Citation Nr: 1315994 Decision Date: 05/15/13 Archive Date: 05/15/13 DOCKET NO. 10-22 107 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial compensable rating for headaches. 2. Entitlement to total disability based on individual unemployability (TDIU) from April 28, 2009 to October 31, 2010. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty from August 1955 to October 1956. This case comes before the Board of Veterans' Appeals (Board) on appeal from December 2008 and September 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Respectively, the Veteran appealed the assignment of an initial noncompensable evaluation for tension headaches, and the denial of TDIU from April 28, 2009, to October 31, 2010. Historically, in a July 2010 rating decision, the RO granted service connection for schizophrenia at the 50 percent disability level, effective August 28, 2009. No appeal was filed and that decision became final. In August 2011, the Veteran requested an increased evaluation for paranoid schizophrenia. In an October 2011 rating decision, the RO granted a 70 percent disability evaluation for schizophrenia, effective August 24, 2011 (date of claim for increase). Later, in a February 2012 rating decision, the RO determined that an effective date of November 1, 2010 (date of application for a TDIU) for schizophrenia was warranted based on a finding of clear and unmistakable error. At this time, the RO further granted the claim for TDIU effective from November 1, 2010. As reflected in the November 2012 hearing on appeal, the Board has accepted jurisdiction of the claim for entitlement to TDIU from April 28, 2009, to October 31, 2010. In November 2012, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A copy of the transcript is associated with the record. This appeal was previously before the Board in February 2013. The Board denied a claim for a rating in excess of 70 percent for schizophrenia, and remanded the current claims on appeal for additional development. The Board previously incorrectly noted that the remaining dates for the Veteran's claim of entitlement to TDIU were from April 28, 2009 to November 21, 2009. The correct issue on appeal is entitlement to TDIU from April 28, 2009 to October 31, 2010. Given that the Board is granting entitlement to TDIU from August 28, 2009 to October 31, 2010, there is no harm caused by the date error in the February 2013 Board remand and subsequent Supplemental Statement of the Case. In the February 2013 decision, the Board remanded the claims currently on appeal so that treatment records could be requested and the Veteran could be scheduled for a VA examination. The case has been returned to the Board for further appellate consideration. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Resolving reasonable doubt in his favor, the Veteran's headaches are manifested by frequent headaches which are productive of severe economic inadaptability. 2. On April 28, 2009, the Veteran indicated that he was unable to work due to his service-connected disabilities. 3. From April 28, 2009 to August 27, 2009, the Veteran was singularly service connected for headaches, rated as 50 percent disabling. He did not meet the schedular criteria for TDIU, and the evidence during this period does not suggest that his headaches rendered him totally unable to secure or maintain substantially gainful employment so as to warrant consideration of a TDIU on an extraschedular basis. 4. From April 28, 2009 to August 27, 2009, the Veteran's service-connected disability was not of such severity as to preclude substantially gainful employment, and the rating criteria for headaches reasonably described the Veteran's disability level and symptomatology. 5. From August 28, 2009 to October 31, 2010, the Veteran meets the percentage requirements for TDIU with a combined rating of 80 percent, and service-connected headaches and schizophrenia each rated 50 percent disabling. 6. The evidence shows that from August 28, 2009 to October 31, 2010 the Veteran's disabilities precluded him from obtaining and retaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial 50 percent disability rating for headaches are met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.124a, Diagnostic Code 8100 (2012). 2. From April 28, 2009 to August 27, 2009, the criteria for entitlement to TDIU have not been met. 38 U.S.C.A. §§ 1155 , 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. 3. From August 28, 2009 to October 31, 2010, the criteria for entitlement to TDIU have been met. 38 U.S.C.A. §§ 1155 , 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159, provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held the plain language of 38 U.S.C.A. § 5103(a) requires notice to a claimant pursuant to the VCAA be provided "at the time" or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 2004). VA satisfied its duty to notify. The RO provided the Veteran fully adequate VCAA notice in October 2008, August 2009, and April 2010 letters prior to the rating decisions on appeal. The United States Supreme Court has held that an error in VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, the Veteran has not demonstrated any prejudicial or harmful error in the VCAA notice. VA satisfied its duty to assist the Veteran. VA obtained all relevant medical records. VA made reasonable efforts to obtain Social Security Administration (SSA) records, but SSA informed VA that "After exhaustive and comprehensive searches, we were not able to locate medical records. Further efforts would be futile." The RO notified the Veteran that these records were unavailable and afforded him the opportunity to provide copies of these records in his possession. No records from the Veteran were received. Additionally, VA afforded the Veteran medical examinations. The Board has reviewed the examination reports and finds that the 2013 examination described the Veteran's headache disability in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The Board is granting an initial 50 percent rating for the Veteran's headaches to the date of his claim, which represents a grant of the maximum rating provided under Diagnostic Code 8100. The Board is additionally granting entitlement to TDIU from August 28, 2009 to October 31, 2009. Lastly, VA afforded the Veteran a hearing on the appeal before the Board. A transcript of this hearing is associated with the claims files. Increased Rating-Laws and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. 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). 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). However, where the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran's headaches are currently assigned a noncompensable evaluation under Diagnostic Code 8100. 38 C.F.R. § 4.124a. Under Diagnostic Code 8100, a 10 percent evaluation is warranted for characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent evaluation is warranted for characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent evaluation is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a. A 50 percent evaluation is the maximum available schedular evaluation for headaches. The rating criteria do not define "prostrating." By way of reference, according to WEBSTER'S NEW WORLD DICTIONARY OF AMERICAN ENGLISH, THIRD COLLEGE EDITION (1986), p. 1080, "prostration" is defined as "utter physical exhaustion or helplessness." A very similar definition is found in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1367 (31st Ed. 2007), in which "prostration" is defined as "extreme exhaustion or powerlessness." TDIU-Laws and Regulations VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability, and to the effects of combinations of disability. 38 C.F.R. § 4.15. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the veteran is unable to secure or follow a substantially gainful occupation as a result of service- connected disability, provided that he has one service- connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of nonservice- connected disabilities will be disregarded if the above- stated percentage requirements are met and the evaluator determines that the service-connected disabilities render him incapable of substantially gainful employment. 38 C.F.R. § 4.16(a). For a veteran to prevail on a claim for a TDIU rating, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. See 38 C.F.R. § 4.16(a) (2008); Van Hoose v. Brown, 4 Vet. App. 361 (1993). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his or her employment and educational history. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Factual Background VA treatment records reflect a long history of psychiatric treatment and numerous complaints of headaches. VA treatment records include a June 2007 complaint that medications for the treatment of his schizophrenia were causing him insomnia. He also complained of headaches. By September 2007, he reported that Depakote relieved his headaches. In October 2007, he reported the Depakote caused nausea. In December 2007, and in several other treatment records, the Veteran reported to care providers that he believed his psychiatric medications caused his headaches. In December 2008, the Veteran was afforded a VA traumatic brain injury evaluation. He reported his headaches were attributable to his mental disorder. He described headaches at the right tempoparietal area, occurring twice a week and last three hours. The pain was "pressure-like," and he stated he would occasionally become nauseated. He denied vomiting and photophobia. He had a prescription for Fiorinal, but he stated he had not taken the medication in years and had not renewed his prescription. The evaluator noted the Veteran retired from managing a restaurant in 1975, due to his schizophrenia. The evaluator also opined that the Veteran's headaches did not affect his usual daily activities. In April 2009, the Veteran provided a notice of disagreement with the initial noncompensable rating he was assigned for headaches. He argued his migraines were severe because they caused him sleep disturbance, prevented him from driving, and prevented him from being able to work or live a productive life. During VA treatment in February 2010, the Veteran complained of a headache, with a pain level of 10 out of 10, lasting 2 hours, and associated with nausea/vomiting and photophobia. He last vomited one month ago. He reported that his headaches occurred once daily, and could even wake him from sleep. The treatment note included an interpretation of a September 2009 MRI, which "showed no masses." Headache was not improved with Tylenol, aspirin, or codeine, but improved when he turned off his television and when he "took one of his landlady's Percocets." He denied visual/auditory changes, and difficulty walking or speaking. The assessment was a several-month history of intermittent severe headaches with no organic etiology; he was prescribed Sumatriptan for use as needed with onset of headache. In April 2010, the Veteran complained of headaches every day for the past two months. He stated they were of an intensity of a 9 out of 10, and were in the biparietal and occipital area. Tylenol did not relieve the headaches, and he was experiencing nausea and vomiting. He was not on medication for his headaches, and stated he never received the Sumatriptan he was prescribed. He was diagnosed with migraine headaches. The physician indicated that the Veteran's prescriptions (Tamulosin and Ariptipazole) could be causing or exacerbating his headaches. He was prescribed Propranolol prophylactically and Sumatriptan as needed for breakthrough headaches. The records reflect that the Veteran struggled to remain compliant with his prescription medication regime, and frequently would not fill prescriptions or continue to take prescribed medication for his headaches. The report of VA mental disorders examination dated June 2010 reflects complaints of headaches occurring three to four times a week, in the occipital and biparietal area, and lasting three to four hours. He described his headache pain as an 8 out of 10. He was also noted to have poor concentration, anxiety, and rambling and circumstantial thinking. The examiner noted that the Veteran's psychiatric symptoms would "likely cause significant reduction of work performance." In June 2010, the Veteran also participated in a VA traumatic brain injury examination. He complained of intermittent headaches two to three times weekly, lasting two to three hours, and concentrated in the occipital regions. He also endorsed phono/photophobia, nausea/vomiting, and photopsias, which the examiner found consistent with migraine headaches. In July 2010, the Veteran sought treatment for chronic headaches, which he reported had been daily for the past two months. They were occipital/biparietal, up to an 8 or 9 out of 10 in severity, and were described as "throbbing." They lasted two to three hours, and would resolve spontaneously. He denied positional or autonomic features, and denied vertigo and neck pain. His headaches were often associated with nausea, photo/phonophobia. He was unable to identify triggers. The September 2009 MRI was noted to have revealed parenchymal atrophy and corresponding ventricular enlargement. He was noted to likely have "multi-factorial chronic daily headaches without migrainous features, which may explain poor efficacy of migraine-directed medications." He was referred for a sleep disorder evaluation and prescribed Flexeril and nonsteroidal anti-inflammatory drugs. The physician also suggested "physical therapy, chiropractor or botox treatments at the next clinic visit." In November 2010, the Veteran indicated that he was unable to secure gainful employment due to his schizophrenia. He also noted he received hospital treatment four times a month due to his schizophrenia. A letter dated in August 2011 from a VA physician reflects that the Veteran was unable to work secondary to his psychiatric disorder, he took psychotropic medications for his conditions, and that he experienced some residual symptoms such as sleep disturbance. In November 2011, the Veteran was instructed to drink water, as he "never" drank water. In July 2012, VA physicians instructed him to cut back on his "excessive caffeine consumption." In October 2012, the Veteran reported that he was late paying his rent and his electricity had been shut off the day before. The VA care provider noted that the Veteran received a good sum of money each month, had low rent, and received his food from a food bank. Given the Veteran's schizophrenia and his reported financial difficulties, he was referred to a social worker to determine if he was able to handle his own finances. The Veteran testified in November 2012 that he sought a 100 percent evaluation for headaches. He described his headaches as occurring twice daily and lasting for one hour, with pain at a level 8 out of 10, associated with vomiting, and treated by prescriptive mediation and rest. He reported that his headaches interfere with his concentration, and his sleep. In March 2013, the Veteran was afforded a VA headaches examination. The Veteran stated his headaches began in 1976, and the symptoms include pain in the back of the head, sensitivity to light, nausea and vomiting. He also felt that his headaches impaired his sleep. He reported a frequency of headaches of three times a week. He reported that various prescription medications have not improved his symptoms, although resting could provide mild relief. The Veteran additionally described his headaches as "constant" and throbbing, located at the back of his head. His typical headache lasted less than one day. The examiner found that the Veteran had non-migraine headaches with "prostrating" attacks of non-migraine headache pain more than once per month. The examiner found that the Veteran did not have "very frequent prostrating and prolonged attacks of non-migraine headache pain." However, the examiner opined that the Veteran's headaches would impact his ability to work, and noted that his headaches impair his activities of daily life. The Veteran "needs periods of rest in a quiet place due to headache, nausea and vomiting symptoms. His headache may impair his ability to obtain or retain substantially gainful employment." Analysis Headaches In adjudicating a claim, the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board acknowledges that the Veteran is competent to give evidence about what he experiences. See Layno v. Brown, 6 Vet. App. 465 (1994). Competency of evidence, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). See also Buchanan, supra (The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. If the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence.) Here, the Board notes there is some discussion in the VA treatment records regarding the Veteran's competency as a result of his schizophrenia. There is also some discrepancy in his reporting of the duration and intensity of the his headaches within the numerous treatment records contained in the claims file and in Virtual VA. While the Veteran's psychiatric disability appears to reduce his accuracy as a patient and historian, the Board finds that he is generally credible in his reported symptoms of pain, nausea, and photo/phonophobia. The Veteran's symptoms and his lay assertions meet the criteria for an initial 30 percent disability rating under 38 C.F.R. § 4.124a, Diagnostic Code 8100, on the basis of headaches with characteristic prostrating attacks averaging once a month or more over the last several months. The overall evidence does not suggest the Veteran has "frequent completely prostrating and prolonged attacks" because he has continuously stated that his headaches last from one to three hours generally. However, the 2013 VA evaluator noted that the Veteran's headaches may impair his ability to obtain and retain substantially gainful employment. Thus, the Veteran's symptoms fall between a 30 percent and 50 percent rating. As noted above, where there is a question as to which of two evaluations apply, the higher rating will apply if the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7. As the 2013 VA examiner has indicated that the Veteran's headaches may be productive of economic inadaptability, the Board finds that the Veteran's headaches more closely approximate an initial 50 percent rating. Treatment records indicate that the Veteran's headaches increased in frequency around April or May 2010. While the Veteran was provided traumatic brain injury examinations in 2008 and 2010, it was not until 2013 that he was afforded a headache examination which fully addressed the frequency, duration, and intensity of his headaches. Resolving reasonable doubt in the Veteran's favor, his headaches have met the criteria for a 50 percent rating from the date of his initial claim, September 19, 2008. Staged ratings are therefore not applicable. The Board notes that the Veteran requested a 100 percent rating for his headaches. The initial 50 percent rating he is assigned with this decision is the maximum rating provided by Diagnostic Code 8100. According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). The Board finds that the Veteran's headaches are adequately addressed by the rating criteria. The Veteran's reports of sleep disturbance due to headaches are in contrast to his physicians requests that he discontinue the use of excessive caffeine consumption, and his complaints that his schizophrenia results in insomnia. Additionally, although the Veteran is now in receipt of the maximum rating allowed under Diagnostic Code 8100, his symptoms are not exceptional or unusual, and fall between the 30 percent rating and 50 percent rating. The impact of his headaches on his employment is specifically addressed by the rating criteria as well. Therefore, referral for an extraschedular rating in excess of 50 percent is not warranted. TDIU In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (the Court) held that a claim for a TDIU due to service-connected disability is part and parcel of an increased rating claim when such claim is raised by the record. Here, the Veteran filed a notice of disagreement with his initial noncompensable rating for headaches, and stated that he was unable to work in a statement received by the VA in April 28, 2009. As such, the earliest date for which the VA could grant entitlement to TDIU is April 28, 2009, the date of the informal claim for TDIU. From April 28, 2009 to August 27, 2009, the Veteran was singularly service-connected for headaches, and via this decision, has a rating of 50 percent for this period. Thus, from April 28, 2009 to August 27, 2009, the Veteran did not meet the percentage requirements of 38 C.F.R. § 4.16(a). Notably, the December 2008 VA examiner found that the Veteran's headaches did not affect his usual daily activities, and additionally noted that he was forced to retire in 1975 due to his schizophrenia. Additionally, treatment records reveal an increase in headache symptoms and severity beginning in 2010. While the 2013 VA examiner noted the Veteran's headaches may impair his ability to obtain and retain employment, this opinion was rendered four years later and after the Veteran's increase in symptoms. As noted, the Board has resolved any doubt and awarded a 50 percent schedular rating for his headaches from the date of the Veteran's claim, which contemplates headaches of such severity as to result in severe economic inadaptability. Nevertheless, the overall evidence of record prior to August 27, 2009 does not show that his headaches alone were so severe as to render him unable to secure or maintain substantially gainful employment. As such, the Board finds that referral for extraschedular TDIU is not warranted. See 38 C.F.R. § 4.16(b). From August 28, 2009 to October 31, 2010, the Veteran meets the percentage requirements for TDIU under 38 C.F.R. § 4.16(a), with two disabilities rating at 50 percent, and a combined rating of 80 percent. Additionally, VA treatment records and VA examination reports, throughout the claims file and on virtual VA, reveal that the Veteran's schizophrenia interferes with his activities of daily living and employability. The Veteran was granted entitlement to service connection for schizophrenia on August 28, 2009. As such, entitlement to TDIU from August 28, 2009 to October 31, 2010 is granted. ORDER An initial rating of 50 percent for headaches is granted, subject to the regulations governing the award of monetary benefits. From April 28, 2009 to August 27, 2009, entitlement to TDIU is denied. From August 28, 2009 to October 31, 2010, entitlement to TDIU is granted, subject to the regulations governing the award of monetary benefits. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs