Citation Nr: 1315195 Decision Date: 05/08/13 Archive Date: 05/15/13 DOCKET NO. 07-13 095 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an increased disability evaluation for migraine headaches, to include an initial compensable disability evaluation and a disability evaluation in excess of 50 percent as of October 6, 2011. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from April 1981 to August 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, that in pertinent part, granted service connection for muscular tension headaches and assigned a noncompensable (0 percent) disability evaluation, effective as of September 1, 2004. A timely notice of disagreement to the assigned rating was received by VA in April 2005. The Veteran appealed this rating to the Board in April 2007. This claim was subsequently remanded by the Board in March 2010 and September 2011 for further evidentiary development. As the appeal involves a request for a higher initial rating following the grant of service connection, the Board has characterized the matters on appeal in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for disabilities already service-connected). The Appeals Management Center (AMC) also issued a rating decision in September 2012, assigning a higher disability evaluation of 50 percent for migraines as of October 6, 2011. Since this grant did not constitute a full grant of the benefits sought on appeal, this claim remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claim. A review of the documents in such file reveals that they are duplicative of the physical evidence in the paper claims file. Finally, the Veteran has submitted a significant amount of evidence since the most recent supplemental statement of the case (SSOC). In October 2012, the Veteran submitted a written wavier of initial review of this evidence by the Agency of Original Jurisdiction (AOJ). Accordingly, a remand is not required. See 38 C.F.R. § 20.1304 (2012). FINDINGS OF FACT 1. Prior to May 13, 2010, the Veteran's migraines were manifested by prostrating attacks occurring on an average of once per month; they were not manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. Effective May 13, 2010, the Veteran's migraines have been manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, warranting the maximum schedular rating of 50 percent. 3. There is no evidence to suggest that the Veteran's migraines have been so exceptional or unusual at any time during the pendency of this claim as to warrant referral for extraschedular consideration. CONCLUSIONS OF LAW 1. Effective September 1, 2004 to May 12, 2013, the criteria for entitlement to an initial 30 percent disability evaluation and no higher for migraine headaches have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.124a, Diagnostic Code 8100 (2012). 2. Effective May 13, 2010 the criteria for entitlement to a 50 percent disability evaluation for migraine headaches have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.124a, Diagnostic Code 8100 (2012). 3. Neither the schedular nor extraschedular criteria for entitlement to a disability evaluation in excess of 50 percent have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.124a, Diagnostic Code 8100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (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 in accordance with 38 C.F.R. § 3.159(b)(1). 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 Veteran's claim arises from his disagreement with the initial evaluation assigned following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), Goodwin v. Peake, 22 Vet. App. 128, 134 (2008), Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is required for the issue on appeal. As to VA's duty to assist, VA has associated with the claims folder the Veteran's private and VA treatment records. He was also afforded VA examinations to determine the severity of his migraines in December 2004 and October 2011. The examinations are adequate for rating purposes. The examiners recorded the Veteran's subjective complaints and pertinent objective findings. The Board notes that there is other lay and objective evidence of record that helps to illustrate the Veteran's disability picture. The Veteran also provided testimony at a hearing before the RO in June 2010. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the hearing officer who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the Veteran provided testimony addressing his disability symptoms and was asked to identify any pertinent evidence to include where he received treatment for his headaches. Moreover, as set forth above, the Board has remanded this case on two separate occasions in an attempt to help the Veteran obtain additional evidence to support his appeal. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the DRO hearing. By contrast, the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the hearing officer complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The Board finds that no additional assistance is required to fulfill VA's duty to assist. Additionally, the Board finds there has been substantial compliance with its previous remand directives. The Board notes that the Court has held that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand). The record indicates that the Appeals Management Center (AMC) contacted the Veteran in September 2011, requesting that he provide a VA Form 21-4142 so that VA could obtain records from a Dr. Dodd since 2007. VA requested these records from Dr. Dodd in January 2012 and February 2012. The record does not reflect that Dr. Dodd responded to either of VA's requests. However, VA had previously requested these records from Dr. Dodd in November 2010, and a June 2007 record from Dr. Dodd was successfully incorporated into the claims file in December 2010. VA also requested records from Dr. Dodd in June 2008, and records from June 2007 and December 2007 were provided to VA. The Veteran notified VA in February 2012 that he personally visited Dr. Dodd's office and was informed that his records had been moved into storage. Upon searching for these records, it was determined that these records were previously provided to VA in December 2011. However, a review of the claims file does not reflect that any records were obtained from Dr. Dodd in or around December 2011. Nonetheless, as already noted, VA was able to previously obtain at least some of the records from Dr. Dodd. VA has taken all reasonable steps necessary to obtain these records. Also, the Veteran indicated in a statement received in October 2012 that, "to [his] recollection," he never received an oral or written notice of the fact that reasonable effort was made to obtain the records of Dr. Dodd without success. A review of the record does not reflect that such notice was in fact provided to the Veteran. Nonetheless, an October 2012 statement from the Veteran reflects that he had actual knowledge of the fact that these records were unavailable. The Veteran also specifically noted that he was aware that he was ultimately responsible for obtaining these records but was unable to do so. Therefore, there is no evidence of prejudice to the Veteran as a result of a failure to notify him of the inability to obtain his records. The Board recognizes that the Veteran was not to be scheduled for a VA examination until after all necessary attempts had been made to obtain additional records from Dr. Dodd. The record reflects that the Veteran's examination was in fact scheduled prior to the completion of this directive. Nonetheless, the Veteran was not prejudiced as a result of this error in timing. Further attempts to obtain additional records from Dr. Dodd made after the scheduled examination were unsuccessful. Furthermore, the record already contained the limited records of Dr. Dodd at the time of the scheduled examination. As will be discussed in greater detail in the analysis below, the maximum rating allowable effective May 13, 2010 has been assigned and no evidence obtained since the October 2011 examination suggests that referral for an extraschedular evaluation is warranted. As such, the timing of the examination was not prejudicial to the Veteran. Finally, VA obtained additional records identified by the Veteran since the previous Remand. Records from another private dentist by the name of Dr. Roddy from 2010 and 2011 were obtained and incorporated into the claims file, as well as records of treatment from Wright-Patterson, Air Force Base. Records of sick leave taken from the Veteran's place of employment are also in the claims file. The Veteran was scheduled for a new VA examination to determine the current level of severity of his migraines in October 2011. The record reflects a picture of the Veteran's current symptoms, and there is no evidence that the Veteran was prejudiced by any failure on VA's part to obtain further evidence. The AMC later issued a rating decision and a Supplemental Statement of the Case (SSOC). Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remands. See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). Analysis Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings will be applied, the higher rating will be assigned if the disability picture more closely approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7 (2011). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). See also 38 C.F.R. §§ 4.1, 4.2 (2011). As such, the Board has considered all of the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. The record reflects that the Veteran's claim was originally received by VA in October 2004. In a February 2005 rating decision, service connection for headaches was granted, effective as of September 1, 2004 (the day after the Veteran's separation from active duty). A noncompensable (0 percent) disability evaluation was assigned. The Veteran appealed. In a September 2012 rating decision, the Veteran's disability evaluation was increased to 50 percent, effective as of October 6, 2011 (the date of his most recent VA examination). A September 2003 pre-deployment health assessment notes ocular migraine headaches. However, the frequency and severity of the headaches was not noted. The Veteran was then afforded a VA examination for his headaches in December 2004 following his separation from active duty. The Veteran described his headaches as "migraine-like." The examiner concluded that the Veteran's complaints of headaches appeared to be associated with stress. There was no nausea, vomiting, weakness or loss of function elsewhere associated with these headaches. However, when the Veteran had a headache, he had to take Tylenol and lie down. The headache would then subside after one to two days. Unfortunately, the frequency and severity of the headaches themselves was not discussed in further detail, although it was noted that the Veteran had not lost any work as a result of these headaches. VA received a statement from the Veteran in June 2005 pertaining to the above examination. The Veteran indicated that while his migraine headaches were not completely prostrating and prolonged and were not productive of severe economic inadaptability, they did interfere with his daily life and activities. He also reported having at least 10 to 12 prostrating attacks during the past year. VA also received a statement from the Veteran's wife in June 2005. She indicated that the Veteran treated his headaches with over the counter medications and that he had at least one to two headaches per month. A letter from a fellow serviceman received in July 2005 also notes that the Veteran complained of headaches on a weekly basis during military service. Also, he was unable to exercise due to persistent headaches. A September 2005 report from a private treatment provider confirms that the Veteran had a history of migraine headaches. The frequency and severity of these migraines, however, was not indicated. According to a private treatment record dated June 2007, the Veteran was experiencing one migraine per month. He treated these migraines with Aleve. The record also contains a record from a private dentist (Dr. Dodd) dated June 2007. The Veteran was noted to be suffering from migraines that he treated with Aleve. The record also contains numerous records of sick leave taken by the Veteran as a result of his migraine headaches. The record reflects that the Veteran took sick leave as a result of his headaches on the following days: May 13, 2010 (full day); May 14, 2010 (full day); May 17, 2010 (full day); June 9, 2010 (full day); June 10, 2010 (full day); June 14, 2010 (full day); June 15, 2010 (full day); June 25, 2010 (3 hours); July 8, 2010 (full day); July 23, 2010 (3 hours); August 24, 2010 (6 hours); September 16, 2011 (full day); October 6, 2011 (3 hours); October 14, 2011 (full day); October 20, 2011 (2 hours); October 25, 2011 (2.5 hours); November 10, 2011 (3 hours); November 25, 2011 (full day); January 31, 2012 (5 hours); February 9, 2012 (full day); March 2, 2012 (full day); March 15, 2012 (5 hours); April 9, 2012 (full day); April 27, 2012 (full day); May 1, 2012 (3 hours); May 24, 2012 (full day); June 22, 2012 (full day); July 16, 2012 (full day); August 17, 2012 (full day); August 20, 2012 (full day); August 31, 2012 (full day); September 27, 2012 (full day). The record also contains a statement dated September 2010 from an individual who served with the Veteran and worked with him in the past. Specifically, the individual asserted that he served with the Veteran until September 2004 and that they later became colleagues again from November 2008 until April 2009 and then from February 2010 to April 2010. According to this individual, he had witnessed the Veteran suffering from headaches. At times, these headaches were so severe that the Veteran would have to take a break from his duties or even take the day off to recuperate. Another individual submitted a statement dated September 2010, noting that he worked with him from November 2009 through April 2010, and that the Veteran told him on several occasions that he was leaving work due to severe headaches. The Veteran also provided testimony at a Decision Review Officer (DRO) hearing in June 2010. The Veteran reported that he only treated his headaches with over-the-counter Aleve and that he had to do this approximately three times per week. He indicated that he did get relief with this treatment. However, his headaches were worse with bright light, such as when working on a computer at work. The Veteran denied any emergency room treatment for his headaches or any treatment at a private or VA hospital. The record also contains another statement from the Veteran's wife received in July 2010. She indicated that the Veteran's headaches had been worsening with several occurring over the last several months. The Veteran was most recently afforded a VA examination to determine the current level of severity of his headaches in October 2011. The Veteran reported that his symptoms had progressed since his last VA examination of 2004 and that he now got headaches two to three times per week. Two to three times per month these headaches were severe, lasting from 12 to 48 hours, associated with nausea, vomiting and photosensitivity. The Veteran also reported changes in vision, such as scotoma, flashes of light and tunnel vision. The examiner concluded that the Veteran's typical headache would last less than one day, although he did have characteristic prostrating attacks of migraine headache pain more frequently than once a month. The examiner also concluded that the previous diagnosis of muscular tension headaches was incorrect and that the Veteran had been suffering from migraine headaches, which were responsible for all of his symptomatology, since 2000. The examiner described symptomatology of head pain, nausea, vomiting, sensitivity to light, and changes in vision. These headaches had progressively increased in frequency and duration since 2004. According to a statement dated September 2012 from the Veteran's supervisor, the Veteran experienced headaches at work on "countless occasions." He was usually able to work through them but his more severe headaches required that he go home and lie down in a dark room. VA also received a headache log from the Veteran in October 2012. This log reflected headaches experienced from April 2012 through September 2012, and indicated the activities that were impacted as a result of these headaches, such as spending time with his children, eating meals or performing yard work. The record also contains a VA Disability Benefits Questionnaire (VA Form 20-0960C-8) dated October 2012 and signed by a physician's assistant from Wright-Patterson Air Force Base. This record indicates that the Veteran's headaches worsened in 2007 and were consistent with one prostrating headache per month. The Veteran's headaches again worsened in June 2010 with three headaches per week with at least one being prostrating. It was noted that the Veteran had missed over three weeks of work in the past nine months. Records from Wright-Patterson Air Force Base reflect that the authoring physician had previously treated the Veteran. The Veteran's headaches were previously identified as "muscular tension headaches" and rated under Diagnostic Code 8199-8100. Diagnostic Code 8100 is used when rating migraines. See 38 C.F.R. § 4.124a. When an unlisted condition is encountered, it is to be rated under a closely-related disease or injury similar in function and anatomical location. 38 C.F.R. § 4.20. When an unlisted disease is rated by analogy, the code is built by using the part of the rating schedule most closely related to the disability for the first 2 digits and "99" for the last 2 digits. See 38 C.F.R. § 4.27. As explained by the October 2011 VA examiner, the proper diagnosis associated with the Veteran's headaches since his separation from active duty has been migraines. As such, Diagnostic Code 8100 has been properly applied throughout the pendency of the Veteran's appeal. Migraine headaches with less frequent attacks than the criteria for a 10 percent rating are rated as noncompensably (0 percent) disabling. Migraine headaches with characteristic prostrating attacks averaging one in 2 months over the last several months are rated 10 percent disabling. Migraine headaches with characteristic prostrating attacks occurring on an average of once a month over the last several months are rated 30 percent disabling. Migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are rated 50 percent disabling. 38 C.F.R. § 4.124a. In determining whether the Veteran experiences the type and frequency of prostrating attacks of migraine headaches necessary for a higher rating under Diagnostic Code 8100, the Board observes that the rating criteria do not define "prostrating" nor has the Court of Appeals for Veterans Claims (Court). See 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 MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY ELEVENTH EDITION (2007), p. 999, "prostration" is defined as "complete physical or mental exhaustion." A similar definition is found in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1554 (31st Ed. 2007), in which "prostration" is defined as "extreme exhaustion or powerlessness." The rating criteria also do not define "severe economic inadaptability." However, nothing in Diagnostic Code 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440 (2004). The evidence of record demonstrates that the Veteran is entitled to an initial disability evaluation of 30 percent for his migraine headaches, effective from September 1, 2004, through May 12, 2010. In a June 2005 statement, while the Veteran conceded that his migraine headaches were not "completely prostrating" and did not result in severe economic inadaptability, he did endorse approximately 10 to 12 prostrating attacks during the past year that interfered with his daily activities. This would average approximately one prostrating attack per month. The Veteran's wife also suggested in a June 2005 statement that the Veteran had at least 1 to 2 headaches per month since 2004. An individual purporting to have worked with the Veteran from 2002 to 2004 also indicated in a June 2005 statement that the Veteran was unable to exercise as a result of his persistent headaches and that he witnessed the Veteran complain of headaches on a weekly basis. Finally, a June 2007 private treatment record indicates that the Veteran was suffering from approximately 1 migraine per month at this time. In light of this evidence, the Board finds that the Veteran's disability has been more appropriately characterized as 30 percent disabling as of September 1, 2004. The above conclusion is further supported by the December 2004 VA examination report. While it was noted that he had not lost time from work due to his headaches, and that they did not result in problems such as nausea or weakness, the Veteran did report that he had to treat his headaches with over-the-counter medication and then lie down "for a while." It was noted that these headaches would only subside after one to two days. Regrettably, the frequency of these headaches was not noted in the examination report. Nonetheless, when this evidence is considered with the totality of the evidence of record, the Veteran's migraines were prostrating on an average of once per month since the receipt of his claim. The Board recognizes that a physician's assistant from Wright-Patterson Air Force Base indicated in October 2012 that the Veteran's headaches did not worsen until 2007. The Veteran also suggested during his DRO hearing that he was able to treat his headaches with over-the-counter medication only. While this evidence would not suggest that a 30 percent rating is warranted as of September 1, 2004, the record also contains numerous statements from the Veteran, his wife and his co-workers describing some 10 to 12 headaches over the past year that required the Veteran take medication, lie down and miss some or all of his work-related duties. The record contains sufficient lay evidence to suggest prostrating headaches occurring an average of once a month as of September 1, 2004. When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Migraine headaches are a type of disorder that can be easily identified by a lay person who is experiencing this symptomatology. There is also nothing of record to call into question the credibility of the lay statements provided in support of the Veteran's claim. After resolving the benefit of the doubt in favor of the Veteran, the criteria for the assignment of a 30 percent rating effective from September 1, 2004 through May 12, 2010 are met. However, the preponderance of the evidence of record fails to demonstrate that the Veteran met the criteria for a 50 percent disability evaluation at any time from September 1, 2004 through May 12, 2010. While the Veteran did complain of headaches during his December 2004 VA examination, it was noted that these were not associated with loss of function and that the Veteran had not lost any work as a result of these headaches. This shows that the Veteran's headaches were not "completely prostrating and prolonged." The Veteran also explicitly denied suffering from completely prostrating and prolonged attacks, as well as attacks that resulted in severe economic inadaptability, in a statement received in June 2005. As such, a 50 percent disability evaluation is not warranted at any time during this period. The record reflects that as of May 13, 2010, the Veteran's headaches were of such severity as to require that he frequently miss work, including three days in May 2010 and four days in June 2010. The October 2012 physician's assistant also indicated that the Veteran's headaches worsened as of June 2010, with at least one prostrating headache per week. The probative value of this statement is enhanced due to the physician's history of actually treating the Veteran. The Board finds that, when resolving all reasonable doubt in favor of the Veteran, this evidence satisfies the requirement for a 50 percent disability evaluation as of May 13, 2010. Specifically, there is evidence of migraine headaches with very frequent completely prostrating and prolonged attacks. 38 C.F.R. § 4.124a. The Board notes that the Veteran submitted an article from the Journal of Head and Face Pain in October 2012. This article discusses the interaction of stress and migraines. While the Board has considered this article, the fact that the Veteran suffers from migraine headaches is already well-demonstrated by the evidence of record. Furthermore, the Board recognizes that evidence dating back to May 13, 2010, demonstrates that the Veteran is entitled to the highest disability evaluation available for migraine headaches, demonstrating that VA is not disputing that the Veteran suffers from frequent migraines. The mere notion that stress and migraines may be related in no way demonstrates that the Veteran's migraines themselves have been more serious than currently rated at any time during the pendency of this appeal. The Board has also considered whether an extraschedular evaluation is warranted at any time during the pendency of this claim. The rating schedule represents as far as practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. 38 C.F.R. § 3.321(a), (b) (2012). To afford justice in exceptional situations, an extraschedular rating can be provided. 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111 (2008). The evidence in this case does not present such an exceptional disability picture that the available schedular evaluations for that disability are inadequate; thus, referral for extraschedular consideration is not warranted. From September 1, 2004 through May 12, 2010, the evidence of record, and the Veteran's own assertions, show that he experienced headaches on average once per month of such severity that he was forced to lie down for at least several hours. The now assigned disability evaluation of 30 percent more than adequately compensates him for his prostrating headaches occurring on average of once per month. See id. Therefore, the rating criteria reasonably described the Veteran's disability. Additionally, the currently assigned 50 percent rating, effective May 13, 2010, adequately compensates the Veteran's functional and industrial impairment due to his migraine headaches. While the Veteran's symptoms have consisted of headaches of such severity as to require he miss work on an average of more than once per month, a 50 percent disability evaluation compensates the Veteran for such symptomatology - specifically, very frequent and completely prostrating headaches productive of severe economic inadaptability. See 38 C.F.R. § 4.124a, Diagnostic Code 8100. The Board also notes that the Veteran has maintained full-time employment. Therefore, referral for consideration of an extraschedular rating is not warranted. The Board has also considered whether a remand for consideration of total disability benefits based on individual unemployability is warranted. The Court has held that TDIU is an element of an increased rating claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). However, as noted in the preceding discussion, the Veteran has been able to maintain full-time employment. Since the evidence establishes that the Veteran is not unemployable as a result of his service-connected migraines, further consideration of this matter is not warranted. In summary, staged ratings are applicable in this case. After resolving all reasonable doubt in favor of the Veteran, the Board finds that an initial disability evaluation of 30 percent for migraine headaches and no higher is warranted effective September 1, 2004 through May 12, 2010. See 38 U.S.C.A. § 5107(b). A disability evaluation of 50 percent is also warranted as of May 13, 2010. To this extent, the Veteran's claim is granted. At no time is a rating in excess of 50 percent warranted nor is a referral for extraschedular consideration warranted. In this regard, the Veteran's appeal is denied. ORDER Effective September 1, 2004 through May 12, 2010, an initial disability evaluation of 30 percent rating and no higher for migraines is granted. Effective as of May 13, 2010, a disability evaluation of 50 percent for migraines is granted. A schedular or extraschedular disability evaluation in excess of 50 percent for migraines is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs