Citation Nr: 1321358 Decision Date: 07/03/13 Archive Date: 07/12/13 DOCKET NO. 09-09 759 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to a total disability rating based on individual unemployability (TDIU) by reason of service-connected disabilities. 2. Entitlement to an evaluation in excess of 10 percent for migraine headaches, status-post skull fracture, prior to September 1, 2009. 3. Entitlement to an evaluation in excess of 30 percent for migraine headaches, status-post skull fracture, beginning on September 1, 2009. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Osegueda, Associate Counsel INTRODUCTION The Veteran had active service in the Navy from November 1981 to December 1981. He had subsequent service in the Army Reserve, including a period of active duty for training (active service) from May 15, 1986 to May 31, 1986. This matter comes before the Board of Veterans' Appeals (Board) from a June 2007 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Seattle, Washington. In that decision, the RO, denied an increased evaluation for the service-connected headaches and continued a 10 percent disability rating. In a February 2013 rating decision, the RO granted an increased evaluation for the headache disability and assigned a 30 percent rating, effective on September 1, 2009, the date of a VA examination showing increased disability. As a higher rating for this disability is assignable before and after this date, and the Veteran is presumed to seek the maximum available benefit, the issue remains viable on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in the file reveals VA treatment records, dated from August 2012 to February 2013, that are pertinent to the issue on appeal. As noted in a February 2013 deferred rating decision, the issue of entitlement to a separate evaluation for the residuals of traumatic brain injury(in addition to the service-connected headaches) has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. In August 2012, prior to promulgation of a final decision, the Veteran expressed his intent to withdraw the issue of entitlement to a TDIU; hence, there is no question of fact or law remaining before the Board as to this matter. 2. Throughout the entire appeal period, the Veteran's service-connected headaches are characterized by characteristic prostrating attacks occurring at least once a month that require avoidance of loud noises, rest in a dark room, and/or medication; although frequent, the headaches are not completely prostrating and prolonged or productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. As the criteria for withdrawal of a Substantive Appeal by the Veteran have been met, the Board has no further jurisdiction as to the matter of entitlement to a TDIU. 38 U.S.C.A. §§ 7104, 7105(d)(5) (West 2002); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2012). 2. The criteria for a 30 percent rating, but not higher, for migraine headaches has been approximated for the period prior to September 1, 2009. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.124a, Diagnostic Code 8100 (2012). 3. The criteria for a rating in excess of 30 percent for migraine headaches have not been met or approximated for any period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.124a, Diagnostic Code 8100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), 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. 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. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial disability-rating and effective-date elements of a service connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet.App. 112 (2004). In Dingess v. Nicholson, 19 Vet.App. 473, 486 (2006), the Court held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. To the extent that the Veteran has expressed his clear intention to withdraw the claim of entitlement to a TDIU, a discussion of VCAA as to this matter is unnecessary. With respect to the remaining issues on appeal, the Board notes that the Veteran is challenging the disability evaluations assigned for headaches, evaluated as 10 percent disabling prior to September 1, 2009 and 30 percent disabling thereafter. Specific to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. §5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing his or her entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO provided the Veteran with notice in February 2007, prior to the initial decision on the claim in June 2007. Therefore, the timing requirement of the notice as set forth in Pelegrini has been met and to decide the appeal would not be prejudicial to the claimant. Moreover, the requirements with respect to the content of the notice were met in this case. Specifically, the letter informed the Veteran of what evidence was needed to substantiate his claim and of the division of responsibilities in obtaining such evidence. The letter also explained how disability ratings and effective dates are determined. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records and all identified and available post-service medical records are in the claims file and were reviewed by both the RO and the Board in connection with the claim. The Veteran has not identified any other outstanding records that are pertinent to the issue currently on appeal. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the Veteran was afforded VA examinations in March 2007, September 2009, and December 2012 in connection with his claim. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations are adequate to decide the case because, as shown below, they were based upon consideration of the Veteran's pertinent medical history, as well as her lay assertions and current complaints, and they describe the service-connected headache disability picture in detail sufficient to allow the Board to make a fully informed determination. Id. In a March 2013 VA Form 646, the Veteran's representative suggested that the December 2012 VA examination was inadequate because the examination was conducted by a physician specializing in Physical Medicine and Rehabilitation, rather than a neurologist. However, the examination report is complete, and nothing in the report suggests that the examiner was not competent to perform the required examination. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (holding that VA may satisfy its duty to assist by providing a medical examination conducted by someone who is able to provide "competent medical evidence" under § 3.159(a)(1)). Furthermore, the Veteran or his representative have not noted any particular findings (or absence of findings) that were inaccurate or insufficient to suggest that the examination or opinions were inadequate. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009). In this case, the examination report documents that the examiner reviewed the claims file, performed the appropriate testing, recorded the results, elicited in depth medical histories from the Veteran with respect to his migraines, and provided an opinion as to the functional impact of the headaches based on these results and the Veteran's history; thus, the Board finds the examinations were adequate for rating purposes. There is also no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected headaches since he was last examined. 38 C.F.R. § 3.327(a) (2012). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. Thus, there is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4) (2012). VA has further assisted the Veteran and his representative throughout the course of this appeal by providing them with a Statement of the Case (SOC) and Supplemental Statements of the Case (SSOC), which informed them of the laws and regulations relevant to the Veteran's claim. The Board concludes that the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim, and he did, in fact, participate. Washington v. Nicolson, 21 Vet. App. 191 (2007). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the particular claims on appeal. He has been given ample opportunity to present evidence and argument in support of his claim. All relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained, and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). Withdrawal The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.101. Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal, which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or by his or her authorized representative. 3 8 C.F.R. § 20.204. In an August 2012 statement, the Veteran expressed his clear intent to withdraw the issues of entitlement to a TDIU from appellate review. Consequently, there are no allegations of error of fact or law remaining for appellate review in connection with this claim. Accordingly, as this matter is found to be withdrawn, the appeal, to this extent, is dismissed. Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. 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). Where, as here, entitlement to compensation has already been established and increases in the disability ratings are at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service- connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the Board finds that the Veteran's migraine headache disability more closely approximates a 30 percent evaluation for the entire period on appeal. The assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One Diagnostic Code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a Diagnostic Code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Words such as "moderate," "moderately severe," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. 4.6 (2012). Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2012). Migraine headaches are assigned disability ratings based on the frequency of prostrating attacks. 38 C.F.R. § 4.124a, Diagnostic Code 8100. 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 maximum 50 percent rating is assigned for migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Id. The Rating Schedule does not define "prostrating." "Prostration" has been defined as "complete physical or mental exhaustion." MERRIAM-WEBSTER'S NEW COLLEGIATE DICTIONARY 999 (11th ed. 2007). "Prostration" has also been defined as "extreme exhaustion or powerlessness." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1554 (31st ed. 2007). According to Stedman's Medical Dictionary, 27th Edition (2000), p. 1461, "prostration" is defined as "a marked loss of strength, as in exhaustion." See Eady v. Shinseki, No. 11-3223, 2013 WL 500460 (Vet. App. Feb. 12, 2013) (The Board adopts the Court's definition as its own.). Additionally, the terms "productive of severe economic adaptability" have not been clearly defined by regulations or by case law. The United States Court of Appeals for Veteran's Claims (Court) has noted that "productive of" can either have the meaning of "producing" or "capable of producing." Pierce v. Principi, 18 Vet. App. 440, 445 (2004). Thus, migraines need not actually "produce" severe economic inadaptability to warrant the 50 percent rating. Id. at 445-46. Further, "economic inadaptability" does not mean unemployability, as such would undermine the purpose of regulations pertaining to a TDIU. Id. at 446; see also 38 C.F.R. § 4.16 (2012). The Board notes, however, that the migraines must be, at minimum capable of producing "severe" economic inadaptability. Factual Background In a June 1988 rating decision, the RO granted service connection for a closed skull injury and assigned a 10 percent disability evaluation effective on September 15, 1987. In September 2006, the Veteran submitted an informal claim for an increased evaluation for his service-connected migraine headaches, status-post skull fracture. In Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court observed that when a claim for an increased rating is granted, the effective date assigned may be up to one year prior to the date that the application for increase was received if it is factually ascertainable that an increase in disability had occurred within that time frame. See 38 U.S.C.A. § 5110 (West 2002). In the September 2006 claim, the Veteran stated that if he was able to perform all of his hourly work as a welder, he would be making about $3,100 per month. In a March 2007 VA-sponsored QTC examination, the Veteran reported that he had recurrent headaches. He indicated that when the headaches occurred, he was able to go to work but he required medication. He had headaches an average of twice per week and each episode lasted for approximately ten hours. A neurological examination was normal. In a March 2007 VA-sponsored QTC examination addendum, the examiner opined that the Veteran's headache disability affected his daily living. He reported that the Veteran missed 60 days of work in the past year due to his headaches. He noted that if the Veteran treated his headaches early, he could return to work within a few hours, but if he woke up with a headache, he had to stay in bed all day, he was unable to keep down any food, and he was unable to inhabit a lighted room. A March 2007 VA-sponsored QTC examination x-ray study of the skull showed some mucoperiosteal thickening of both maxillary sinuses, more on the left than the right. The skeletal system was normal and there was no evidence of fracture or other pathology. The interpreting radiologist noted that the findings suggested sinusitis, more in the left maxilla than other sites, and that it was an otherwise normal study. In the addendum opinion referenced above, the examiner noted that the x-ray findings of sinusitis were an incidental finding to the focus of the examination. VA treatment notes dated from December 2007 to December 2008 documented emergency treatment for migraine headaches in December 2007, January 2008, February 2008, May 2008, June 2008, and December 2008. He reported symptoms of photophobia, pain, nausea, and vomiting. In a January 2008 VA treatment note, the Veteran reported that he had migraine headaches that recurred periodically. He related that he usually took Zolmitriptan and Oxycodone or acetaminophen with good results. In a February 2008 VA treatment note, a primary care physician noted that the Veteran was recently seen in the emergency room with a migraine headache and he responded well to injectable Sumatriptan. In a July 2008 VA nursing note, a nurse indicated that the Veteran called to request an early refill of his Oxycodone with acetaminophen prescription. He stated that he needed an early refill because he had taken one extra tablet per day for a few days to treat his headaches. Thereafter, an early refill was prescribed by a physician. In a December 2008 VA treatment note, the Veteran reported that he had migraines approximately three times per month. He indicated that he was not taking any medication to prevent the headaches. He noted that he occasionally had an aura, nausea, photophobia, and phonophobia. He indicated that Zomig was effective if he took it before he became nauseous. The treating nurse practitioner prescribed the Veteran Propranolol to help prevent migraines. VA treatment notes dated from February 2009 to August 2012 documented emergency treatment for migraine headaches in February 2009, March 2009, April 2009, May 2009, March 2010, May 2010, November 2010, January 2011, February 2011, March 2011, August 2011 (three visits), September 2011, October 2011, November 2011, December 2011, June 2012 (three visits), July 2012 (two visits), and August 2012. Symptoms included nausea, vomiting, pain, and photophobia. In a February 2009 VA emergency department treatment note, the Veteran reported that he had three headaches in the past week. In a March 2009 VA treatment note, the Veteran reported that he had migraines twice per week and occasional "regular" headaches. He noted that he was tolerating long-acting Propranolol, but he felt it had not decreased the frequency of his migraines. As a result, the primary care physician increased his dosage. In an April 2009 VA treatment note, the Veteran complained of an increased frequency of migraines. He noted that during a recent migraine, he did not get relief from Imetrex and Zomig, but he was given Hydromorphone in the emergency room that stopped the headache. In a May 2009 VA treatment note, the Veteran reported that he used injectable Imitrex for abortive purposes and Propranolol for prophylaxis in treating and controlling his migraines. He indicated that he continued to have at least one migraine episode per week. During a September 2009 VA examination, the Veteran reported that he had headaches with extreme pain, most often localized in the right-sided temple area; vomiting; light sensitivity; hypersensitivity to sound; and dizziness with movement. He noted that when the headaches occurred, he had to stay in bed and he was unable to do anything. He stated that his headaches were "debilitating." He indicated that he was unable to work or take care of his child until the headache dissipated. He experienced headaches an average of four to six times per month. The headaches lasted for approximately 12 hours. He denied any burning sensations, weakness, or paralysis. He noted that he had numbness and tingling in his extremities. A neurological examination was within normal limits. In an October 2009 VA treatment note, the Veteran reported that he was no longer taking Propranolol. He requested a small amount of Hydromorphone to take during future migraine episodes. In a December 2010 VA treatment note, the Veteran reported that he had migraines approximately twice per week. He stated that he usually needed two doses of Imetrex to relieve his headache. He was not taking a prophylactic at the time. He related that Hydromorphone helped with his migraine symptoms. He was prescribed small amounts of Hydrocodone for headaches but not enough to take daily. In a March 2011 VA emergency department treatment note, the Veteran presented with a flare-up of his typical migraines. He reported that he treated himself with two injections of Imitrex without relief. He stated that he presented to the emergency room the night before, but there was a prolonged wait and he left without being seen. He indicated that he returned home and administered another injection of Imitrex that did not provide much relief. He requested a Toradol/Imitrex combination that was normally very efficacious for him. He was provided with a Toradol/Imitrex combination and allowed to rest in a quiet, dark room. The treating physician reported that he checked on the Veteran after 60 minutes and he was sitting up and stated that the pain had resolved and he felt much better. He stated that he planned to pitch at his daughter's softball game later in the day. He was discharged home. In a November 2011 VA emergency department note, the examining physician noted that the Veteran had 14 visits to the emergency room for migraine treatment since March 2010. She noted that it was his sixth visit since August 2011. She noted that the vast majority of his emergency treatments were provided at night or on weekends. In a May 2012 VA treatment note, the Veteran reported that he recently changed his sleeping position and notice that his migraines had decreased in frequency. He stated that he used to have six to eight migraines per month, but he now had four to five episodes per month. In an August 2012 statement, the Veteran reported that his employer of four years had "made it clear that lost time from chronic migraine headaches and pain would not cost [him] this job." He stated that his employer placed a couch in an office so he could give himself a shot and lay down for a few hours if he had a migraine at work. He noted that he was paid hourly, so the headaches cost him hourly wages at work when he was unable to function. He related that he had between four and eight headaches per month and some lasted up to two days in duration. VA treatment records dated from August 2012 to February 2013 documented emergency treatment for migraines in August 2012 (two visits), November 2012, and January 2013 (five visits). In a September 2012 Decision Review Officer (DRO) informal conference report, the Veteran's representative reported that the Veteran had to work to support his children, but his boss was very flexible and allowed him to miss a lot of time from work due to his migraines. During a December 2012 VA-sponsored QTC examination, the Veteran reported that he had prostrating attacks of headache pain from migraines, on average, more frequently than once per month. He reported that he had pulsating or throbbing pain on both sides of his head. The examiner noted that the Veteran's headache condition impacted his ability to work because he missed about four days of work per month due to severe headaches. In a January 2013 VA emergency department treatment note, the treating nurse noted that the Veteran was treated in the emergency room four times in the past two weeks for injections to alleviate his migraine headaches. Analysis First, with respect to the time period prior to September 1, 2009, the evidence of record demonstrates that the Veteran's headaches more nearly approximate the criteria for a 30 percent rating. Throughout the period prior to September 1, 2009, the Veteran presented to the emergency room for treatment of migraine headaches, as documented in various VA treatment reports. See VA treatment reports from December 2007, January 2008, February 2008, May 2008, June 2008, December 2008, February 2009, March 2009, April 2009, and May 2009. He reported varying frequencies of headaches throughout the period. During the March 2007 VA-sponsored QTC examination, the Veteran reported that he had an average of twice weekly and each episode lasted for ten hours. In a February 2009 VA treatment note, he reported that he had three headaches in the past week. In a March 2009 VA treatment note, he stated he had migraines twice per week and occasional regular headaches throughout the week. In a May 2009 VA treatment note, he reported that he continued to have at least one migraine episode per week. Based on the review of the relevant examination reports, VA treatment records, and his testimony, the Board finds that the Veteran's headaches satisfy the criteria contemplated by the 30 percent rating under Diagnostic Code 8100. The Veteran consistently reported at least weekly headaches; however, it is unclear whether the headaches were prostrating. The evidence shows that the Veteran sought treatment at the VA emergency room nearly every month. The evidence also indicates that the Veteran was prescribed medication to treat his migraine headaches without presenting to the emergency room. In a January 2009 VA treatment note, the Veteran stated that he usually took Zolmitriptan and Oxycodon or acetaminophen with good results. In a July 2008 VA nursing note, the Veteran requested an early refill of his Oxycodon prescription because he had taken one extra tablet per day for a few days to treat his headaches. In a December 2008 VA treatment note, the Veteran was prescribed Propranolol as a prophylaxis to prevent the migraines. In an April 2009 VA treatment note, the Veteran reported that he took Imetrex and Zomig during a recent migraine, but they did not provide relief. He was given Hydromorphone in the emergency room that stopped the headache. There is no dispute that Veteran is competent to report symptoms of headaches that require the avoidance of loud noises, rest in a dark room, and medication because these are symptoms that may be "actually observed" and are "within the realm of his personal knowledge." Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). These statements are also deemed credible. Giving the benefit of the doubt to the Veteran, the Board finds that the Veteran has sufficiently described characteristic and prostrating and occurring at least once a month for the period prior to September 1, 2009. His symptoms therefore more nearly approximate the next higher 30 percent rating for that period. The next pertinent inquiry is whether, throughout the entire appellate period (both prior to and after September 1, 2009), the Veteran's symptoms have more nearly approximated the criteria for the next higher, and maximum, 50 percent rating. After carefully reviewing the evidence of record, the Board finds that they do not. The 50 percent rating contemplates very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. As indicated above, the Veteran has consistently described persistent headaches occurring an average of twice weekly. Even if the Board were to consider his headaches to be "very frequent," however, the evidence does not establish that these headaches are completely prostrating, prolonged attacks productive of "severe economic inadaptability." It is acknowledged that the Veteran describes persistent bad headaches manifested by pain, sensitivity to noise and light, nausea, and vomiting. Additionally, his headache symptoms occasionally affect his work. See March 2007 QTC addendum opinion (Veteran reported he missed 60 days of work in the past year due to headaches); and December 2012 VA-sponsored QTC examination (Veteran reported he missed four days of work per month due to severe headaches). However, during the March 2007 VA-sponsored QTC examination, the Veteran reported that when his headaches occurred, he was able to go to work, but he required medication. Additionally, in the March 2007 QTC addendum opinion, the Veteran reported that if he treated his headaches early, he could return to work within a few hours. Additionally, in an August 2012 statement, the Veteran reported that his employer placed a couch in an office so he could give himself a shot and lay down for a few hours if he had a migraine at work. Likewise, in the September 2012 DRO informal conference report, the Veteran's representative reported that the Veteran's boss was very flexible and allowed him to miss a lot of time from work due to his migraines. This evidence shows that for a majority of the time, the Veteran is able to work, which is highly probative evidence that he does not experience the type of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability that are contemplated by a 50 percent rating. Therefore, throughout the entire appeal period, the Veteran's symptoms have not more nearly approximated the criteria for a 50 percent rating. 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2012). The Board has also considered whether staged ratings are appropriate in this case. See Hart v. Mansfield, 21 Vet. App. 505 (2007). However, at no time during the relevant appeal period has the service-connected migraine headache disability more nearly met or nearly approximated the criteria for greater than a 30 percent rating under Diagnostic Code 8100. In addition, there is no evidence of distinct periods of time where the disability was of less severity than that contemplated by a 30 percent rating, and therefore, staged ratings are not for application in the instant case. Extraschedular Consideration In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1). However, in this case, the Board finds that the record does not show that the Veteran's migraine headache disability is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). 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. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1) ) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology, characterized by characteristic prostrating attacks occurring at least once a month that require avoidance of loud noises, rest in a dark room, and/or medication. Indeed, the 30 percent evaluation contemplates the overall effect of all of his symptomatology on his occupational functioning. As discussed above, there is a higher rating available under the Diagnostic Code, but the Veteran's disability is not productive of such manifestations. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected migraine headaches under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008). ORDER The appeal as to the matter of entitlement to a TDIU is dismissed. Prior to September 1, 2009, entitlement to an increased evaluation of 30 percent for service-connected migraine headaches, status-post skull fracture, is granted, subject to controlling regulations applicable to the payment of monetary benefits. Both prior to and after September 1, 2009, entitlement to an evaluation in excess of 30 percent for service-connected migraine headaches, status-post skull fracture, is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs