Citation Nr: 1329322 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 05-41 118 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an initial rating higher than 30 percent for migraine headaches with dizziness. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from August 1978 to August 2002. She appealed to the Board of Veterans' Appeals (Board/BVA) from a November 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, granted her claim of entitlement to service connection for migraine headaches with dizziness and assigned an initial 30 percent rating for this disability retroactively effective from October 28, 2003. [The effective date since has been changed to October 6, 2003, so slightly earlier.] She wants a higher initial rating. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (When a Veteran appeals the initial rating for a disability, VA must consider whether to "stage" the rating - meaning assign different ratings at different times since the effective date of the award if there have been occasions when the disability has been more severe than at others.). In June 2009, the Veteran testified at a hearing at the Board's offices in Washington, DC, before a Veterans Law Judge (VLJ) - which is often and more commonly referred to as a Central Office (CO) hearing. The Board subsequently in August 2009 remanded this and other claims that, at the time, also were on appeal, for further development. In November 2010 and March 2012, the Board again remanded this and the other claims for still further development. In a February 2013 letter, the Board notified the Veteran that the VLJ who had presided over her June 2009 CO hearing was no longer employed by the Board, since having retired. The Board indicated that, by law, the Veteran must be given the opportunity for another hearing before a different VLJ that would ultimately decide this appeal. In her response later in February 2013, she indicated that she did not want another hearing, preferring instead to have her appeal considered on the existing record. The Board issued a decision in May 2013 denying the other claims that also were on appeal, for higher ratings for the cervical spondylosis. But the Board, instead, again remanded this claim for a higher initial rating for the migraines with dizziness for still further development, including for another VA Compensation and Pension examination so the examiner could reassess the severity of this disability and address all components of it. FINDINGS OF FACT 1. Since October 6, 2003, the effective date of the grant of service connection for the Veteran's migraine headaches with dizziness, she has had the maximum schedular rating of 30 percent under Diagnostic Code 6204 for a peripheral vestibular disorder. Since then, while Meniere's disease has been confirmed, it is still best categorized as a peripheral vestibular disorder for rating purposes absent indication of hearing loss. 2. Since June 14, 2013, the Veteran has experienced migraine headaches with characteristic prostrating attacks occurring on average once a month. CONCLUSIONS OF LAW 1. The criteria are not met for an initial rating higher than 30 percent for this disability at issue - including when considering it as vertigo associated with Meniere's disease. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10; 4.87, Diagnostic Code 6204 (2013). 2. But resolving all reasonable doubt in the Veteran's favor, the criteria are met for a separate 30 percent rating for migraines effective June 14, 2013. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.14; 4.124a, Diagnostic Code 8100 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist the Claimant The Veterans Claims Assistance Act (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2013), prescribes several requirements as to VA's duties to notify and assist a claimant with the development of a claim for compensation or other benefits. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2013). Upon receipt of a complete or substantially complete application, VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will obtain on the claimant's behalf. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). A regulatory amendment effective for claims, as here, pending as of or filed after May 30, 2008, removed the so-called fourth (4) requirement that VA specifically request the claimant to provide any evidence in his or her possession pertaining to the claim. 38 CFR 3.159(b)(1) (2013). Ideally, this notice should precede the initial adjudication of the claim. See Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004) (Pelegrini II). If, however, for whatever reason it did not, or the notice provided was inadequate or incomplete, this timing error can be effectively "cured" by providing any necessary VCAA notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC) - such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). VCAA notices errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis. And as the pleading party attacking the agency's decision, the Veteran, not VA, has this burden of proof of not only establishing error, but, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of the claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Consider also that, in regards to this particular claim at issue for a higher initial rating for the disability that was determined to be service connected in the decision that was appealed, VA does not have to provide VCAA notice in this circumstance concerning the "downstream" disability rating and effective date elements of the claim. This is because the initial intended purpose of the notice has been served inasmuch as the claim as it arose in its initial context has been granted, so substantiated. See Goodwin v. Peake, 22 Vet. App. 128 (2008). See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) and VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). According to the holding in Goodwin and its progeny, instead of issuing an additional VCAA notice letter in this situation concerning the "downstream" disability rating and effective date elements of the claim, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue an SOC if the disagreement is not resolved, and this occurred in this particular instance. The RO and Appeals Management Center (AMC) together have provided the Veteran the required SOC, also SSOCs, citing the applicable statutes and regulations governing the assignment of disability ratings - including initial ratings - and containing discussion of the reasons or bases for not assigning a higher initial rating. So she has received all required notice concerning her initial-rating claim. VA also has complied with the duty to assist the Veteran with her claim by obtaining her VA outpatient treatment records and records of post-service treatment from military medical facilities. As well, she has undergone numerous VA Compensation and Pension examinations assessing and reassessing the severity of her disability. See 38 C.F.R. §4.1 (for purpose of application of the rating schedule accurate and fully descriptive medical examinations are required with emphasis on the limitation of activity imposed by the disabling condition). Indeed, in furtherance of this claim, she also provided copies of private treatment records and personal statements. She additionally testified at a hearing before the Board and, as mentioned, declined to have an additional Board hearing. There is no indication of any further available evidence or information that has not been obtained and that needs to be. In sum, the record reflects that the facts pertinent to the claim being decided have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. The record has been fully developed," and it is difficult to discern what additional guidance VA could provide the appellant regarding what further evidence she should submit to substantiate her claim. Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). Accordingly, the Board is proceeding with its adjudication of her claim. Background and Analysis Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2013); 38 C.F.R. §\ 4.1 (2013). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3. Generally, the degrees of disability specified in the rating schedule are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Where, as here, the Veteran appeals the rating initially assigned for the disability, after having established her entitlement to service connection for it, VA must consider whether to "stage" the rating for the disability. In Fenderson, the Court recognized a distinction between a Veteran's dissatisfaction with an initial rating assigned following a grant of service connection and a claim for an increased rating of a service-connected disability. As here, in the case of the assignment of an initial rating for a disability following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as a "staged" rating. See Fenderson, at 125-26. This practice since has been extended even to cases that do not involve initial ratings, rather, also established ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Presently, the Veteran's service-connected condition of migraine headaches with dizziness is evaluated as 30-percent disabling under the provisions for peripheral vestibular disorders. 38 C.F.R. § 4.87, Diagnostic Code 6204. Under 38 C.F.R. § 4.87, Diagnostic Code 6204, for rating peripheral vestibular disorders, a 10 percent rating is assignable for occasional dizziness. A 30 percent rating is to be assigned when there is dizziness and occasional staggering. A note in this code indicates that objective findings supporting the diagnosis of vestibular disequilibrium are required before a compensable evaluation can be assigned under this code. Hearing impairment or suppuration shall be separately rated and combined. Also, under Diagnostic Code 6205 that pertains to Meniere's syndrome, a 30 percent rating is warranted for hearing impairment with vertigo less than once a month, with or without tinnitus; a 60 percent rating is warranted for hearing impairment with attacks of vertigo and cerebellar gait occurring from one to four times a month, with or without tinnitus; and a 100 percent rating is warranted for hearing impairment with attacks of vertigo and cerebellar gait occurring more than once weekly, with or without tinnitus. 38 C.F.R. § 4.87, Diagnostic Code 6205. A note in this code for Meniere's syndrome states that the disability is to be rated either under these criteria or by separately rating vertigo (as a peripheral vestibular disorder), hearing impairment, and tinnitus, whichever method results in a higher overall rating, with the provision that a rating for hearing impairment, tinnitus, or vertigo is not to be combined with a rating under Diagnostic Code 6205. The Board has further considered the possibility of separate compensable disability ratings for the migraines and dizziness components of service-connected disability. The Veteran's representative also has specifically requested consideration of this in his written arguments to the Board. Under 38 C.F.R. § 4.124a, Diagnostic Code 8100, migraines with infrequent attacks warrant a 0 percent (i.e., noncompensable) rating. Migraines with characteristic prostrating attacks averaging one in two months over the last several months warrant a 10 percent rating. Migraines with characteristic prostrating attacks occurring on an average once a month over the last several months warrant a 30 percent rating. Migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a 50 percent rating. The record reflects that the Veteran underwent a VA general medical examination in April 2004, at which time she reported getting sharp, throbbing headaches associated with nausea. There was no increased light or sound sensitivity. Flare-ups occurred once every two weeks and lasted 14 to 16 hours. She had taken Tylenol and Inderal. She further reported having migraines and vertigo since 1982, sometimes with tunnel vision, with an attack occurring every two to three days and that could last for a number of hours. A physical examination was performed. The diagnostic summary included migraine headaches with subjective factors of pain and dizziness, and objective factors no findings. As to the dizziness, the finding was that it was part and parcel of the migraine headaches. During an August 2005 VA examination by an otolaryngologist (i.e., ear, nose & throat (ENT) specialist), the Veteran reported having dizzy spells since the mid-1980s, which now occurred two to four times a week. At times these were very severe and caused extreme tiredness and weakness. She described her dizziness as generalized unsteadiness and room spinning with spells that lasted from minutes to hours. In May of that year, she had sustained a spell that was severe, with profuse sweating, weakness, trembling and vomiting, and had to be transported by ambulance to the emergency room, where she was administered IV fluids. She generally had difficulty balancing, and had run into walls on occasion and gotten black and blue marks. The functional impairment was that she had to stop everything she was doing until the spell cleared up. The condition resulted in eight times lost from work per year. She reported tinnitus whenever she got dizzy spells. It would begin with buildup of pressure in the ears. A head, nose and throat examination was completed. For the Veteran's claimed condition of vertigo, the diagnosis was "migraine variant." The subjective factors were dizziness. The objective factors were attacks of vertigo. Thereafter, in her June 2008 lay witness statement, the Veteran indicated that she had experienced dizzy spells and headaches for years, and had quit seeking relief because the medications prescribed left her feeling even dizzier and very lethargic. Over the previous year or two, headaches had awakened her during the night. She now used over- the-counter medication on a weekly and sometimes daily basis for headaches. According to the Veteran, she had used more sick days from work in the previous year and a half than the previous two years combined. She indicated she had used 112 hours of sick leave in 2007, and 48 hours already in the first five months of 2008. She had attached to the statement copies of her time and attendance report from 2007 to the present. Records of post-service treatment at a military medical facility indicates that on evaluation in July 2008, the Veteran reported that recently she had been having three to four headaches per week, and had been awakened by these headaches infrequently as well. Headaches were described as a dull constant ache, sometimes bifrontal, other times just on top. She denied photophobia or phonophobia. There was occasional nausea, and sometimes dizziness associated with headaches. Headaches were lasting anywhere from a few hours to a couple days. Upon VA examination of August 2008, the Veteran reported that headaches involved mostly dull global pain, sometimes throbbing, sometimes sharp accompanied by dizziness. When headaches occurred, she was able to go to work but required medication. She experienced headaches on the average of five times per week and they lasted for 48 hours. The symptoms were often visual distortions, nausea, dizziness for days in a row, extreme fatigue, and buzzing in the ears. The symptoms described occurred as often as five days a week with each occurrence lasting for hours to days. The ability to perform daily functions during flare-ups was usually not affected, if medications could be taken. Headaches occasionally woke the Veteran up at night. Dizziness episodes lasted about 24 to 72 hours. She reported as functional impairment that vision would be compromised, and if at work, she would work at a markedly decreased capacity, and if at home would rely on bed rest. The diagnosis was "migraines with dizziness." During VA neurological examination in December 2009, the Veteran stated that with respect to headaches, she had about two or three mild headaches per week that were not incapacitating, but that she did have incapacitating headaches about three times per year, during which she would either not go to work or go home only because of these headaches. They were somewhat atypical of migraines and were not associated with photophobia or sensitivity to loud noise. They might wake her up at night and there would be a very sharp and severe pain in the center of the head. The Veteran had brief episodes of severe unsteadiness that were preceded by scintillations and visual distortions that would result in problems with general lightheadedness or dizziness. She stated that she had some problem with word- finding during these times and problems with balance, and that she had 10 such episodes per year and would try not to work during these episodes. She also had other days during the year when she was missing work because of medical appointments related to her problems. Following objective physical examination and interview of the Veteran (the claims file was not then available for review), the VA examiner expressed the finding that "I tried to outline both the severe episodes of dizziness and unsteadiness and also the severe episodes of headaches but to try to say that the former is a manifestation of the latter[,] that is the unsteadiness, dizziness and lightheadedness is a variant of migraine and at this point with the information that we had on hand[,] would be merely speculative. Please reschedule this patient... when the patient will have completed [an] electronystagmogram for balance studies." In an April 2010 addendum opinion, the December 2009 examiner indicated as follows, after having reviewed the claims file: Review of records now indicates that on December 1, 2009, that the patient had a normal ENG, there was no evidence of labyrinthitis dysfunction at that time. Based on review of all the elements within the C-file and her treatment records, the patient has had exhaustive testing and we do not establish a diagnosis that caused her problems of dizziness and imbalance. Perhaps with continued ongoing treatment, the cause of these symptoms will become apparent and once this happens then a diagnosis can be established and rated. The patient has a history of hypoglycemia but normal balance testing and normal EEG. After exhaustive evaluation any attempt at this time to establish a medical diagnosis as cause for imbalance more likely than not would merely be speculative. The Veteran underwent an April 2012 VA audiological examination, following which the examiner indicated that on review of the claims file and evaluation of the Veteran there were "no objective findings to support the diagnosis of vestibular disequilibrium." It was noted in this regard that ENT evaluation of October 2009 was normal, and ENG study of December 2009 also was normal, as was subsequent neurological evaluation. VA outpatient records include a March 2012 clinical record which observed that the Veteran's typical headache involved waking up in the middle of the night with a headache, central pain, and eyes sensitive to light sometimes. The headaches came on more frequently after bad dizzy spells. The Veteran underwent VA examination again, intended specifically for headaches, in June 2013. She then reported having episodic dizziness, characterized as "being on a moving sidewalk," which caused severe gait instability and falls. She also noted constant tinnitus. These episodes occurred frequently, about every other day, but had decreased to about eight days per month since beginning Depakote. She further noted the onset of headaches about 15-20 years ago. Headaches were bitemporal, with severe steady pain, and could be associated with nausea, blurred vision, photophobia, and phonophobia. Headaches occurred about twice per week, and typically lasted two days. Headaches were usually incapacitating, and she estimated she had lost at least 12 days from work in the previous year due to headaches. Depakote was used daily for headache prophylaxis, and aspirin or ibuprofen were taken as needed for headache pain. The Veteran described her symptoms as constant head pain, pain on both sides of the head, pain worsening with physical activity, and bitemporal. The Veteran also had non-headache symptoms associated with the headaches of nausea, sensitivity to light, sensitivity to sound, and changes in vision. According to the VA examiner's findings, the Veteran did have characteristic prostrating attacks of migraine headache pain, more frequently than once a month. The Veteran was also noted to have very frequent prostrating and prolonged attacks of migraine headache pain. A brain MRI was normal, as was an EEG study. The headache condition was considered to impact the Veteran's ability to work. She estimated that she had missed at least one day from work each month in the previous year, often more than one day per month. The VA examiner then expressed the following opinion regarding the Veteran's pathology underlying the symptom of dizziness: The Veteran states that during episodes of "dizziness," she is very unsteady on her feet, staggers, and has fallen on numerous occasions. It is more likely than not that her dizziness condition is a manifestation of Meniere's disease due to the episodic nature of her complaints, and the accompanying tinnitus. There are no clear objective findings supporting a diagnosis of seizure disorder. However, it is impossible to rule out the possibility of seizure disorder, even with a normal EEG, since normal routine EEG testing does not completely rule out the possibility of seizure disorder. On further VA examination in June 2013, specifically for ear conditions, the examiner found as an initial matter that the Veteran did not now have nor had ever been diagnosed with an ear or peripheral vestibular condition. The Veteran then stated that she would get more of an imbalance type of symptoms during walking which had been going on for the last 20 years or so. Then she was diagnosed with migraines and placed on medication. According to the VA examiner, her dizziness was either not a true vertigo or it was not related to inner ear pathology. She was not on any medication for dizziness. The Veteran's treatment plan did not include taking medication for any diagnosed condition. It was further indicated that the Veteran did not have any findings, signs or symptoms attributable to Meniere's syndrome, a peripheral vestibular condition or similar condition. There were no symptoms attributable to chronic ear infection, inflammation, cholesteatoma or similar condition. A physical examination was normal. The VA examiner then commented: "There are no objective findings supporting a diagnosis of vestibular disorder. [There are] no objective findings supporting diagnosis of Meniere's disease. The Veteran does not have true dizziness. It is more of an imbalance. The Veteran's so[-]called dizziness is not a symptom of any other disability (other than a migraine). There is no need for a medical opinion as dizziness (if at all) is not a diagnosis, only a symptom." Having reviewed the medical evidence on point, and in light of the applicable rating criteria, the Board sees fit to grant separate disability ratings for the migraine and vertigo components of service-connected disability instead of a single 30 percent rating, thereby awarding an increased evaluation overall for this condition. In so finding, the Board makes two essential factual determinations - (1) that the Veteran has sufficient symptomatology of the migraine headaches themselves as to meet the requirements for a compensable evaluation, as of the most recent VA Compensation and Pension examination; and (2) that the vertigo she has demonstrated is the direct result of a distinct and objectively diagnosed pathology, rather than being completely symptomatic of the headaches. These determinations warrant the partial grant of the Veteran's increased disability rating claim. Regarding the first aforementioned factual finding, whereas previously the RO did not recognize a separate evaluation for headaches, the case circumstances presently substantiate this outcome. As indicated pursuant to the applicable rating criteria under 38 C.F.R. § 4.124a, Diagnostic Code 8100, the assignment of any compensable rating for migraines depends on the relative frequency and severity of characteristic prostrating attacks. Whereas the Veteran has experienced headache symptomatology all along, only recently has this been definitively documented to involve actual prostrating attacks. Earlier descriptions involved pain, frequency of once a week or more, and intermittent limitation of vision. As recently as December 2009, the Veteran had about two or three mild headaches per week that were not incapacitating, and incapacitating headaches occurred about three times per year. It is as of the June 2013 VA examination that the Veteran clearly had migraines with characteristic prostrating attacks occurring on an average once a month over the previous several months, which directly corresponds to a 30 percent rating under Diagnostic Code 8100. Hence, the criteria for a 30 percent rating for headaches were met as of June 14, 2013 (the date of examination). As to potential assignment of the highest 50 percent evaluation under Diagnostic Code 8100, this does not apply. The Veteran may have been noted to experience "very frequent completely prostrating" headaches, however, she did not experience "severe economic inadaptability" inasmuch as fortunately she largely retained her working capacity, missing on average no more than a few days a month from her job. Overall, the criteria for a 30 percent rating based on headaches were met as of June 14, 2013. The preceding notwithstanding, the evidence substantiating a 30 percent rating for migraine headaches does not automatically warrant a separate compensable evaluation, given that the original 30 percent evaluation for service- connected disability based on vertigo (when headaches were rated together with this manifestation of dizziness) must also have its own compelling grounding in the VA rating schedule. If the original grant of 30 percent was unsupported, the Board could not add a separate rating for additional symptomatology from the same service-connected disability. Without a clearly diagnosed independent pathology for vertigo, there is no basis for recovery, given that VA legally cannot award separate disability ratings for the same "overlapping" symptomatology. See 38 C.F.R. § 41.14 (providing that as to assignment of separate ratings, under VA's "anti-pyramiding rule," the evaluation of the same manifestation under different diagnoses is to be avoided). See also Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Board does not question the RO's assigned 30 percent evaluation in effect for headaches with dizziness (only on the basis of vertigo) all along - that is a settled matter. However, there is a legitimate inquiry into whether the Veteran has an actual, concrete, diagnosable disability of vertigo, or whether instead, there is merely some dizziness during headache episodes that is not its own standalone condition. Indeed, Diagnostic Code 6204 for rating peripheral vestibular disorders also imposes a similar requirement, necessitating "objective findings" before dizziness is compensable. Based on review of the complete evidence, however, and with application of VA's benefit-of-the-doubt doctrine, the Board will accept that the Veteran has vertigo as the consequence of Meniere's disease, a distinct identifiable and objective pathology. The opinion of the June 2013 VA neurological examiner substantiates this, noting the contemporaneous presence of tinnitus, indicating Meniere's disease as the disorder. While there are numerous contrary opinions of record that discount such a diagnosis (considering dizziness as symptomatic of intermittent headache exacerbations), resolving all reasonable doubt in the Veteran's favor on this material issue, Meniere's disease is accepted as the proper clinical diagnosis. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, ,4.3. The Board notes also the Veteran's repeated subjective reports that she can experience the dizziness episodes without a migraine, suggesting that the two conditions are not always associated. There is enough reason to make the next key factual determination in this case, that the Veteran has Meniere's disease, and this supports the existing 30 percent rating since the October 6, 2003 effective date of service connection. The Board further observes here that, while literally Meniere's disease is rated under Diagnostic Code 6205, the Veteran does not have any cognizable hearing loss (for VA purposes under 38 C.F.R. § 3.385), and therefore the appropriate rating code remains Diagnostic 6204 for peripheral vestibular disorders, under which the maximum schedular evaluation is 30 percent. Consequently, the Board may award the 30 percent separate rating for migraine headaches effective June 14, 2013, without concern for awarding dual ratings for overlapping symptomatology under 38 C.F.R. § 4.14, given that the Veteran has been found to have the distinct condition of Meniere's disease. Whether headaches may have played a role in causing Meniere's disease, or even are sometimes associated with dizziness episodes, is immaterial to this case. It is determinative that there is sufficient competent evidence of objective pathology, as well as distinct symptomatology underlying each 30 percent disability rating. Apart from the VA rating schedule, the potential application of other provisions of Title 38 of the Code of Federal Regulations also have been considered, including 38 C.F.R. § 3.321(b)(1), which provides procedures for assignment of an extra-schedular evaluation. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors that would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). The question of an extra-schedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). And although the Board may not assign an extra-schedular rating in the first instance, it must specifically adjudicate whether to refer a case for extra-schedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). In Thun v. Peake, 22 Vet. App. 211 (2008), the Court articulated a three-step inquiry for determining whether a Veteran is entitled to an extra-schedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation is found inadequate because it does not contemplate the claimant's level of disability and symptomatology, the Board must determine whether the claimant's disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. In this case, there initially is no basis to find that the Veteran's service-connected migraine headaches and vertigo (dizziness) present such an exceptional disability picture that the applicable schedular criteria are inadequate, particularly as the rating criteria are thorough, and she does not manifest or describe symptomatology outside of those criteria. The rating criteria premised upon severity and frequency of headaches, as well as extent of any severe economic inadaptability, fairly encompasses the severity of this condition. To the extent she additionally experiences the condition of Meniere's disease or its effects, primarily manifested in the way of vertigo or imbalance or dizziness of sorts, this is the basis for the award of the separate rating in this decision, so she is receiving additional compensation for this. Thus, the Board cannot conclude her condition is consistent with an exceptional disability picture as to render the schedular rating criteria inadequate. The first stage of the standard for determining availability of an extra- schedular rating not having been met, the potential application of the next two steps becomes a moot issue. In the absence of the evidence of such factors, the Board is not required to remand this case to the RO for the procedural actions outlined in § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For these reasons and bases, the Board is granting the claim for an increased rating in part, awarding a separate rating for migraine headaches of 30 percent as of June 14, 2013. This determination takes into full account the potential availability of a "staged" rating based upon incremental increases in severity of the service-connected disability during the pendency of this claim under review. And the fact that she is receiving this separate rating, so additional compensation, as of that date is tantamount to "staging" the rating for her disability. See Fenderson, 12 Vet. App. at 125-26. The preponderance of the evidence is against any more favorable outcome. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER The claim for an initial rating higher than 30 percent for this disability - including when considering it as vertigo associated with Meniere's disease - is denied. However, the criteria are met for a separate 30 percent rating for the migraines from June 14, 2013, onwards. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs