Citation Nr: 1314857 Decision Date: 05/06/13 Archive Date: 05/15/13 DOCKET NO. 10-23 404 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a right hand disability, including carpal tunnel syndrome. 2. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a left hand disability, including carpal tunnel syndrome. 3. Entitlement to service connection for right ear hearing loss. 4. Entitlement to an increased rating for right eye corneal scarring with loss of vision, currently evaluated as 20 percent disabling. 5. Entitlement to an initial compensable evaluation for migraine headaches. ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION The Veteran served on active duty from December 1992 to December 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In a June 2010 VA Form 9 (Appeal to Board of Veterans' Appeals), the Veteran requested hearings before both the RO and a Board member. The RO scheduled him for a hearing before a Decision Review Officer (DRO) for July 6, 2011. The Veteran declined the DRO hearing and he wished to have it rescheduled for a later date. In September 2011, he withdrew his request for a Board hearing. Thereafter, in March 2013, the Board sent the Veteran a letter asking him to clarify whether he wanted to attend a hearing given the outstanding request regarding a RO hearing. He responded later that month that he does not wish to appear at a hearing. Under these circumstances, the Board finds that the Veteran has been afforded his opportunity for a hearing and that his request to testify before the RO or Board has been withdrawn. 38 C.F.R. § 20.704(e) (2012). During the appeal, the Veteran's private attorney representative withdrew from representation in July 2011. In March 2013, the Board sent a letter to the Veteran asking him to appoint a representative if he wished to do so. He was told that it would be assumed he wished to represent himself if there was no response within 30 days. No response was received from the Veteran within that timeframe. Thus, his is considered to be self-represented. The claims pertaining to right and left hand disabilities, right ear hearing loss, and migraine headaches are addressed in the decision below. The appeal of the rating claim regarding right eye corneal scarring with loss of vision is remanded to the RO via the Appeals Management Center in Washington, DC. FINDINGS OF FACT 1. In October 1998, the RO denied the Veteran's original claims of entitlement to service connection for a right and left hand disability. Although provided notice of this rating decision, the Veteran did not perfect an appeal thereof. 2. Evidence received since the October 1998 rating decision is not new and material, as the evidence is cumulative and redundant, and it does not raise a reasonable possibility of substantiating the claims of service connection for a right and left hand disability, including carpal tunnel syndrome. 3. The Veteran does not have right ear hearing loss for VA disability purposes. 4. Since the award of service connection, the Veteran's migraine headaches have not resulted in characteristic prostrating attacks. CONCLUSIONS OF LAW 1. The October 1998 decision denying the claims of entitlement to service connection for a right and left hand disability is final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1998). 2. Evidence submitted to reopen the claim of entitlement to service connection for a right hand disability, including carpal tunnel syndrome, is not new and material, and therefore, the claim is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. Evidence submitted to reopen the claim of entitlement to service connection for a left hand disability, including carpal tunnel syndrome, is not new and material, and therefore, the claim is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 4. Right ear hearing loss was not incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.385 (2012). 5. The criteria for an initial compensable rating for migraine headaches have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Proper notice from VA must inform the veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the veteran is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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). The RO's October 2008 letter to the Veteran satisfied the duty to notify provisions relating to the Veteran's claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187; Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). He was notified of the information and evidence necessary to substantiate a service connection claim and of the general criteria for assigning disability ratings and effective dates. Additionally, the Veteran was notified that his claims of service connection for hand pain had previously been denied in October 1998 along with the reason for the denial. He was told that he needed to submit new and material evidence to reopen the claim, and new and material evidence was defined. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of these claims, including the opportunity to present pertinent evidence. Specifically as to the Veteran's claim pertaining to migraine headaches, the claim arises from a decision granting the underlying benefit sought. Once a claim is substantiated to this degree, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed for any of the claims on appeal. The duty to assist the Veteran has been satisfied for these four claims. The RO has obtained the Veteran's service treatment records and his identified VA treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran has also been afforded VA examinations that are adequate to decide the right and left hand disability, right ear hearing loss, and migraine headaches claims. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Specifically, May 2010 VA examiners reviewed the claims file, and took into account the Veteran's statements and treatment records, which allowed for fully-informed medical opinions regarding the claimed disabilities. Id. As such, there is no indication in the record that additional evidence relevant to the issues being decided herein is available and not part of the record. See Pelegrini, 18 Vet. App. at 120. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of these claims, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. at 473 (2006); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination) (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). II. Analysis A. Previously Denied Claims Historically, in March 1998, the Veteran submitted original claims of entitlement to service connection for "hands" that were denied in an October 1998 rating decision as a right hand disability and a left hand condition. Although he received notice of this rating decision and notice of his appellate rights that same month, he did not appeal the decision. Additionally, new and material evidence was not received prior to the expiration of the appeal period. See 38 C.F.R. § 3.156(b). As such, the October 1998 rating decision is final based on the evidence then of record. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1998). The Board notes that the Veterans Claims Assistance Act of 2000 (VCAA) provided for a re-adjudication of claims that became final between July 14, 1999 and November 9, 2000, and that were denied as not-well-grounded, as if the denial had not been made. This was so, as long as a claimant requested a re-adjudication or VA moved for a re-adjudication by November 9, 2002-two years after the enactment of the VCAA. Although the Veteran's right and left hand disability claims in question were denied as not-well-grounded and the decision became final within the requisite time period, the Veteran did not request a re-adjudication by November 9, 2002, nor did VA move to re-adjudicate the claims by that date. Thus, the provisions of the VCAA that pertain to the re-adjudication of claims that were denied as not-well-grounded are not applicable to the present case. See VAOPGCPREC 03-2001, 66 Fed. Reg. 33311 (2001). Therefore, the October 1998 denials of service connection remain finally decided. In September 2008, the Veteran submitted a claim to reopen the issues of entitlement to service connection for a right and left hand disability. He characterized the claimed disabilities as bilateral carpal tunnel syndrome. After these claims were denied in the February 2009 rating decision, he perfected an appeal. These claims have been certified to the Board for appellate review. As to the characterization of the claimed disabilities, claims based upon distinctly diagnosed diseases or injuries cannot be considered the same for purposes of addressing the reopening of a previously denied claim. Boggs v. Peake, 520 F.3d 1330, 1337 (Fed. Cir. 2008). This is so even if the diseases or injuries involve overlapping symptomatology. Id. In Boggs, a claim involving sensorineural hearing loss was not considered to be the same as a claim involving conductive hearing loss even though they may have overlapping symptomatology because the two types of hearing loss developed from injuries to different parts of the ear. Id. at 1332-33. In the Veteran's case, although the claimed disabilities have been variously characterized broadly as hand disabilities and narrowly as carpal tunnel syndrome, the two present claims are identical to the two claims previously denied in October 1998. The Veteran contends that the claimed disabilities affect his hands in the same manner as he previously contended and he contends that the disabilities arise from the same overuse injury during service. Thus, the present claims should indeed be treated as claims to reopen rather than original claims of service connection. See Boggs, 520 F.3d at 1337. Generally, although a decision is final, a claim will be reopened if new and material evidence is presented. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative, nor redundant, of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. "New" evidence means existing evidence not previously submitted to VA. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an un-established fact necessary to substantiate the claim. See 38 C.F.R. § 3.156(a). The determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after VA has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). If the claim is reopened, it will be reviewed on a de novo basis. 38 U.S.C.A. §§ 5108, 7105; Evans v. Brown, 9 Vet. App. 273, 282-83 (1996); Manio v. Derwinski, 1 Vet. App. 140 (1991). Although the RO found that new and material evidence had not been submitted to reopen the Veteran's claims of entitlement to service connection for a right and left hand disability, RO decisions are not binding on the Board and, consequently, the Board must first decide whether new and material evidence has been received to reopen the Veteran's claims. Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993) (holding that Board reopening is unlawful when new and material evidence has not been submitted). As the October 1998 rating decision is the last final disallowance with respect to both of the claims at issue herein, the Board must review all of the evidence submitted since then to determine whether the Veteran's claims of service connection for a right and left hand disability should be reopened and re-adjudicated on a de novo basis. Evans, 9 Vet. App. at 282-83. Service connection may be granted for disability due to a disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. Moreover, service connection may be granted for any disease diagnosed after separation, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). At the time of the October 1998 rating decision, the evidence of record included: the Veteran's service treatment records; three VA examination reports, dated in August 1998; and an application for benefits and a statement from the Veteran. The service treatment records contained a September 1997 separation examination. At the examination, the Veteran reported that he had a history of swollen or painful joints. This was explained as occasional soreness of the right hand with overuse, which was not considered disabling. Although the upper extremities portion of the separation examination was normal, the Veteran was seen in sick call in December 1997 for a complaint of bilateral hand pain, cramping, weakness, and easy fatigability. He denied having experienced an injury, but he indicated the symptoms occurred when using his hands in the performance of his duties. Physical examination did not reveal swelling or deformity of the hands. The Veteran's Tinel's sign and Phalen's sign were negative. The assessment was questionable atypical carpal tunnel. The Veteran was referred for conductive nerve studies. An electromyogram (EMG) and nerve conduction study of the upper extremities was then conducted. No abnormalities were detected. One of the August 1998 VA examination reports was labeled as a "spine" examination, but it was instead a general physical examination. The Veteran reported having a history of occasional hand pain during service, particularly after performing work that required gripping his hand tight, such as when he worked with hot steam valves. X-rays were taken of both hands and the reports indicated negative studies. The VA examiner provided an assessment of intermittent myalgia of the hands with excessive use. In denying the claims in the October 1998 decision, the RO acknowledged the in-service treatment for right and left hand pain, but determined that the evidence did not demonstrate a permanent residual or chronic disability. Following the October 1998 rating decision, evidence added to the record includes: VA treatment records, dated in May 2009; VA examination reports, dated from November 2008 to May 2010; and statements from the Veteran. The new statements reflect that the Veteran continues to contend that he has a right and left hand disability that are related to military service, which he characterizes as carpal tunnel syndrome. Although the RO did not reopen the claims, the Veteran was afforded a VA examination in May 2010 that addressed the claims. The examiner reviewed the claims file and the Veteran reported that he developed bilateral hand pain in service on account of moving heavy steam valves. He also reported that testing during service in 1997 was negative for bilateral carpal tunnel syndrome. The Veteran stated that he presently drops small objects from his hands due to the condition of the hands. Physical examination revealed good bilateral grip strength. There was no evidence of thenar and hypothenar muscle atrophy. Sensory was intact to pain, light touch, temperature, and vibration to both hands. The Veteran's Tinel's sign and Phalen's sign were both negative for carpal tunnel syndrome. The diagnosis provided by the examiner was "the Veteran has no evidence of carpal tunnel syndrome on today's examination, as well as he had EMG which was done in active service and it also revealed negative for carpal tunnel syndrome." The remaining additional evidence is not relevant to these claims. The Board finds that the evidence submitted since the October 2008 rating decision is new in that it was not previously before VA decisionmakers. However, the new evidence is not material because the evidence is cumulative and redundant, and it does not raise a reasonable possibility of substantiating the claims of service connection for a right and left hand disability, including carpal tunnel syndrome. At the time of the previous denial, the evidence showed that the Veteran experienced bilateral hand pain and problems with his hands when overusing them during work. Even so, he was not diagnosed with a right or left hand disability, and the evidence did not show the existence of a disability. The December 1997 service record noted that the Veteran may have atypical carpal tunnel, but testing showed no abnormalities. Moreover, the August 1998 VA examiner did not provide a diagnosis other than myalgia of the hands, which is pain in a muscle. See DORLAND's ILLUSTRATED MEDICAL DICTIONARY at 1205 (30th ed. 2003). Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. "In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). See Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). Furthermore, although right and left hand pain was evident, pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). There was no disability shown by the evidence previously of record. Similarly, the new evidence does not show the existence of a current disability. Although the evidence continues to show that the Veteran experiences pain in the right and left hand, the May 2010 VA examiner determined that there is no evidence of carpal tunnel syndrome and no diagnosis was provided. This determination was based on a review of the claims file, and an interview and examination of the Veteran. Thus, this new evidence is cumulative and redundant as it continues to be shown that the Veteran does not have a current disability of the right or left hand, including specifically carpal tunnel syndrome. As such, the evidence does not raise a reasonable possibility of substantiating the claims. The Board acknowledges that the threshold for reopening a claim is low, but it is a threshold nonetheless. Shade, 24 Vet. App. at 110. In the Veteran's case, the threshold has not been met and the Board concludes that the claims are not reopened because new and material evidence has not been submitted. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). Additionally, the Board is not required to reopen the previously denied claims solely because the Veteran was afforded a VA examination in connection with his claims to reopen. See Woehlaert v. Nicholson, 21 Vet. App. 456, 461 (2007). As new and material evidence to reopen the finally disallowed claims has not been received, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). B. Right Ear Hearing Loss In addition to the general service connection provisions, impaired hearing will be considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran contends that he has right ear hearing loss and that it is attributable to exposure to loud noise during military service. Specifically, he states that he was exposed to noise when he was stationed aboard an aircraft carrier. This included noise from the flight deck, steam room and boiler room. The Veteran maintains that any currently diagnosed right ear hearing loss is related to the in-service noise exposure. Whether the Veteran was exposed to loud noise during service and whether such noise can result in hearing loss is not in dispute. He has been awarded service connection for left ear hearing loss, as well as tinnitus. The salient question is whether the Veteran in fact has right ear hearing loss. In May 2010, the Veteran underwent VA audiological examination in connection with the claim. The examiner reviewed the claims file, interviewed the Veteran and administered audiometric testing. Unlike the left ear, the examiner found the Veteran's hearing in the right ear to be clinically normal. There was no auditory threshold of 40 decibels or greater at any frequency for the right ear and the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz were not 26 decibels or greater. Additionally, the speech recognition score for the right ear was 96 percent, so not the required 94 percent or less. As noted previously, Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. "In the absence of proof of a present disability, there can be no valid claim." Brammer, 3 Vet. App. at 225. See Degmetich v. Brown, 104 F.3d at 1333. Impaired hearing for VA purposes is defined in 38 C.F.R. § 3.385 and the evidence shows that these requirements have not been met for the Veteran's right ear. Section 3.385 has been found to be a valid in determining whether impaired hearing exists. See Palczewski v. Nicholson, 21 Vet. App. 174, 177-180 (2007). Consequently, the Board finds that the Veteran does not have right ear hearing loss for VA disability purposes. Thus, service connection is not warranted for right ear hearing loss. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. See 38 C.F.R. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). C. Migraine Headaches Generally, disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2012). The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). In resolving this factual issue, the Board may only consider the specific factors as are enumerated in the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). 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). 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). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). The appeal pertaining to migraine headaches is based on the assignment of disability ratings following the initial award of service connection. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Accordingly, evidence contemporaneous with the claim and the rating decision that granted service connection are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Id. at 126. If later evidence indicates that the degrees of disabilities increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods. Id. In determining the applicable disability rating, pertinent regulations do not require that all cases show all findings specified by the Rating Schedule; rather, it is expected in all cases that the findings be sufficiently characteristic as to identify the disease and the resulting disability, and above all, to coordinate the impairment of function with the rating. 38 C.F.R. § 4.21 (2012). Therefore, with respect to the claim herein, the Board will consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Migraine headaches are assigned disability ratings based on the frequency of prostrating attacks. 38 C.F.R. § 4.124, Diagnostic Code 8100. A 50 percent rating is assigned for migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 30 percent rating is provided for migraine headaches with characteristic prostrating attacks occurring on an average once per month over last several months. A 10 percent rating is provided for migraine headaches with characteristic prostrating attacks averaging one in 2 months over last several months. A noncompensable (zero percent) rating is warranted for less frequent attacks. Id. The Rating Schedule does not define "prostrating." "Prostration" has been defined as "complete physical or mental exhaustion." MERRIAM-WEBSTER'S NEW COLLEGIATE DICTIONARY at 999 (11th ed. 2007). "Prostration" has also been defined as "extreme exhaustion or powerlessness." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY at 1523 (30th ed. 2003). In filing his claim of service connection for migraine headaches in September 2008, the Veteran stated that he experiences chronic migraines secondary to his service-connected right eye. In the February 2009 rating decision, service connection was granted for migraine headaches as secondary to service-connected right eye corneal scarring with low of vision, effective September 22, 2008. A VA eye examination was conducted in November 2008. The examiner noted that the Veteran experiences headaches associated with his right eye. VA treatment records from May 2009 reflect that the Veteran complained of headaches. In May 2010, the Veteran underwent VA examination in connection with the claim. The examiner reviewed the claims file, and interviewed and examined the Veteran. The diagnosis was migraine headaches. In describing the nature and severity of the headaches, the examiner noted that the Veteran experiences headaches once per week if he does not take medication. He knows when a headache is going to start and he takes Advil Migraine tablets and they stop the headache. Significantly, the examiner recorded that the Veteran denies prostrating episodes, including turning out the light, making the room dark, and taking the medication to go to sleep. The Veteran also denied visits to the emergency room or physician-prescribed bedrest because of the headaches. The headaches do not interfere with the Veteran's job or his activities of daily living. The relevant evidence is not supportive of a finding that the Veteran's service-connected migraine headaches have been productive of characteristic prostrating attacks averaging one in two months over the last several months. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The Veteran is competent to attest to what he observes and feels as a lay person. See Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Although he experiences headaches on a weekly basis, the evidence does not demonstrate that the headaches result in characteristic prostrating attacks. The May 2010 VA examiner addressed this very aspect of the Veteran's disability picture and prostrating episodes were denied by the Veteran. Moreover, the examiner did not indicate the Veteran experiences characteristic prostrating attacks. Because the competent and credible evidence of record associated with the claims file since the award of service connection does not show that the Veteran's migraine headaches result in characteristic prostrating attacks, an initial compensable evaluation is not warranted. The Board has considered whether a higher initial rating is warranted for the Veteran's migraine headaches under other rating criteria and diagnostic codes. Although Diagnostic Codes 8045 and 8046 provide for the assignment of ratings for headaches, evaluation under those diagnostic codes presuppose that the headaches are manifestations of a traumatic brain injury or cerebral arteriosclerosis. See 38 C.F.R. § 4.124a, Diagnostic Codes 8045 and 8046. The Veteran's headaches do not arise from a traumatic brain injury or cerebral arteriosclerosis. Thus, evaluation under either of those diagnostic codes is not warranted. Significantly, Diagnostic Code 8100 is labeled "migraine." As such, that diagnostic code contains rating criteria that are appropriate for evaluating the Veteran's migraine headaches. Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2012). However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. However, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate, a task performed either by the RO or the Board. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for the disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. The Board finds that the Veteran's disability picture for migraine headaches is not so unusual or exceptional in nature as to render the already assigned rating inadequate. The manifestations of the Veteran's service-connected disability were evaluated under the applicable diagnostic code. The criteria are found by the Board to specifically contemplate the level of occupational and social impairment caused by this disability. The Veteran's migraine headaches are manifested by weekly headaches that are controlled by medication and do not interfere with the Veteran's employment or activities of daily living. When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's experiences are congruent with the disability picture represented by a noncompensable rating. Consequently, the Board concludes that the schedular evaluation is adequate and that referral of the Veteran's case for extraschedular consideration is not required. See 38 C.F.R. § 4.124a, Diagnostic Code 8100; see also VAOGCPREC 6-96; 61 Fed. Reg. 66749 (1996). While there may have been day-to-day fluctuations in the manifestations of the Veteran's service-connected migraine headaches, the evidence shows no distinct periods of time during the appeal period, when the Veteran's service-connected headaches varied to such an extent that a compensable rating would be warranted. Fenderson, 12 Vet. App. at 126. For the foregoing reasons, the Board finds that the claim for an initial compensable rating for migraine headaches must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim for a higher initial rating, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 56. ORDER New and material evidence has not been presented to reopen a claim of entitlement to service connection for a right hand disability, including carpal tunnel syndrome; the appeal of this issue is denied. New and material evidence has not been presented to reopen a claim of entitlement to service connection for a left hand disability, including carpal tunnel syndrome; the appeal of this issue is denied. Service connection for right ear hearing loss is denied. An initial compensable evaluation for migraine headaches is denied. REMAND The Veteran was awarded service connection for right eye corneal scarring with loss of vision in October 1998. A 20 percent rating was assigned effective December 19, 1997. In September 2008, he filed a claim for increase. During the pendency of the claim, the Rating Schedule for evaluating disabilities of the eyes was revised and amended. See 73 Fed. Reg. 66543-54 (Nov. 10, 2008). The effective date of the revisions is December 10, 2008, and the revised criteria apply to all applications for benefits received by VA on or after that date. Because the Veteran's claim was received prior to December 10, 2008, the revised criteria are not for application in his case. In the May 2010 statement of the case, the RO informed the Veteran that his disability would be evaluated under the revised rating criteria. However, as noted above, the previous rating criteria are for application because the Veteran's claim was filed in September 2008, which is prior to the December 10, 2008 effective date of the revised criteria. Therefore, the claim must be remanded to allow for the RO to evaluate the Veteran's service-connected right eye disability under the proper rating criteria. VA's duty to assist includes providing a thorough and contemporaneous medical examination. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Given that the most recent VA eye examination was conducted over three years ago and the disability may have increased in severity, the Board finds a contemporaneous examination must be scheduled on remand to ensure that VA meets its duty to assist. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4). Accordingly, this case is remanded for the following actions: 1. The Veteran must be afforded a VA examination to determine the severity of his service-connected right eye disability. The Veteran's entire claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records. All pertinent symptomatology and findings must be reported in detail. Any indicated special diagnostic tests that are deemed necessary for an accurate assessment must be conducted. Any further studies deemed relevant by the examiner must also be conducted. The examiner must record all pertinent medical complaints, symptoms, and clinical findings, in detail. In particular, the examiner must provide the Veteran's impairment of central visual acuity, any impairment of visual field, and any impairment in eye muscle function. The examiner must also determine whether the right eye disability necessitates rest or results in episodic incapacity and, if so, indicate how frequently this occurs. The report prepared must be typed. 2. The RO must notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 3. After the development requested has been completed, the RO must review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures at once. 4. Finally, after undertaking any other development deemed appropriate, the RO must readjudicate the issue on appeal. When evaluating the Veteran's service-connected right eye disability, the RO must apply the rating criteria that were in effect prior to the December 10, 2008 revisions. If a benefit sought is not granted, the RO must furnish the Veteran with a supplemental statement of the case and afford him an opportunity to respond before the record is returned to the Board for further review. No action is required by the Veteran until he receives further notice; however, he has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs