, as stated by the Veteran during at his June 2007 VA examination [and elsewhere], that the Veteran's headaches at times have been prostrating so as to produce severe economic inadaptability on occasion to the point that work was temporarily precluded. However, the frequency of such attacks required for increased compensation are simply not demonstrated given the nature of the Veteran's disability as reflected by the far abundance of the VA outpatient treatment reports. The Board has considered the descriptions of disability due to headaches advanced by and on behalf of the Veteran. This lay testimony has been considered together with the medical evidence clinically evaluating the severity of the pertinent disability symptoms. In short, the Board finds the competent medical evidence represented by the VA outpatient treatment reports reflecting the nature of the disability due to headaches-namely, that such disability is controlled by medication-to be the most probative medical evidence clinically evaluating the severity of the service connected encephalalgia with consideration of the relevant criteria. Under these circumstances, the Board finds that the preponderance of the evidence weighs against a conclusion that the next higher, 50 percent, rating for encephalalgia under the applicable rating criteria is warranted at any time since June 1, 2004. The above determinations are based on consideration of pertinent provisions of VA's rating schedule. Additionally, and notwithstanding the assertion of the Veteran's attorney in his January 2013 presentation that an extra-schedular rating is warranted, the Board finds that there is no showing that, at any point since June 1, 2004, the Veteran's service-connected encephalalgia has reflected so exceptional or so unusual a disability picture as to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b) (cited and considered in the February 2004 SOC). The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996). Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule does not contemplate the claimant'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" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, supra. In this case, the Board finds that the applicable schedular criteria are adequate to rate the Veteran's encephalalgia at all times since June 1, 2004. The rating schedule fully contemplates the described symptomatology, and provides for a higher rating for residuals of encephalalgia than has been assigned for the period in question based on more significant functional impairment. Significantly, there is no medical indication or specific argument explaining why the applicable criteria are otherwise inadequate to rate the Veteran's encephalalgia. Under these circumstances, the Board finds that the requirements for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For all the foregoing reasons, the Board concludes that there is no basis for staged rating, pursuant to Hart; and the claim for a higher rating for encephalalgia, from June 1, 2004, must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against assignment of a higher rating for encephalalgia from June 1, 2004, that doctrine is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, supra. ORDER A rating in excess of 30 percent for encephalalgia, from June 1, 2004, is denied. REMAND The Board finds that given the opinion with regard to the impact of the Veteran's headaches on employment reflected in the January 2013 private medical opinion, as well as argument presented in that month by the Veteran's attorney, the question of entitlement to a TDIU as a component of the claim for an increased rating for encephalalgia has been raised. See Rice, supra; see also Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). After affording the Veteran an opportunity to file a formal claim for a TDIU due to encephalalgia from June 1, 2004, and accomplishing other actions noted below, the RO must address this matter in the first instance to avoid any prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). As regards the criteria for award of a TDIU due to encephalalgia from June 1, 2004, the Board observes that total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2012). Here, the 30 percent rating for encephalalgia from June 1, 2004 does not meet the requirement of section 4.16(a). However, a total rating, on an extra-schedular basis, may nonetheless be granted, in exceptional cases (and pursuant to specifically prescribed procedures), when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. See 38 C.F.R. § 4.16(b). On remand, the RO should afford the Veteran opportunity to provide information and/or evidence pertinent to the claim for an extra-schedular TDIU due to encephalalgia from June 1, 2004. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO should specifically request that the Veteran provide, or provide appropriate authorization for it to obtain, any outstanding private medical records. Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim remaining on appeal. In adjudicating the claim for a TDIU due to encephalalgia from June 1, 2004, the RO should address whether the procedures for consideration of an extra-schedular TDIU, pursuant to 38 C.F.R. § 4.16(b), are invoked. Accordingly, this matter is hereby REMANDED for the following action: 1. Furnish to the Veteran a VA Form 21-8940 to enable him file a formal application for TDIU due encephalalgia from June 1, 2004. 2. Send to the Veteran and his attorney a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to a claim for TDIU due encephalalgia from June 1, 2004 that is not currently of record. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, the notify the Veteran and his attorney of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claim for a TDIU due encephalalgia, from June 1, 2004, in light of all pertinent evidence and legal authority (specifically addressing whether the procedures of 38 C.F.R. § 4.16(b) are invoked). 6. If the claim is denied, furnish to the Veteran and his attorney an appropriate SSOC that includes citation to and discussion of all additional legal authority considered-in particular, 38 C.F.R. § 4.16(b)-along with clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This claim must be afforded expeditious treatment. The law requires that all claims 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. 2012). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs