Citation Nr: 1331130 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 06-16 444 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) for posttraumatic headaches. REPRESENTATION Appellant represented by: Virginia Girard-Brady, Esq. WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from March 1952 to April 1956. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, which granted a 30 percent rating for service-connected posttraumatic headaches effective April 12, 2005. The Veteran perfected an appeal and presented testimony at a personal hearing before the undersigned Veterans Law Judge in March 2007. A transcript is of record. In September 2008, the Board denied a disability rating in excess of 30 percent for the Veteran's service-connected posttraumatic headaches. The Veteran appealed the Board's September 2008 decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2010 memorandum decision, the Court affirmed the part of the Board's September 2008 decision denying a schedular rating in excess of 30 percent for the service-connected posttraumatic headaches and remanded the issue of entitlement to an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) for posttraumatic headaches back to the Board for further action consistent with the memorandum decision. In a February 2010 decision, the Board determined that referral of the extraschedular claim to the Director of the Compensation and Pension (C&P) Service was not warranted. The Veteran again appealed to the Court. In August 2011, the Court granted a Joint Motion for Remand (Joint Motion), vacated the Board's February 2010 decision, and remanded the issue to the Board for action in compliance with the Joint Motion. The claim was thereafter remanded by the Board in January 2012, December 2012, and April 2013. It has been returned to the Board for appellate review. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. In the April 2013 remand, the Board also remanded claims for entitlement to an evaluation in excess of 50 percent for service connected anxiety, not otherwise specified, with depression; entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of a punctured lung; and entitlement to an effective date prior to October 27, 2010, for the grant of a total disability rating based upon individual unemployability (TDIU), for the issuance of a statement of the case. Although it appears that the Veteran perfected an appeal of these issues prior to the April 2013 remand, they had not been certified to the Board at the time of the April 2013 remand, and they remain uncertified. In addition to the lack of certification, it appears that the RO continues to take action on some of those claims. See May 2013 rating decision located in Virtual VA. Also in its April 2013 remand, the Board referred a claim for entitlement to an effective date earlier than October 27, 2010, for the 30 percent rating assigned for service-connected headaches, to include whether the challenge was timely. Review of the claims folder and Virtual VA reveals that this issue has still not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is again referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The available schedular evaluation adequately contemplates the Veteran's level of disability and symptomatology associated with the service-connected posttraumatic headaches. 2. The Veteran has given irreconcilable histories as to when he stopped working, such that the Board does not find him credible. 3. There is no evidence of frequent periods of hospitalization for the service-connected posttraumatic headaches. 4. The Director of the C&P Service has twice determined that the Veteran's posttraumatic headaches do not present an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. CONCLUSION OF LAW The criteria for assignment of an extraschedular rating for posttraumatic headaches have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321(b) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's duties to notify and assist Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence necessary to substantiate the claim and the division of responsibilities in obtaining evidence. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). For an increased-compensation claim, section 5103(a) requires, at a minimum, that the Secretary (1) notify the claimant that to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; (2) provide examples of the types of medical and lay evidence that may be obtained or requested; (3) and further notify the claimant that "should an increase in disability be found, a disability rating will be determined by applying relevant [DC's]," and that the range of disability applied may be between 0% and 100%" based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment." Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The RO provided the appellant pre-adjudication notice pertaining to his April 2005 claim for an increased rating for posttraumatic headaches by a letter dated in May 2005, and additional notice by a March 2006 letter. The claim was readjudicated in an April 2006 statement of the case. Mayfield, 444 F.3d at 1333. The Board also notes that its September 2008 determination that a rating in excess of 30 percent was not warranted for posttraumatic headaches was upheld by the Court. Notice specific to the extraschedular claim was provided to the Veteran in a February 2012 letter, as instructed in the Board's January 2012 remand; the claim was readjudicated in supplemental statements of the case dated September 2012, January 2013 and July 2013. Accordingly, the duty to notify has been fulfilled. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (finding that the issuance of a fully compliant notification followed by readjudication of the claim, such as an SSOC, is sufficient to cure a timing defect). VA has obtained service treatment records, assisted the Veteran in obtaining evidence, to include private treatment records, afforded the Veteran appropriate examinations to determine the severity of his disability, and afforded the Veteran the opportunity to give testimony before the Board. The issue of whether the Veteran was entitled to an extraschedular rating for his posttraumatic headaches was also referred to the Director of C&P, as instructed in the Board's January 2012 and April 2013 remands. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. The RO substantially complied with the Board's January 2012, December 2012, and April 2013 remands concerning this claim. See D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board acknowledges the assertion raised by the Veteran's attorney in April 2013 that the January 2013 VA examination report is inadequate because the examiner reported that the Veteran never applied for another job since 1981 and that the headaches were not the reason the Veteran stopped working in 1981. The Veteran's attorney stated that the Veteran, "contrary to the VA examiner's bald assertion, indicated that he stopped working in 2005 explicitly because of his headaches." The Veteran's attorney also asserted that "without a review of the claims file, an opinion as to etiology of an underlying disorder can be no better than the facts alleged by the veteran" and that the Board had ordered this most recent examination in December 2012 in part to "elicit from the Veteran his employment history and current employment status." The Board disagrees that this examination is inadequate. The examiner clearly based the report and subsequent opinion on the Veteran's history as reported at the time of that examination. It is unclear to the Board why, at the time of the January 2013 examination, the Veteran opted against reporting the history he had begun reporting sometime in 2005, namely that he had stopped working for a farmer sometime in the mid-2000s as a result of his headaches. What is clear, however, is that the Veteran gave a certain history in January 2013 that was transcribed by the examiner. Furthermore, the examiner wholly complied with the Board's December 2012 remand instructions by eliciting from the Veteran his employment history. It was the Veteran's duty thereafter to credibly report his employment history. Given the foregoing, the January 2013 VA examination report is adequate. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Extraschedular analysis The rating schedule is generally deemed adequate to rate a disability. 38 C.F.R. § 3.321(a) (2013). When either a claimant or the evidence of record suggests that a schedular rating may be inadequate, the Board must specifically adjudicate the issue of whether referral for an extraschedular rating is warranted. 38 C.F.R. § 3.321(b); see Colayong v. West, 12 Vet. App. 524, 536 (1999). In exceptional cases where schedular evaluations are found to be inadequate, the RO may refer a claim to the Director of C&P Service for consideration of an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. See 38 C.F.R. § 3.321(b)(1). The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. Id. There is a three-step analysis for determining whether an extra-schedular evaluation is appropriate. Thun v. Peake, 22 Vet. App. 111, 115 (2008). First, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id. at 115-16; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the C&P Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. at 116. Although the Board is precluded from initially assigning an extraschedular rating, there is no restriction on the Board's ability to review the adjudication of an extraschedular rating once the Director of C&P determines that an extraschedular rating is not warranted. Anderson v. Shinseki, 22 Vet. App. 423, 427-8 (2009); see also Floyd v. Brown, 9 Vet. App. 88, 96-97 (stating that once Board properly refers an extraschedular rating issue to Director of C&P for review, appellant may "continue[ ] to appeal the extra-schedular rating aspect of this claim"); see also 38 U.S.C.A. §§ 511(a), 7104(a) ("All questions in a matter...subject to decision by the Secretary shall be subject to one review on appeal to the...Board."). As noted in the Introduction, the Board denied a rating in excess of service-connected posttraumatic headaches in September 2008. The Veteran appealed that decision to the Court. In a February 2010 memorandum decision, the Court determined that there was no error in the Board's application of the schedular criteria for evaluating posttraumatic headaches such that affirmance of that portion of the September 2008 Board decision was warranted. The Court determined, however, that it was dissatisfied with the Board's explanation of its consideration of referral for an extraschedular rating under 38 C.F.R. § 3.321(b)(1). The Court set aside the Board's determination as to referral for an extraschedular rating and remanded that issue for readjudication. The Board notes at this juncture that the Court's February 2010 memorandum decision determined that the Board impliedly found that the schedular ratings were adequate to compensate the Veteran for the disability caused by his headaches, but that its explanation for this assessment was either totally lacking or erroneous. The Court pointed out that the Board's statement that there is "no evidence that he is currently unable to work at any job because of his [headaches]" was simply wrong because it was uncontroverted in the record that the Veteran had recently had to cease working for a local farmer, which he had done for 17 years, because the vibration of the machinery brought on the headaches. The Court also noted that the uncontroverted evidence also tended to establish that the Veteran suffers from migraine headaches every day and frequently must resort to a darkened, totally quiet room in order to alleviate them; and that his headaches are triggered by noise, precluding him from being among his grandchildren, attending a wedding reception, or entering a grocery store with his wife. His headaches were also triggered by vibration from tractors, farm equipment, and lawn mowers. The Court pointed out that the Board neither questioned the credibility of the Veteran's statements of his condition nor explained why the pattern of disability they describe does not constitute "marked interference with employment." The Court noted that in order to obtain extraschedular evaluation, a claimant must submit evidence that the disability affects employability in ways not contemplated by the rating schedule and that the Board did not explain why it concluded that the Veteran had not done so. The Court also determined that the Board may not summarily conclude that the Veteran is entitled to no compensation for the earning capacity impairment of his condition that may exceed 30 percent disability. See February 2010 memorandum decision. The issue came before the Board again in September 2010, at which time it determined that referral of the claim to the Director of the C&P Service was not warranted. The Veteran again appealed to the Court. In August 2011, the Court granted a Joint Motion, vacated the Board's February 2010 decision, and remanded the issue to the Board for action in compliance with the Joint Motion. The Joint Motion determined that the Board did not provide an adequate statement of reasons or bases for finding that referral for extraschedular consideration was unwarranted. More specifically, the Joint Motion determined that the Board did not provide an adequate explanation with regards to whether Appellant's disability satisfies the "threshold inquiry" of whether the schedular rating is adequate, as explained in Thun. The Board's explanation was deemed inadequate because it did not explain how it determined that Appellant's symptomatology was contemplated by the rating criteria and it did not explain how moderate to severe headaches occurring one to four times per day with a one to 1.5 hour duration are contemplated by rating criteria for prostrating headaches on the average of one time per month. The Joint Motion determined that remand was warranted for the Board to compare the Veteran's symptoms with the rating criteria and determine whether the rating criteria are adequate. The Joint Motion stipulated that on remand, the Board must re-adjudicate the issue of whether referral for extraschedular consideration was warranted for the service-connected post-traumatic headaches. The Board remanded the claim in January 2012 for referral to the Director of C&P for consideration of whether assignment of an extraschedular rating was warranted under 38 C.F.R. §3.321(b)(1). The claim was remanded again in December 2012 in order to afford the Veteran a contemporaneous VA examination. It was remanded most recently in April 2013 for referral to the Director of C&P. Given the procedural complexity of this case, and the fact that the Veteran has twice appealed the Board's adverse determinations to the Court, the Board will provide a very detailed discussion as to the procedural history as it involves the claim for increased rating for posttraumatic headaches adjudicated in the July 2005 rating decision that is the subject of this appeal, and will provide a detailed discussion as to each step of the Thun analysis. Service connection for posttraumatic headaches was initially established in a May 2003 rating decision that assigned a 10 percent rating pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8045 in conjunction with Diagnostic Code 9304, effective May 23, 2003. Following receipt of the Veteran's claim for increased rating, the RO assigned a 30 percent rating, effective April 12, 2005, pursuant to 38 C.F.R. § 4.124a, Diagnostic Codes 8045 and 8100. See July 2007 rating decision. Prior to an October 23, 2008, amendment, Diagnostic Code 8045 provided that purely subjective complaints such as headache recognized as symptomatic of brain trauma will be rated 10 percent and no more under diagnostic code 9304 and that ratings in excess of 10 percent for brain disease due to trauma under diagnostic code 9304 are not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma. See 38 C.F.R. § 4.124a. The Board notes that in granting the 30 percent evaluation effective April 12, 2005, the RO relied solely on the rating criteria found at 38 C.F.R. § 4.124a, Diagnostic Code 8100, without discussion of the rating criteria found at 38 C.F.R. § 4.124a, Diagnostic Code 8045, and without discussion as to whether there was a diagnosis of multi-infarct dementia associated with brain trauma. Diagnostic Code 8100 provides the rating criteria for migraine headaches. A 30 percent rating is assigned for migraines with characteristic prostrating attacks occurring on an average once a month over last several months. A 50 percent rating is assigned for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The rating criteria do not define "prostrating," and neither has the Court. By way of reference, the Board notes that "prostration" is defined as "utter physical exhaustion or helplessness" in Webster's New World Dictionary of American English, Third College Edition (1986), see p. 1080, and as "extreme exhaustion or powerlessness" in Dorland's Illustrated Medical Dictionary. See 1367 (28th Ed. 1994). There is a voluminous amount of evidence in this case, consisting of both medical records and lay statements submitted by the Veteran and various members of his family. The Board notes that it has reviewed the evidence in its entirety, but will not be discussing all of it with specificity. See Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007) (the Board is presumed to have considered all evidence presented in the record; it is not required to specifically discuss every piece of evidence). At his May 2005 VA neurological examination, the Veteran, while reporting that his headaches were constant, admitted that he was sometimes free of headaches for a few days at a time. He reported that he would get relief usually within one hour of when he took Tylenol. He reported that his headaches were made worse when he was around any loud noise and that he also got headaches when riding a mower or when there was some physical jarring. Sometimes he was awakened at night with headaches. He reported the level of severity of his headaches were predominantly three to four on a scale from one to 10 with 10 being the most severe, and further reported that his worst headaches were at a level five. He denied any associated visual changes or scotomas, numbness or anorexia, nausea, vomiting, vertigo or syncope. The examiner opined that the Veteran's headaches did not seem to bother his activities of daily living, but did seem to have worsened as they were constant and easily aggravated by the identified triggers. The Veteran's VA treatment records, dating from January 2005 to May 2007, also contain various entries as early as August 2005 detailing his relevant complaints and the treatment he has received for his headaches. On several occasions, prescribed medications had to be discontinued because of associated side-effects. A December 2005 progress note shows the Veteran complained of daily moderately severe headaches. He reported at that time that he had had to quit his work operating a tractor because it induced his headaches. The examiner noted that the severity of the Veteran's headaches had not increased, only their frequency. The examiner opined that the Veteran may be having rebound or analgesic withdrawal headaches. A July 2006 neurology consult indicates that the Veteran's history was consistent with analgesic potentiated headaches and the Veteran had agreed to decrease his Tylenol use. However, he failed to report for a neurology follow-up appointment in August 2006 and a September 2006 medicine clinic note indicated that he was not interested in further work-up of his headaches. At a June 2006 VA neurologic examination, the Veteran reported that he continued to experience headaches three to four times per day if he was exposed to noise or "rough ground." He further noted that bending over also caused headaches. He again reported that his headaches lasted one to one and one-half hours after taking Tylenol. He denied any associated nausea or vomiting. The examiner opined that the attacks were not prostrating, noting that ordinary activity was possible. The examiner further opined that the Veteran's headaches had a moderate effect on some of his usual daily activities, such as exercise and chores. The Veteran stated that he had recently (the year prior) been forced to stop helping a farmer he had been helping for the last 17 years because he was unable to deal with the bouncing while riding on machinery, as it caused headaches. During his March 2007 Board hearing, the Veteran testified that he experienced headaches from one to three times a day. He described the headaches as variable in severity, sometimes being relieved by medication and at other times requiring him to lie down in his bedroom for an hour or so after taking medication. He could not go to places where there were loud noises or be with his grandchildren because of loud noises. Neither the Veteran nor his wife reported any impact on employment. In a written statement dated in April 2007, the Veteran's wife reported that he had frequent headaches/migraines that required him to sit in a dark room with no lights and lay down. She also indicated that the Veteran had to stop truck driving and working because of frequent headaches. She indicated that his headaches and migraines were so bad that there were days he could not even get out of bed. She also indicated that when their grandchildren were over, the Veteran was unable to play with them due to headaches and that any noise made him get a headache. During an April 2007 general medical examination, the Veteran reported constant, frontal headaches averaging an eight out of ten and described as achy without associated focal neurological deficits or any neurological symptoms. Headaches reportedly were increased by stress, noise and walking and were decreased by Tylenol, lying down and a dark quiet environment. In terms of employment, the Veteran reported last working in 1984 for a silo company. He indicated he was working as a truck driver at the end of his career with that company. He started in 1971 and worked until 1984. He fractured his leg in 1981 and was ultimately laid off. He tried to get other work but could not. In terms of a normal day, the Veteran reported being able to do activities of daily living independently and watching television before napping for an hour to an hour and one-half every day. He then watched more television, may go into town with his wife, and took out the garbage, fed the birds and occasionally read. The Veteran indicated that he had mowed the lawn up until the prior summer, when the vibration began aggravating his headaches. It was the examiner's opinion that the Veteran was capable of sedentary work. Written statements from the Veteran's daughter and son, dated in July and August 2007, respectively, indicate that his headaches had worsened in recent years, that they were precipitated by his exposure to any noise, and that he generally had to take medication and lie down to alleviate his symptoms. In a July 2007 letter, the Veteran's private treating chiropractor stated that the Veteran continued to suffer with daily headaches that are disabling and continuous, causing a lesser quality of life. The Veteran submitted his handwritten notes for the months of July and August 2007, indicating that he had between three to four headaches every day. He assessed most as moderate in severity; however, he usually had one headache a day that he felt was severe. An August 2007 VA neurological examination shows the Veteran continued to complain of constant frontal headaches, which he described as being an eight in severity, with 10 being the most severe. The headaches were not associated with focal neurological deficits or neurological symptoms. There were no visual disturbances, diplopia, blurred vision, visual field cuts, tunnel vision, difficulty hearing, tinnitus, deficits of smell, dysphagia, or dysarthria. The Veteran denied any associated nausea or vomiting and photosensitivity. He also denied bowel or bladder incontinence and associated weakness or sensory symptoms such as numbness or tingling. The Veteran reported that his headaches were increased primarily by noise and were decreased by going to sleep, or going into a dark quiet environment and lying down, and by using Tylenol. He reported taking six tablets a day. He was independent in daily living activities and ambulatory without an assistive device. In terms of employment, the Veteran reported last working in 1984 as a truck driver, where he worked for two years. He indicated that he stopped because he fractured his left foot in four places in a fall. Prior to that job, he worked with his brother at a silo constructing company unloading staves and cement that were used to construct silos on farms. He did this from 1970 to 1981. He stopped working there because they quit making staves in silos, so he went from that job to the previously-discussed truck driving job. Prior to the silo job, the Veteran farmed from 1957 to 1970, but stopped that because he did not feel at home in the heavily Norwegian populated area where he was working as a farmer. The Veteran denied experiencing flares of headaches during which time he is unable to be independent in activities of daily living. In terms of a normal day, the Veteran reported going downtown for coffee after awakening and then returning home to watch television before eating lunch and then napping for an hour to an hour and a half. After his nap, he watches more television, takes out the garbage, feeds the birds and reads the newspaper. After examining the Veteran, the examiner opined that his headaches, which were constant and fairly severe, did not impair his ability to function the greater percentage of the time unless he was in a very loud environment. The examiner noted that the Veteran's discontinuance of his most recent jobs had nothing to do with his headaches and outlined the Veteran's specific reasons for leaving each position. The examiner also opined that the Veteran might be suffering from rebound analgesic headaches from frequent use of the Tylenol. In a June 2008 letter, the Veteran's private treating chiropractor stated that the Veteran reported that since July 2007, his headaches had become more intense and had disabled him from riding his tractor. Bending forward caused him to almost pass out. The private treating chiropractor stated that the Veteran's headaches were disabling and continuous, causing a lesser quality of life. VA treatment records dated after May 2007 reveal that the Veteran was seen for follow up for recurrent and persistent headaches. In June 2008, he reported recently noticing an increase in both the frequency and severity of the headaches, indicating that they had become severe enough that he was no longer able to work on the farm since the noise and vibration of the tractor was too painful. In July 2008, the Veteran indicated that he had had to quit his job in the last two years because he was working on a farm driving a tractor and the vibration of the tractor and the noise had made his headaches so bad that he was unable to work. The Veteran also reported problems mowing the lawn or shoveling snow because these two activities aggravated his head. He indicated improvement of headaches if he takes Tylenol and stops whatever activity caused them. A February 2011 VA neurological examination shows the Veteran's headaches had gotten progressively worse and were especially bad in the last year. He reported taking Tylenol when the headaches get especially bad. He described the headaches as nearly constant, especially when he gets up in the morning, lasting three quarters of an hour to one hour after taking the Tylenol. The Veteran denied neurologic-related hospitalization or surgery and neurologic neoplasm. Headaches were noted to occur weekly with a usual duration of hours, but they were not prostrating as ordinary activity was possible. The Veteran indicated that "everything bothers me when I have a real bad headache" when asked to report their effect on usual occupation and resulting work problems. Their effect on occupational activities was noted to include decreased concentration, inappropriate behavior, poor social interactions, decreased mobility, problems with lifting and carrying, and pain. The examiner noted there were no effects on usual daily activities. In terms of employment history, the Veteran reported retiring from truck driving in 1984 due to a fractured foot. A March 2011 VA general medical examination shows the Veteran's headaches occurred daily (morning) and that he took Tylenol for them. He sometimes took Tylenol every other day for noon and nighttime headaches. The examiner noted the Veteran was able to do activities of daily living and that the headaches were not prostrating. In terms of occupational history, the Veteran reported working as a farmer for 12 years and then working for Hanson Silo Company until 1981, when he retired. During an April 2011 VA mental disorders examination, the Veteran reported that he was a truck driver for two years and would also help out a farmer with driving the tractor, but that he had to quit doing those things because they would trigger the headaches. The Veteran also reported almost daily headaches that interfere with all activities. He explained that he could not work, do housework, or help out around the house because so many activities aggravate the headaches. In a handwritten statement received in April 2011, the Veteran indicated that his headaches had gotten worse and were now "as bad as they can get." The Board remanded the claim for another VA examination. The Veteran underwent a VA headaches examination in September 2012. He reported that his headaches were the same as since service, or a little more constant. They were at a level seven out of 10 on most days and were described as sharp at times and constantly dull. They were better in a quiet and dark room. The Veteran reported taking four to eight Tylenol pills a day. He denied any other recent treatment. The examiner noted that the Veteran had developed Parkinson's disease along with his chronic diabetes mellitus, arteriosclerotic heart disease and hypertension. It was also reported that headaches were worse with noise or in a rough riding vehicle like the VA van, and that the Veteran was forced to go to bed two or three times a week to control the pain. The Veteran reported experiencing headache pain. It was noted to include constant head pain; pulsating or throbbing head pain; pain on both sides of the head; pain worsened with physical activity; and worsened pain with more people around, which could cause the headache to throb. The Veteran did not experience nausea, vomiting, sensitivity to light, sensitivity to sound, changes in vision (such as scotoma, flashes of light, tunnel vision), or sensory changes (such as feeling of pins and needles in extremities). The duration of typical head pain was daily and they were located in the middle of the head. The examiner noted that the Veteran did not have characteristic prostrating attacks of migraine headache pain or very frequent prostrating and prolonged attacks of migraine headache pain. He did have prostrating attacks of non-migraine headache pain, noted to occur more frequently than once per month, and very frequent prostrating and prolonged attacks of non-migraine headache pain. It was the examiner's opinion that the Veteran's headache condition did not impact his ability to work. The Veteran also underwent a VA mental disorders examination in September 2012. The examiner indicated that there was total occupational and social impairment. The examiner explained that "This is probably a moot topic because the last job he had was about 1981 working for a trucking company for about 10 years but when asked if there are any mental health issues that affect his ability to work he said "no." In his initial C&P he was deemed unemployable due to his severe headaches but this examiner would also opine that at his age (80) it is unlikely that he could work again." The Veteran underwent a VA headaches examination in January 2013. The examiner reported that the Veteran's story is inconsistent as he sometimes says his headaches are constant and at other times that they are intermittent. The examiner indicated that in her judgment, they were intermittent overall with frequency three to four times a day. The Veteran reported that the headaches went away 30 minutes after taking Tylenol. He indicated that his headaches were worse in the morning and with noise and riding in a van over bumpy terrain. The headaches were sometimes achy and sometimes pounding in nature. The location was frontal and vertex. The Veteran reported pain worsening with physical activity, sensitivity to sound, and photosensitivity since the removal of cataracts (the examiner specifically indicated this sensitivity was unrelated to headaches). The duration of typical head pain was noted to be less than one day with 30 minutes duration after acetaminophen. Frequency was three to four times a day. The location of typical head pain was frontal and vertex. The Veteran did not have characteristic prostrating attacks of migraine headache pain, nor did he have very frequent prostrating and prolonged attacks of migraine headache pain, prostrating attacks of non-migraine headache pain, or very frequent prostrating and prolonged attacks of non-migraine headache pain. The Veteran's work history was reported as driving a tractor from the age of 15 to 18 and working for a rancher from the age of 18 to 22, when he went into service. After service, he went to work for Hanson Silo Company and had to pick up silo staves that weighed about 85 pounds. He had headaches when he bent over and lifted these staves so he quit after about half a year. Then he worked with a farmer for about five years until he bought his own farm, a dairy farm where he worked for 10 to 12 years. He sold it because he did not like the Norwegians who spoke Norwegian as he thought they might be saying something bad about him. He went back to Hanson and worked there as a truck driver for about 10 years until he fractured his left ankle. He was off on Worker's Compensation and when he returned, he was laid off. At that time he was old enough to apply for Social Security so he never tried to get another job. The examiner indicated that the Veteran's headache condition did not impact his ability to work. In terms of a normal day, the Veteran reported getting up at 7am, dressing, shaving, and eating breakfast. He then watched television and played card games. About once a month he goes out to coffee with his brother. He attends church every Sunday. He does not help with housework but goes to his grandchildren's sporting events, usually in the summer because he does not like to drive during the winter. He went to baseball and softball games and did not like going to volleyball or basketball games because the loud sounds aggravate his headaches. It was the examiner's opinion that the Veteran's headaches were not prostrating by his own description and that they do not impair his ability to be gainfully employed in a quiet environment since loud sounds do increase his headaches. The examiner noted that the headaches, though frequent three to four times a day, are alleviated within a short period of time (30 minutes) by acetaminophen alone. The examiner also noted for the record that the Veteran had not sought gainful employment since 1981, when he was laid off after sustaining a left ankle fracture on the job, and that he was of age to get Social Security and had never sought employment in the last 32 years. The examiner also included a discussion of the findings noted in the VA examinations dated in March 2011, April 2011 and September 2012. It was the examiner's opinion, based on a review of the medical records and conducting a history and physical examination in January 2013, that she agreed with the September 2012 assessment by the examiner who conducted the VA headaches examination, namely that the Veteran's service-connected headaches do not impact his ability to work. In addition to reiterating many of the points she previously made, the examiner also noted that post-concussive headaches do not increase naturally after the period of time following the Veteran's 1981 retirement. She also pointed out that the Veteran denied anxiety, depression, dizziness, vertigo, disequilibrium, visual complaints since cataracts had been removed, a decreased sense of smell and taste, diplopia, blurred vision, dysphagia, dysarthria, weakness, memory problems, or problems concentrating. The Board will now address the first step in the three-step analysis for determining whether an extra-schedular evaluation is appropriate, as outlined in Thun. The Board has compared the level of severity and symptomatology of the claimant's service-connected posttraumatic headaches with the established criteria found in the rating schedule and finds that the Veteran's disability picture is not so unusual or exceptional in nature to render the current rating inadequate with respect to his service-connected posttraumatic headaches. The medical evidence outlined above indicates that the Veteran's headaches occur anywhere from one to four times a day, and are predominantly described by the Veteran as moderate in severity and frequently as severe. The medical evidence indicates that his headaches are usually responsive to Tylenol within a half hour to sometimes one and one-half hours. Although the Veteran occasionally has to lie down in a dark room to alleviate his headaches, and complains that they are triggered by loud noise (to include the noise produced by his grandchildren), vibration, or his being jarred about in farm machinery, he has consistently denied that his headaches are accompanied by nausea, vomiting, anorexia, numbness, visual changes or scotomas, vertigo or syncope. The Board acknowledges that the Veteran's service-connected posttraumatic headaches are frequent, and that they even occur daily. The objective evidence of record, however, to include the Veteran's own testimony, fails to show that they are completely prostrating or prolonged. Rather, the Veteran has consistently reported that his headaches affect him more in the morning, that they are relatively quickly alleviated by over-the-counter medication, and that he is still able to generally function most days. In addition to the foregoing, several VA examiners have specifically found that the Veteran's headaches are not prostrating. See VA examination reports dated June 2006 (attacks were not prostrating, noting that ordinary activity was possible); February 2011 (not prostrating as ordinary activity was possible); March 2011 and January 2013. Moreover, the May 2005 VA examiner opined that the Veteran's headaches did not seem to bother his activities of daily living; the June 2006 VA examiner opined that they had a moderate effect on some of his usual daily activities such as exercise and chores; the August 2007 VA examiner opined that while the Veteran's headaches were constant and fairly severe, they did not impair his ability to function the greater percentage of the time (except when he was in a very loud environment) and did not impact his ability to perform activities of daily living; the February 2011 VA examiner noted there were no effects on usual daily activities; and the March 2011 VA examiner noted the Veteran was able to do activities of daily living. The Board acknowledges the September 2012 headaches examiner's finding that the Veteran had prostrating attacks of non-migraine headache pain, noted to occur more frequently than once per month, and very frequent prostrating and prolonged attacks of non-migraine headache pain. This opinion is not afforded any probative value as the examiner did not explain how the Veteran's non-migraine type headaches were prostrating. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (a factor for assessing the probative value of a medical opinion includes the thoroughness and detail of the opinion). To the extent this assessment was based on the Veteran's report of being forced to go to bed two or three times a week to control the pain, the Board does not find this report to be credible, since it is the first and only time the Veteran has made such an assertion. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (a pecuniary interest may affect the credibility of a claimant's testimony). The Board may reject a medical opinion if it finds that other facts present in the record contradict the facts provided by the Veteran that formed the basis for the opinion. Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Coburn v. Nicholson, 19 Vet. App. 427 (2006). In addition to the September 2012 VA examiner's finding not being afforded any probative value, the Board notes that the examiner who conducted the February 2011 VA neurological examination specifically noted that the Veteran's headaches, though weekly in occurrence with a usual duration of hours, were not prostrating as ordinary activity was possible, and that the January 2013 VA examiner came to the same conclusion, noting that the Veteran did not have prostrating attacks of non-migraine headache pain, or very frequent prostrating and prolonged attacks of non-migraine headache pain. The January 2013 VA examiner also concluded that the Veteran's story was inconsistent as he sometimes reported his headaches were constant and at other times reported that they were intermittent. In the absence of probative and credible evidence that the Veteran's posttraumatic headaches are either prolonged or prostrating, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology. See 38 C.F.R. § 4.124a, Diagnostic Code 8100; see also VAOGCPREC 6-96 (Aug. 16, 1996). Since the available schedular evaluation adequately contemplates the Veteran's level of disability and symptomatology, the second and third questions posed by Thun become moot. Nevertheless, the Board will address the second step in the three-step Thun analysis next. As noted above, the second step outlined in Thun is to determine whether the Veteran's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms," which include marked interference with employment and frequent periods of hospitalization. See Thun, 22 Vet. App. at 115-16; see also 38 C.F.R. § 3.321(b)(1). At this juncture, the Board notes that the Veteran has never asserted that he is entitled to an extraschedular rating based on frequent periods of hospitalization. In that vein, however, the Board notes that neither VA nor private treatment records support a finding that the Veteran has ever been hospitalized in relation to his service-connected posttraumatic headaches. The Veteran has hung his hat on his adamant assertion that his service-connected posttraumatic headaches have caused marked interference with employment. The Board has conducted a very careful review of the evidence of record. As it pointed out in its December 2012 remand, there is conflicting evidence in the record regarding the effect that the service-connected posttraumatic headaches have on the Veteran's ability to work. A June 1983 letter from Dr. R.V.J. at Noran Neurological Clinic, P.C., reports, in pertinent part, that the Veteran was involved in an accident on September 21, 1981, when he fell from a semi-trailer while in the process of tying a steel silo cage on, falling about 10 to 12 feet and fracturing his left ankle. He had a lot of right occipital headache and some other symptomatology and had not been back to work, although he had been cleared to go back to work by his orthopedist. It was noted that the company would not accept him and he was involved in a complicated legal situation. During a July 1984 VA examination, the Veteran reported his occupational history since his discharge from service. He reported driving a truck from 1956 to 1958, being a self-employed farmer from 1958 to 1968, and working for Hanson Silo from 1969 until 1981. Although not specifically noted, there was no indication the Veteran had worked at all between 1981 and July 1984. During a December 2000 VA examination, the Veteran reported basically working as a farmer most of the years since his discharge from service. No specific current employment was noted. Nor was there any specific discussion of current employment noted at the time of a May 2005 VA neurological examination. The first time the Veteran reported any current employment after his 1981 injury was during a December 2005 VA visit. More specifically, he reported having to quit his work operating a tractor as it was inducing headaches so frequently. See medicine clinic resident note. He repeated this assertion during the June 2006 VA neurological examination when, although denying being employed at that time, he reported being forced to stop helping a farmer he had been helping for the last 17 years the year prior, as he was unable to deal with the bouncing while riding machinery as it caused headaches. The Board notes that if the Veteran had been helping out a famer for 17 years prior to 2005, that employment would have begun in 1988. A September 2006 VA internal medicine resident note reveals that the Veteran reported currently working as a semi-driver. After that, however, the Veteran did not report current employment. For example, in a March 2007 statement from the Veteran's then-representative, it was asserted that the Veteran "retired from working some years ago due to another, non-service-related disability (badly broken leg). However, since that time, his headaches have become much more severe, to the point that now the headaches alone would prohibit him from working." The Board notes that there was no specific assertion as to when "some years ago" was. The Veteran also did not report any current employment during the April 2007 VA general medical or the August 2007 VA neurological examinations, indicating instead that he was last employed in 1984 as a truck driver. During the April 2007 examination he indicated that he was ultimately laid off in 1984 and tried to get other work, but could not. During the August 2007 examination, the Veteran reported that he stopped working as a truck driver as a result of a left foot fracture. The Board notes that the examiner used the Veteran's own occupational history, and reason for not working since 1984, in forming an opinion that the Veteran's headaches were not the cause of his inability to continue working as a truck driver. It is also important to note that the Veteran's wife also noted that he had to stop truck driving and working because of frequent headaches. See April 2007 VA Form 21-4138. It is telling that no mention was made of any more-recent employment with a farmer. The Veteran again did not report any current employment during the February 2011 VA neurological examination, again noting that he was last employed in 1984 as a truck driver and that the cause of retirement was medical due to a fractured foot. During the March 2011 VA general medical examination, the Veteran asserted 1981 as the year he was last employed, when he retired from Hanson Silo. During the April 2011 VA mental disorders examination, the Veteran reported driving a truck for two years and helping out a farmer with driving a tractor (but having to quit doing these things because they would trigger the headaches) without specifying when he last worked. The Veteran again noted 1981 as the last year of employment during the September 2012 VA mental disorders examination, and during the January 2013 VA headaches examination, he specifically denied seeking employment after sustaining a fracture while working as a truck driver for Hanson Silo Company since he was old enough to apply for Social Security. Also important to note is the fact that when seeking entitlement to a TDIU, the Veteran reported only past employment with Hanson Silo as a truck driver between January 1970 and January 1981. See VA Forms 21-8940 filed in March 2007 and February 2011. The Veteran has given varying and wholly inconsistent reports of his employment history since 1981, choosing on some occasions to deny any form of employment beginning alternatively in 1981 and 1984, choosing on other occasions to report working for a substantial amount of time between the mid to late 1980s until the mid-2000s, and choosing on still other occasions to report employment after the inception of his claim that formed the basis for this appeal. The Veteran has also given varying and wholly inconsistent reports as to why he ceased employment, alternating between reporting a left foot fracture during the early 1980s as the reason he stopped working and, more recently, to asserting his service-connected headaches as the cause. The Board again points out that if the Veteran had been helping out a famer for the last 17 years, as reported during the June 2006 VA neurological examination, that employment would have begun in 1988. It is important to note that he did not mention any such employment during VA examinations conducted in December 2000 or May 2005. The inconsistency surrounding the Veteran's history of employment and reasons for ceasing employment, irrespective of when that actually happened, have led the Board to determine that the Veteran is not credible. The Board also notes at this juncture that for reasons it cannot ascertain, the Veteran has failed to report the most recent employment he contends he had, namely working for a farmer until sometime in the mid-2000s, when being examined more recently, specifically in February 2011, March 2011, September 2012 and January 2013. The Board sought these VA examinations after the Court issued its February 2010 memorandum decision to specifically address the question as to whether the Veteran is entitled to an extraschedular evaluation for his service-connected posttraumatic headaches. The Board acknowledges the June 2008 statement from the Veteran's private treating chiropractor, indicating that his headaches disabled him from riding his tractor. To the extent that this statement can be interpreted as support for the Veteran's assertion that he had to stop helping a farmer for whom he had been working sometime in the mid-2000s, it is not afforded any probative value since the Veteran's employment history, to include the alleged recent work with a famer, has been determined to be incredible. See Kowalski, 19 Vet. App. at 179; Coburn, 19 Vet. App. at 432. Since there is no credible or probative medical or lay evidence to support the Veteran's adamant assertion that his service-connected posttraumatic headaches have caused marked interference with employment and, as noted above, no evidence of frequent periods of hospitalization in relation to the Veteran's service-connected posttraumatic headaches, the factors outlined in the second step of Thun have not been met. Therefore, the third question posed by Thun becomes moot. Nevertheless, the Board will conclude its analysis in this case by addressing the third step in the three-step Thun analysis. As noted above, if the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the C&P Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. See Thun, 22 Vet. App. at 116. This case has twice been referred to the Director of C&P. In August 2012, the Director of C&P reported that the Veteran was service-connected for posttraumatic headaches evaluated at 30 percent, anxiety associated with posttraumatic headaches evaluated at 30 percent, facial scars evaluated at 10 percent, and history of ulcer disease complicated gastric outlet obstruction associated with posttraumatic headaches evaluated at 10 percent. The examiner also reported that the February 2011 neurological examination showed the Veteran reported his headaches are nearly constant especially in the mornings; that the headaches last about an hour and are relieved by taking Tylenol; that the headaches were not prostrating and ordinary activity was possible; that the headaches were diagnosed as migraines; and that the headaches caused decreased concentration, inappropriate behavior, poor social interaction, decreased mobility, problems with lifting and carrying, and pain. The Director noted that the 30 percent evaluation was continued in an August 2011 rating decision. After laying out the regulatory criteria for an extraschedular evaluation and describing the three-step process outlined in Thun, the Director concluded that there was no evidence that the Veteran's service-connected posttraumatic headaches present an exceptional or unusual disability picture with related factors of marked interference with employment or frequent periods of hospitalization that renders the application of the current rating criteria impractical. Entitlement to an extraschedular evaluation in excess of 30 percent for the service-connected posttraumatic headaches was denied. In July 2013, the Director of C&P reported that it had determined that the evidence does not support an increased evaluation in excess of 30 percent on an extraschedular basis for the posttraumatic headaches. The Director reported that the January 2013 examination revealed the Veteran's report on the severity of his posttraumatic headaches was inconsistent. The examiner stated the headaches seem to be intermittent overall, occurring three to four times a day, lasting 30 minutes, and relieved with Tylenol. The headaches were not prostrating in nature. The headaches do not have an impact on the Veteran's ability to work. The examination contains opinions from two physicians which concluded that the service-connected posttraumatic headaches do not impact the Veteran's ability to work. The headaches occur three to four times a day lasting for 30 minutes. The Director noted a February 2013 response to the January 2013 supplemental statement of the case, which stated that the headaches severely interfere with the Veteran's ability to work. The Director noted the August 2007 medical opinion stating that the service-connected headaches do not impair to Veteran's ability to perform activities of daily living, and was not the cause of the Veteran's end of employment. The headaches are not the cause of his inability to work. In January 2013, two physicians opined that the headaches have no impact on the Veteran's ability to work. The Director concluded that the record presented no evidence of an exceptional or unusual disability picture such as marked interference with employment or frequent periods of hospitalization that would render the application of the current rating criteria inadequate. Entitlement to an increased evaluation in excess of 30 percent for the service-connected posttraumatic headaches was denied. The Board notes that any deficiency in either the August 2012 or July 2013 decision by the Director of C&P in regards to what evidence was cited is not prejudicial to the Veteran as the first two steps of the analysis in Thun were not met. The Board agrees with the Director of C&P that the evidence does not warrant an extraschedular evaluation for the Veteran's service-connected posttraumatic headaches. In summary, it has determined that the degrees of disability specified in the rating criteria for migraine headaches are adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1; VAOPGCPREC 6-96; see also Bagwell v. Brown, 9 Vet. App. 337, 338 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The record is also devoid of evidence of frequent periods of hospitalization in relation to the Veteran's service-connected posttraumatic headaches as well as credible or probative medical or lay evidence that his service-connected posttraumatic headaches have caused marked interference with employment. Therefore, the Board finds that there is no evidence showing that solely the service-connected posttraumatic headaches cause marked interference with employment, or frequent periods of hospitalization, rendering impractical the application of the regular rating schedule. See 38 C.F.R. § 3.321(b). Lastly, the Director has twice denied entitlement to an extraschedular rating for the Veteran's service-connected posttraumatic headaches on the basis that there was no unusual or exceptional disability pattern that renders application of the regular rating criteria impractical. Based on the foregoing, entitlement to an extraschedular evaluation for posttraumatic headaches is denied as there is clearly no unusual or exceptional disability pattern that renders the application of the regular rating criteria impractical pursuant to 38 C.F.R. § 3.321(b)(1) (2013). ORDER An extraschedular rating under 38 C.F.R. §3.321(b)(1) for posttraumatic headaches is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs