Citation Nr: 1327103 Decision Date: 08/23/13 Archive Date: 08/29/13 DOCKET NO. 00-14 421A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to a rating in excess of 30 percent for migraine headaches. 2. Entitlement to an effective date earlier than October 23, 2008, for the award of service connection and the assignment of a 10 percent rating for traumatic brain injury (TBI) residuals. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: John Walus, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran served on active duty from June 1977 to June 1980, and from January 1987 to January 1990. This case is before the Board of Veterans' Appeals (Board) on appeal from May 1999 and August 2010 rating decisions rendered by the Department of Veterans Affairs (VA) Regional Offices (ROs) in Waco, Texas and Detroit, Michigan. The May 1999 rating decision, in pertinent part, increased the rating from 0 percent to 10 percent for the service-connected headaches, effective February 10, 1999. The August 2010 decision granted and assigned a 10 percent rating for TBI residuals, effective October 23, 2008. A June 2003 rating decision increased the rating from 10 percent to 30 percent for the Veteran's migraine headaches, effective February 10, 1999. However, as that grant does not represent a total grant of benefits sought on appeal, and the Veteran elected to continue with his appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). During the course of the appeal, jurisdiction was transferred to the Detroit, Michigan, RO. The Veteran provided testimony at a hearing before personnel at the RO in October 2001 and before the Board in May 2013. Transcripts of both hearings have been associated with the claims file. During the May 2013 hearing, the Veteran submitted additional evidence with a waiver of RO consideration. 38 C.F.R. § 20.1304 (2012). Therefore, the Board may properly consider such newly received evidence. In March 2005, this matter was remanded by the Board for further evidentiary development and again in October 2009 for due process reasons. The Board has reviewed the Veteran's claims file and the record maintained in the Virtual VA paperless claims processing system. 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). The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. The Veteran's migraine headaches are productive of symptoms that more nearly resemble headaches which are very frequently completely prostrating with prolonged attacks productive of severe economic inadaptability. 2. The claim for entitlement to an effective date prior to October 23, 2008, for the award of entitlement to service connection and the assignment of a 10 percent rating for TBI residuals is legally precluded. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for a 50 percent rating for migraine headaches have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.124a, Diagnostic Code 8100 (2012). 2. The criteria for an effective date prior to October 23, 2008, for the award of service connection and the assignment of a 30 percent rating for TBI residuals, have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.114 (a)(1) (2012), 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify & to Assist Before addressing the merits of the issues on appeal, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any 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 claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Regarding the Veteran's increased rating claim, the VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet. App. 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"). Indeed, given the favorable disposition of the claim for an increased rating for migraine headaches, the Board finds that all notification and development actions needed to fairly adjudicate the claim have been accomplished. Regarding the Veteran's earlier effective date claim, prior to the initial denial of the present claim, the RO advised the Veteran of what the evidence must show to establish entitlement to service connection for residuals of head trauma in a notice letter sent in November 2008. The Veteran was also provided general notice as to how VA determines disability ratings and effective dates and examples of the evidence used to make those determinations, pursuant to Dingess. The Board notes that the Veteran was not provided with a VCAA-compliant notice letter specifically addressing his claim for earlier effective date for the award of service connection for TBI; however, the request for an earlier effective date is a downstream issue, which was initiated by a notice of disagreement (NOD). The Court has held that, as in this case, once a NOD from a decision establishing service connection and assigning the rating and effective date has been filed, the notice requirements of 38 U.S.C.A. §§ 5104 and 7105 control as to the further communications with the appellant, including as to what "evidence [is] necessary to establish a more favorable decision with respect to downstream elements...." Goodwin v. Peake, 22 Vet. App. 128, 127 (2008). Moreover, and of significant import, the resolution of the Veteran's claim is dependent on the Court's interpretation of the law and regulations pertaining to the claim for VA benefits. Consequently, notice to the Veteran would not change the resolution of the disagreement with the effective date. Therefore, no further notice under the VCAA is warranted. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); see generally Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000); see also Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (holding that the VCAA is not applicable where it could not affect a pending matter and could have no application as a matter of law). And finally the Board further notes that adjudication of a claim for an earlier effective date from a grant of service connection is based upon evidence already in the claims folder; the resolution of the claim depends upon when certain document(s) were either received by VA and/or promulgated to the veteran. See generally 38 C.F.R. §§ 3.151, 3.155, 3.156, 3.157, 3.160, 3.400 (2012). Consequently, there is no additional development that can be conducted, examination performed, nor any other records which can be obtained, which would substantiate his claim. As noted above, the Veteran was provided with a Board hearing in May 2013. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that the provisions of 38 C.F.R. § 3.103(c) (2) (2012) require that the hearing officer who chairs a hearing fulfill two duties to comply with the above 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. The Board finds that both duties were met during the hearing. It was clear during the hearing that the Veteran had a full understanding of the issue on appeal. The undersigned Acting Veteran's Law Judge solicited the Veteran to set forth his contentions relevant to the claim for an earlier effective date for the award of service connection and the assignment of a 10 percent rating for TBI residuals. No additional evidence was identified during the hearing. For the above reasons, the Board finds that, consistent with Bryant, VA has complied with the duties set forth in 38 C.F.R. § 3.103 (c) (2) and that the Board can adjudicate the claim based on the current record. It must be noted that neither the Veteran nor his representative have asserted that VA failed to comply with the provisions of 38 C.F.R. § 3.103(c) (2) nor identified any prejudice in the conduct of the Veteran's Board hearing. Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Earlier Effective Date Claim In the absence of clear and unmistakable error (CUE), a final RO decision is not subject to revision except on the receipt of new and material evidence. 38 U.S.C.A. §§ 7105, 7111 (West 2002). If evidence establishes the error, the prior decision shall be reversed or revised. 38 U.S.C.A. § 5109A. There is no such procedure as a freestanding challenge to the finality of a VA decision. See DiCarlo v. Nicholson, 20 Vet. App. 52 (2006). Further, after a decision establishing an effective date becomes final, there is no such procedure as a freestanding claim for an earlier effective date. Rudd v. Nicholson, 20 Vet. App. 296 (2006). Except as otherwise provided, the effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection on a direct basis, shall be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from service. Otherwise, the effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400(b)(2)(i) (2012). The effective date for a reopened claim, after a final disallowance, shall be the date of receipt of the new claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2) (2012). The effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability occurred, if application is received within one year from such date; otherwise, the effective date will be the date of receipt of the claim for increase, or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a),(b)(2) (West 2002); 38 C.F.R. § 3.400(o) (2012). In cases involving new and material evidence, where the evidence is received more than a year after the final disallowance of a claim, the effective date is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.156 (b); 3.400(q)(2) (2012). A decision assigning an effective date for a service-connected disability becomes final when the decision is not appealed, and an appellant can only attempt to overcome finality of the decision by a request for revision based on clear and unmistakable error, or by a claim to reopen based upon new and material evidence. However, because the proper effective date for an award based on claim to reopen could be no earlier than the date on which that claim was received, only a request for revision based on clear and unmistakable error could result in the assignment of an earlier effective date. Rudd, 20 Vet. App. at 299. Where pension, compensation, or dependency and indemnity compensation is awarded or increased pursuant to a liberalizing law, or a liberalizing VA issue approved by the Secretary or by the Secretary's direction, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. 38 U.S.C.A. § 5110 (g); 38 C.F.R. § 3.114. If a claim is reviewed on the initiative of VA within 1 year from the effective date of the law or VA issue, or at the request of a claimant received within 1 year from that date, benefits may be authorized from the effective date of the law or VA issue. 38 C.F.R. § 3.114(a)(1). If a claim is reviewed on the initiative of VA more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of administrative determination of entitlement. 38 C.F.R. § 3.114(a)(2). If a claim is reviewed at the request of the claimant more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of receipt of such request. 38 C.F.R. § 3.114(a)(3). The intent of these provisions was to compensate claimants who might have been unaware or less diligent in filing a claim for benefits that they were otherwise entitled to by enactment of liberalizing legislation. See McCay v. Brown, 106 F.3d 1577 (Fed. Cir. 1997). The Veteran seeks an effective date earlier than October 23, 2008, for the award of service connection and the assignment of a 10 percent rating for TBI residuals. Historically, the Veteran filed an initial claim for service connection for head injuries which was received by VA on July 2, 1980. A September 1982 rating decision denied service connection for residuals of a head injury, headaches, numbness of arms and legs, and vision problems. That same month, the Veteran was provided with a letter that explained to him that he had one year to appeal this rating decision or it would become final. As the Veteran did not appeal the decision and new and material evidence pertinent to the Veteran's claim was not received by VA or constructively in its possession within one year of the September 1982 rating decision, it became final. See 38 U.S.C.A. § 7105(c); 38 C.F.R. § 3.104. On February 13, 1985, the RO received the Veteran's request to reopen his previously denied claim of service connection for residuals of a head injury. An April 1985 administrative decision denied the Veteran's claim. The Veteran filed a notice of disagreement in May 1985 and a Statement of the Case was issued that same month. However, the Veteran did not submit a substantive appeal, and the April 1985 administrative decision became final. On May 27, 1994, the RO received the Veteran's claim for entitlement to service connection for "head injury-cut above right eye and migraine headaches." A March 1995 rating decision granted and assigned a 10 percent rating for migraine headaches, effective May 27, 1994 (date of receipt of the original service connection claim), under Diagnostic Code 8100. However, the RO determined that new and material evidence had not been submitted to reopen the claim for residuals of a head injury. In April 1995, the Veteran was provided with a letter that explained to him that he had one year to appeal this rating decision or it would become final. That same month, the Veteran submitted a notice of disagreement, construed by the RO as a request to reopen his claim. On May 8, 1995, the RO sent correspondence to the Veteran requesting new and material evidence in support of his claim within 60 days. However, the record is negative for any response from the Veteran within that period and the March 1995 rating decision became final. See 38 U.S.C.A. § 38 U.S.C.A. § 7105(c); 38 C.F.R. § 3.104. On January 14, 2002, the RO received the Veteran's claim for entitlement to service connection for a brain injury (cognitive changes (due to closed head injury)). On August 12, 2004, the RO received the Veteran's claim for entitlement to service connection for other residuals of head trauma. On March 31, 2008 and July 31, 2008, the RO received the Veteran's claim for service connection for TBI. During the course of the appeal, the regulations for the evaluation of brain disease due to trauma or TBI under Diagnostic Code 8045 were amended, effective October 23, 2008. See 73 Fed. Reg. 54,693-54,708 (Sept. 23, 2008). The effective date for these revisions is October 23, 2008. See 38 C.F.R. § 4.124, Note (5). In a December 2008 rating decision, the RO denied service connection for residuals of TBI. On January 20, 2009, the RO received the Veteran's request for reconsideration of the December 2008 rating decision. In an August 2010 rating decision, the RO granted service connection and assigned a 10 percent rating for TBI residuals, effective October 23, 2008 (the effective date of the revised rating criteria), pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8045. That same month, the Veteran filed a timely notice of disagreement with the effective date assigned in the August 2010 rating decision. The Board observes that in his August 2010 notice of disagreement, the Veteran appeared to question the reason why the RO failed to assign a 30 percent rating for his migraine headaches (under Diagnostic Code 8100) and a concurrent 10 percent rating for residuals of TBI (under Diagnostic Code 8045) prior to October 23, 2008. In the May 2012 Statement of the Case, the RO explained that a 10 percent rating was assigned for complaints of mild memory loss (under Diagnostic Code 8045). Prior to October 23, 2008, such an evaluation would have warranted a 10 percent rating as being a subjective symptom attributed to a head injury. The RO explained that it would have been impossible to have assigned a 10 percent rating for complaints of memory loss (under Diagnostic Code 8045) prior to October 23, 2008, while also continuing a 30 percent rating for migraine headaches due to head trauma. Indeed, under the rating criteria in effect prior to October 23, 2008, Diagnostic Code 8045 provides, in pertinent part, that purely subjective complaints such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, will be rated 10 percent and no more under Diagnostic Code 9304, and will not be combined with any other rating for a disability due to brain trauma. In other words, for the period prior to October 23, 2008, the Veteran cannot be awarded a 10 percent rating for residuals of head trauma under Diagnostic Code 8045 in addition to a 30 percent rating for migraine headaches under Diagnostic Code 8100, as doing so constitutes prohibited pyramiding since both diagnostic codes contemplate manifestations of head trauma. Esteban v. Brown, 6 Vet. App. 259 (1994); 38 C.F.R. § 4.14 (2012). After having carefully reviewed the evidence of record, the Board finds that an effective date earlier than October 23, 2008, for the award of service connection and the assignment of a 10 percent rating for TBI residuals is legally precluded. Pursuant to 38 C.F.R. § 3.114(a)(1) (2012), an effective date prior to October 23, 2008 is not warranted. In this regard, the Veteran's claim for entitlement to service connection for TBI residuals was reviewed at a request of the Veteran received within 1 year from October 23, 2008, the effective date for the revised criteria for TBI. Therefore, the Board must find that the Veteran does not meet the criteria for establishing an effective date prior to October 23, 2008, for the award of service connection and the assignment of a 10 percent disability rating for TBI residuals. There is no doubt of material facts to be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b). Increased Rating Claim The Veteran's migraine headaches have been rated as 30 percent disabling under Diagnostic Code 8100. Under Diagnostic Code 8100, migraine headaches with less frequent attacks are rated noncompensably 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 once a month over 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. For definitional purposes, prostration is extreme exhaustion or powerlessness. Dorland's Illustrated Medical Dictionary 1523 (30th ed. 2003). Turning to the merits of the claim, at the time of the Veteran's February 1999 increased rating claim, he complained of continuous headaches with flare-ups at the rate of two or three times a day. VA treatment records include a February 1999 report which reflects an assessment of chronic vascular headaches. A March 1999 report indicates that the Veteran's headaches were better and were controlled with medication. A June 1999 CT scan of the head and November 1999 MRI of the brain were normal. On VA neurological disorders examination in April 1999, the Veteran presented with complaints of tension headaches precipitated by light, increased frustration, and tension and alleviated by were rest and medication. Headaches occurred 2 to 3 times a week, without weakness of fatigue or gastrointestinal symptoms. At that time, the Veteran was employed at a microchip processing plant. He worked in shipping and receiving for the past two years. Treatment consisted of a nasal spray that provided no relief and over-the-counter medication. On examination, the examiner diagnosed tension headaches. VA treatment records include a May 1999 report which reflects an assessment of chronic headaches most likely vascular headaches with some element of tension headaches. In June 1999, the assessment was headaches of a chronic nature. In September 1999, he complained of headaches with nausea that occurred monthly, lasted 3 to 4 days, and were prostrating. However, the headaches responded to medication and a recent CT scan was normal. At that time, he was employed and was active in sports. In an October 1999 notice of disagreement, the Veteran stated that he had a severe migraine headache once a month for a period of several months. In a January 2000 statement, the Veteran stated that his medication was changed due to the fact that he had prostrating and prolonged attacks at least once per month for the last 6 months. VA treatment records include a January 2000 report which reflects the Veteran's complaint of having one bad migraine headache per month that responded to Sumatriptan. In August 2000, he complained of daily headaches that were often prostrating. An April 2001 report reflects an impression of chronic recurring headaches. A July 2001 CT scan of the head was within normal limits and an MRI of the skull was also normal. Reports dated in August 2001 report reflect an assessment of persistent headaches and indicate that the Veteran was currently employed as a forklift operator. An October 2001 report reflects an assessment of chronic headaches. Reports dated in November 2001 report show that the Veteran reported daily right-sided headaches that never went away and indicate that he was employed at a shipping company loading trucks. During the October 2001 hearing, the Veteran testified that he had 2 to 3 migraines that lasted approximately 30 minutes prior to taking medication. At that time, he was employed as loader and forklift driver. The Veteran testified that he exhausted all of his personal and sick time due to headaches. He also testified that his company accommodated his headaches and allowed him to sit down as needed. Private medical records include a December 2001 report completed on behalf of the Veteran's employer regarding his chronic medical problems. At that time, the Veteran presented with a history significant for chronic headaches in addition to chronic neck pain. He stated that his headaches occurred 1 to 2 times per week and were associated with dizziness, visual changes, nausea, occasional photophobia, and sonophobia. The assessment was work physical, chronic headaches, and cervical disc disease. He was provided a medical clearance for his occupation and was instructed to continue current medications. VA treatment records include a January 2002 report which shows that the Veteran appeared to be doing better with his headaches and was functioning "very well" at work. On VA neurological disorders examination in February 2002, the Veteran presented with complaints of severe headaches that occurred monthly and lasted as many as 3 days and were accompanied by nausea. They were rated 10 out of 10 on the pain scale during which the Veteran was unable to get out of bed. A recent headache caused him to leave work early due to pain. Headaches usually responded to medication and the examiner diagnosed migraine headaches that were debilitating at their worst. The Veteran reported headaches that occurred approximately once every 3 months. VA treatment records include an April 2002 report with an impression of chronic recurring mixed-type headaches. In October 2003, the Veteran complained of constant disabling headaches, but he maintained employment with a temporary service. In January 2004, he complained of daily headaches and a recent severe headache that awakened him from his sleep. On VA PTSD examination in February 2004, the Veteran complained of 2-3 migraine headaches daily with significant pain. At that time, he had continued employment at a manufacturing plant. VA treatment records include an October 2004 report which shows that the Veteran reported that his headaches were worsening. He complained of daily headaches that lasted all day and stated that he felt like his head was on fire. In a January 2005 statement, the Veteran's academic support coordinator stated that the Veteran reported that his medical condition was declining and mentioned that he had frequent severe headaches after looking at a computer screen during a computer information systems class. VA treatment records include an April 2005 medical report which shows that the Veteran was reportedly unemployed. In May 2005, he complained of migraines that went away if treated. The assessment was post-traumatic migraines. In November 2005, he presented with a headache for the past three weeks with intermittent intensity and bitemporal in nature. He was unable to obtain significant relief with medication. In December 2005, the Veteran complained of headaches that were nearly constant. In a June 2005 statement, the Veteran stated that he had migraine headaches and suffered from daily prolonged attacks that adversely affected his ability to obtain or to maintain gainful employment. On October 2007 VA neurological disorders examination, the Veteran complained of migraines that occurred about 2 to 3 times per week and were throbbing and excruciating in nature associated with nausea, blurring vision, and photophobia. He reported little improvement with medication. He stated that he had severe prostrating and prolonged migraine headaches 2 times a week that lasted about 8 hours. During that time, he lied down and was unable to perform many of his daily activities. He indicated that he had prior employment as warehouse worker, but had not worked in nearly three years. He stated that he was admitted in the hospital in early January 2007 for management of headaches, but denied any subsequent hospitalizations or emergency room visits for management of migraine headaches. The examiner diagnosed migraine headaches by history. On VA neurological disorders examination in January 2007, the Veteran presented with complaints of frequent and almost daily headaches. He complained of 2 to 3 headaches per day that usually lasted for a few hours. They were described as throbbing and excruciating in nature. He tried several medications without improvement. During a migraine, he rested in a dark quiet room. When he was employed as a warehouse worker, he stated that he used sick leave an average of 4 to 5 times a month due to migraines and indicated that he had been unemployed for the past two and one-half years. There was no restriction of activities of daily living. The examiner diagnosed migraine headaches by history. VA treatment records include reports dated in August 2008 which reflect the Veteran's complaint of daily chronic headaches. In January 2009, he reportedly had not had a bad migraine in months. On VA headaches DBQ examination in May 2012, the Veteran presented with daily headaches rated an 8.5 out of 10 on the pain scale. He described prostrating headaches that lasted less than one day. The examiner stated that the Veteran had very frequent prostrating and prolonged attacks of migraine headache pain, but opined that they did not impact his ability to work. Considering the evidence of record in light of the above criteria, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the overall record supports the assignment of the maximum 50 percent rating for migraine headaches. During the pendency of the appeal, the Veteran has described having at least one migraine headache a week that is prostrating which include severe pain, nausea, light sensitivity and require him to lie down for extended periods of time or retreat to a darkened room. In addition, the May 2012 VA examiner stated that the Veteran had very frequent prostrating and prolonged attacks of migraine headache pain. Comparing these manifestations to the rating criteria, it is clear that the criteria for a 30 percent rating are greatly exceeded, because that rating requires characteristic prostrating attacks that occur only once a month. Throughout the appeal period, the Veteran's migraines have occurred much more frequently than once per month. The Board notes that the Veteran is competent to report the frequency and severity of his migraine headache episodes, as both are capable of lay observation. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (a lay person is competent to report symptoms based on personal observation when no special knowledge or training is required). Moreover, the Board finds the Veteran's reports to be credible, as they have remained consistent over time and are corroborated by the Veteran's medical treatment of record. As such, the Board finds that the Veteran's migraine headaches meet the rating criteria for a 50 percent rating, as his migraines may be characterized as completely prostrating and prolonged attacks occur very frequently (at least once per week) and are productive of severe economic inadaptability. The Board notes that a 50 percent disability rating is the highest schedular rating available pursuant to Diagnostic Code 8100. The above determination is based upon consideration of applicable rating provisions. It should also be noted that there is no showing that the Veteran's migraine headaches have reflected so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis. See 38 C.F.R. § 3.321(b) (1). In this case, the Board finds that the rating criteria contemplate the Veteran's migraine headache disability picture, as the Veteran's service-connected migraine headaches are productive of characteristically prostrating attacks and economic inadaptability, manifestations that are contemplated adequately by the applicable schedular criteria. Without sufficient evidence reflecting that the Veteran's disability picture is not contemplated by the rating schedule, referral for a determination of whether any disability on appeal requires the assignment of an extraschedular rating is not warranted. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). In light of the foregoing, and with resolution of all reasonable doubt in the Veteran's favor, the Board finds that the criteria for assignment of a 50 percent rating-the maximum rating assignable for the Veteran's migraine headaches under Diagnostic Code 8100-is warranted. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A 50 percent rating for migraine headaches is granted, subject to the law and regulations governing the payment of monetary benefits. An effective date prior to October 23, 2008, for the award of service connection and the assignment of a 10 percent rating for residuals of a TBI is denied. REMAND In Rice v. Shinseki, 22 Vet. App. 447 (2009), the U.S. Court of Appeals for Veterans Claims held that a claim for a total disability rating due to individual unemployability (TDIU) is part of an increased rating claim when such claim is reasonably raised by the record. In this case, the Veteran has not formally filed a claim of entitlement to a TDIU. However, the Veteran has alleged that his service-connected migraine headaches preclude him from obtaining or maintaining gainful employment. As such, the TDIU claim is part and parcel of the increased rating claim on appeal. The Board observes that the Veteran is service-connected for migraine headaches and TBI residuals. Prior to May 1, 2013, the Veteran's migraine headaches are rated as 50 percent disabling and TBI residuals are rated as 10 percent disabling for a combined disability rating of 60 percent. Since these disabilities result from the same common etiology, they are considered one disability and the Veteran meets the minimum rating requirement of 38 C.F.R. § 4.16(a) for consideration of a TDIU prior to May 1, 2013. However, effective May 1, 2013, the rating for TBI residuals has been reduced from 10 percent to 0 percent rating for a combined disability rating of 50 percent. Accordingly, as the Veteran does not have a combined rating of 60 percent or more from May 1, 2013, his combined rating for his service-connected disabilities does not meet the minimum schedular criteria for a TDIU for the period since May 1, 2013 and VA must consider whether the Veteran may be entitled to a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b). Given the evidence of record demonstrating that the Veteran may be unemployable as a result of his service-connected migraine headaches, the Board has little choice but to remand this matter to afford the Veteran a VA employability examination. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Send the Veteran a notice letter pertaining to a claim for entitlement to TDIU, to include a description of the evidence necessary to substantiate a claim for TDIU, the Veteran's duties to substantiate the record, and VA's duties. Allow for a reasonable period to respond. The RO should assist in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 2. After the development requested has been completed, schedule the Veteran for an appropriate VA employability examination. The claims folder should be reviewed and that review should be indicated in the VA examination report. The rationale for all opinions should be provided. Specifically, the examiner is asked to render an opinion as to whether it is at least as likely as not (fifty percent or greater) that the Veteran's service-connected migraine headaches and TBI residuals alone, without reference to any nonservice-connected disabilities, prevent him from maintaining substantially gainful employment. If the examiner determines that he or she cannot provide an opinion on the issue at hand without resorting to speculation, the reviewer should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, the examiner should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted or whether additional information could be obtained that would lead to a conclusive opinion. 3. Thereafter, take adjudicatory action on the Veteran's TDIU claim, including consideration of Rice and the potential applicability of 38 U.S.C.A. § 1114 and whether referral of the TDIU claim for extraschedular consideration is warranted for the period since May 1, 2013. If the benefits sought remains denied, furnish a supplemental statement of the case (SSOC) to the Veteran and his representative and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The SSOC should contain, among other things, a summary and discussion of the relevant evidence received since the SSOC was issued in April 2013. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs