Citation Nr: 1333033 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 07-34 838 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE 1. Entitlement to an initial compensable evaluation for migraine headaches prior to September 23, 2011. 2. Entitlement to an initial evaluation in excess of 30 percent for migraine headaches beginning on September 23, 2011. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Osegueda, Associate Counsel INTRODUCTION The Veteran had active service from October 1974 to June 1976. He had additional service in the United States Marine Corps Reserves. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In that rating decision, the RO granted service connection for migraine headaches and assigned a noncompensable evaluation effective from March 29, 2005. The Veteran appealed the assigned evaluation. In September 2011, the Board remanded the issue for further development. Thereafter, in a June 2012 rating decision, the RO increased the evaluation for the Veteran's service-connected migraines, including migraine variants, to 30 percent effective from September 23, 2011. Applicable law mandates that, when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). Therefore, the issue remains on appeal. In addition to the paper claims file, there is a Virtual VA paperless file associated with the Veteran's claim. A review of the documents in the paperless claims file reveals an October 2013 brief submitted by the Veteran's representative. However, the remaining documents are either duplicative of the evidence in the paper claims file or irrelevant to the issues on appeal. FINDINGS OF FACT 1. For the period prior to September 23, 2011, the Veteran's service-connected migraine headaches have been productive of characteristic prostrating attacks occurring at least once a month that require medication, but he did not have very frequent completely prostrating and prolonged productive of severe economic inadaptability. 2. For the period beginning on September 23, 2011, the Veteran's service-connected migraine headaches have been productive of very frequent completely prostrating and prolonged productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for an initial 30 percent rating, but no higher, for migraine headaches has been approximated for the period prior to September 23, 2011. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.124a, Diagnostic Code 8100 (2012). 2. 1. The criteria for an initial 50 percent rating, but no higher, for migraine headaches has been approximated for the period beginning on September 23, 2011. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.124a, Diagnostic Code 8100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and, (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, the Veteran is challenging the initial evaluation assigned following the grant of service connection for migraine headaches. In Dingess, the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. See also VAOPGCPREC 8- 2003 (December 22, 2003). Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify has been satisfied with respect to the issue of entitlement to a higher initial rating for the Veteran's service-connected headache disability. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records and all identified and available post-service medical records are in the claims file and were reviewed by both the RO and the Board in connection with the claim. The Veteran has not identified any other outstanding records that are pertinent to the issue currently on appeal. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran was afforded a VA headaches examination in May 2006. In accordance with the Board's September 2011 remand directives, the Veteran was afforded another VA headaches examination in September 2011. Specifically, in the September 2011 remand, the Board directed the examiner to report all signs and symptoms necessary for rating the Veteran's disability under the rating criteria. In particular, the examiner was requested to "indicate the frequency and duration of any prostrating attacks and opine as to whether the Veteran's service-connected headache disability has resulted in severe economic inadaptability." The Board finds that the VA examination and opinion obtained in this case are adequate, as they are predicated on a review of the claims file and all pertinent evidence of record, as well as on an examination, and fully address the rating criteria that are relevant to rating the headache disability in this case. Moreover, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected headache disability since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11- 95. Thus, there is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion regarding the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). VA has further assisted the Veteran and her representative throughout the course of this appeal by providing them with a statement of the case (SOC) and various supplemental statements of the case (SSOCs), which informed them of the laws and regulations relevant to the Veteran's claim. The Board concludes that the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim, and he did, in fact, participate. Washington v. Nicolson, 21 Vet. App. 191 (2007). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. The Veteran and his representative have not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the particular claim on appeal. He has been given ample opportunity to present evidence and argument in support of his claim. All relevant evidence necessary for an equitable disposition of the Veteran's appeal of these issues have been obtained, and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). Laws and Regulations Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Where a veteran appeals the initial rating assigned for a disability when a claim for service connection for that disability has been granted, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an [initial] rating on appeal was erroneous..." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id.; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). It is possible for a veteran to have separate and distinct manifestations from the same injury that would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); 38 C.F.R. § 4.14 (2012) (precluding the assignment of separate ratings for the same manifestations of a disability under different diagnoses). In this case, the Veteran's migraine headaches, has been evaluated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100. Under that diagnostic code, a noncompensable evaluation is assigned for migraine headaches with less frequent attacks. A 10 percent rating is warranted for migraine headaches with characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent rating is provided for migraine headaches with characteristic prostrating attacks occurring on an average once per month over the last several months. A maximum 50 percent rating is assigned for migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The Rating Schedule does not define "prostrating." However, "prostration" has been defined as "complete physical or mental exhaustion." Merriam-Webster's new Collegiate Dictionary 999 (11th ed. 2007). "Prostration" has also been defined as "extreme exhaustion or powerlessness." Dorland's Illustrated Medical Dictionary 1554 (31st ed. 2007). According to Stedman's Medical Dictionary, 27th Edition (2000), p. 1461, "prostration" is defined as "a marked loss of strength, as in exhaustion." See Eady v. Shinseki, No. 11-3223, 2013 WL 500460 (Vet. App. Feb. 12, 2013). Additionally, the phrase "productive of severe economic adaptability" has not been clearly defined by regulations or by case law. The United States Court of Appeals for Veteran's Claims (Court) has noted that "productive of" can either have the meaning of "producing" or "capable of producing." Pierce v. Principi, 18 Vet. App. 440, 445 (2004). Thus, migraines need not actually "produce" severe economic inadaptability to warrant the 50 percent rating. Id. at 445-46. Further, "economic inadaptability" does not mean unemployability, as such would undermine the purpose of regulations pertaining to TDIU. Id. at 446; see also 38 C.F.R. § 4.16 (2012). The Board notes, however, that the migraines must be, at a minimum, capable of producing "severe" economic inadaptability. Factual Background and Analysis As previously noted, the RO granted service connection in a September 2006 rating decision and assigned an initial noncompensable evaluation effective from March 29, 2005. During the pendency of the appeal, the Veteran was assigned a 30 percent evaluation effective from September 23, 2011. In a statement received in May 2005, the Veteran reported that he had constant headaches, took extra strength Tylenol twice a day, and used warm towel compresses to treat them. In a May 2005 private treatment note, the Veteran reported that he had headaches five times per week. A November 2005 private computed tomography (CT) scan of the brain was normal. There was mucosal thickening within the right sphenoid sinus and the left maxillary sinus attributed to chronic sinusitis. The interpreting physician noted that he did not see any suspicious findings within the posterior fossa or petrous bones. In a December 2005 private treatment note, the Veteran indicated that he had chronic recurring headaches that were predominantly occipital with a pressure sensation. He stated that he had low grade pain "all the time." He also stated that he took several medications that helped. On examination, the neurologist noted that the Veteran did not appear to be in any distress. A neurological examination was normal, including speech and mentation, and cranial nerves II through XII were entirely intact. There were no muscle tone abnormalities, drifts, or sensory deficit, and deep tendon reflexes were 2+ and symmetrical. There were no pathological reflexes. A cerebellar examination, coordination, and gait were also within normal limits. The neurologist diagnosed the Veteran with tension headaches. He noted that the Veteran's current medication regimen of Tramadol and occasional codeine worked very well and that he should continue taking them. In December 2005, the Veteran underwent a private cervical spine magnetic resonance imaging (MRI) study following complaints of neck pain and frequent headaches. The interpreting physician noted foraminal narrowing at C2-3, C3-4, C4-5, C5-6, and C6-7. There was no evidence of disc herniation or central canal stenosis. During a May 2006 VA examination, the Veteran reported having recurring migraine headaches. He described constant symptoms, including dizziness, severe pain, pressure, and stiffness in his neck and shoulders. He stated that, when he had an attack, he was unable to go to work and required medication. He indicated that his attacks occurred once per day and lasted all day. He noted that his treatment consisted of codeine, Ultram, and etodolac, and it provided some relief of his symptoms. The Veteran related that he was unable to perform any activities of daily living during more severe attacks. A neurological examination showed normal cranial nerves, coordination, and motor and sensory function of the upper and lower extremities. The diagnosis was tension headaches. In a November 2006 statement, the Veteran's employer reported that the Veteran worked as a painter. He noted that the Veteran had regular doctor's appointments and that he called in sick "from time to time," but he did not tell his employer what medical condition was being treated. Private treatment notes dated from February 2007 to April 2007 show that the Veteran was treated with injections to the occipital nerves bilaterally. In a February 2007 private treatment note, the Veteran reported that his pain level before the occipital nerve blocks was 8 out of 10 in severity, and after the blocks, his pain level was 4 out of 10 in severity. In a March 2007 private treatment note, the Veteran indicated that he had no sustained relief from the occipital nerve blocks. He reported that he had a couple of hours of temporary relief of pain over his greater and lesser occipital nerves, but it did not last. He was treated with bilateral injections at the greater and lesser occipital nerves. He reported that his pain level before the occipital nerve blocks was 9 out of 10 in severity, and after the blocks, his pain level was 6 out of 10 in severity. In an April 2007 private treatment note, the Veteran stated that he had no relief following the March 2007 greater occipital nerve blocks. He was treated with bilateral C2 and C3 medial branch blocks to "hopefully denervate the C2-3 facet joint," so he could "get a sense of whether or not his pain [was] coming from that joint." He reported that his pain level before and after the blocks were 8 out of 10 in severity. He noted no reduction in his pain immediately after the blocks. In an October 2007 VA Form 9, the Veteran reported that his headaches were "severe in nature." He indicated that he previously submitted a statement from his employer that showed that his headaches were "prostrating" and that he "lost time from work because of the headaches." In October 2007, the Veteran submitted a copy of a VA prescription form signed by a physician and dated in August 2007 that noted that he was prescribed bed rest for a period of 48 hours. However, a review of the VA treatment notes associated with the record showed that the Veteran was prescribed bed rest after he presented with complaints of cold symptoms and was diagnosed with an upper respiratory infection. In a November 2007 private medical opinion, the Veteran's treating physician noted that the Veteran had a long history of cervicalgia and occipital headaches. In a December 2007 statement, the Veteran reported that his headaches prevented him from working and that his pain caused him to "walk around holding [his] head, hoping that the pain will not get too severe." In a January 2009 private neurological consultation report, the Veteran complained of pain in the upper left side of his head at the junction between his skull and his neck. He denied radiating neuralgiform pain. Rather, he complained of continuous aching discomfort in the nuchal ridge. He reported that he had facet joint blocks and other deep injections without benefit in the past. He stated that his present medications did not help his pain. The examining neurologist noted that the Veteran had a lot of pain, particularly on the left side in the region of the greater occipital nerve. His impression was that the Veteran had a spinal enthesopathy. A neurological examination was normal. In June 2009 and July 2009 private pain consultation reports, the Veteran reported that he had headaches mainly in the posterior occipital region. He indicated that his pain had increased in severity during the past few months. He related that he felt a constant moderately severe pain in his neck area with numb sensations, tingling sensations, and achy, sharp, and shooting neck pain that radiated to his head and bilateral hands. He indicated that his neck pain was aggravated by looking up, looking down, turning his head to the left and right, and prolonged driving. He stated that pain medications and epidural injections decreased his pain. He rated his neck pain at 8 out of 10 in severity. The diagnoses were headaches, cervical spondylosis without myelopathy, and occipital neuralgia. July 2009 and August 2009 private procedure notes showed that the Veteran had injections to the right C4/5, C5/6, and C6/7 facet joint medial branch nerves. During a September 2011 VA examination, the Veteran reported that he had a constant headache, 24 hours per day for seven days per week, for several years. He stated that the typical worsening headache pain lasted several hours, but noted that he was never without headache pain. The Veteran described pain in the posterior cervical region and in the frontal component. He related that he had a feeling of numbness or tingling in the mid-face region with worsening headaches. He stated that several interventions, including facet joint injections and trigger point injections, were undertaken without effect on the pain. He also noted that he took Tylenol with codeine and ibuprofen three times per day and a muscle relaxant without relief. The Veteran indicated that previous trials with Tramadol were also ineffective. He reported that he had prostrating attacks of migraine headache pain more frequently than once per month and that he missed one to two days of work per week due to headache pain. X-rays of the skull and cervical spine showed no acute bony abnormalities, and a neurological examination was normal. The VA examiner stated, "At least by [the Veteran's] history, his headaches are dominating his life and limiting his gainful employment as a painter" because he missed one to three days of work per week. The VA examiner noted that the headaches had two components that were not easily separated, including frontal headaches most closely associated with an aura of facial paresthesias and most easily characterized as migraines, and severe and disabling pain in the occipital and posterior neck regions caused by possible tension headaches. He opined, "[T]his Veteran's service[-]connected headaches have been increasing in severity (may be unable to leave home), frequency (never without headache pain, but episodes of worsening may be [one to three] times week) and duration (hours to [one] day) to the point that he now misses [one to three] days of work each week with resultant severe economic disability as 20 [to] 60 [percent] of his potential income for each of those weeks is lost." In an October 2013 brief, the Veteran's representative contended that a 50 percent evaluation was warranted in this case. He argued that the Veteran's migraines caused "severe economic adaptability" because he missed one to three days of work, which "could have a profound effect on [his] income." First, with respect to the time period prior to September 23, 2011, the evidence of record demonstrates that the Veteran's headaches more nearly approximate the criteria for a 30 percent rating. Throughout the period prior to September 23, 2011, the Veteran reported that he was unable to work when he had an "attack." Specifically, during the May 2006 VA examination, he reported recurring migraine headaches with constant symptoms, including dizziness, severe pain, pressure, and stiffness in his neck and shoulders. He stated that he was unable to go to work and required medication when he had an attack. He indicated that his attacks occurred once per day and lasted all day. There is no dispute that the Veteran is competent to report symptoms of headaches that require medication, including pain, vertigo, pressure, and stiffness in his neck and shoulders, because these are symptoms that may be actually observed and are within the realm of her personal knowledge. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). There is also no reason to doubt the credibility of these statements. Resolving the benefit of the doubt in favor of the Veteran, the Board finds that the Veteran has sufficiently described characteristic and prostrating migraines occurring at least once a month for the period prior to September 23, 2011. Therefore, the Board concludes that his symptoms more nearly approximate a 30 percent rating for that period. The next pertinent inquiry is whether, at any point during the appellate period (both prior to and after September 23, 2011), the Veteran's symptoms have more nearly approximated the criteria for the next higher 50 percent rating. After carefully reviewing the evidence of record, the Board finds that his symptoms prior to September 23, 2011, do not approximate the criteria for a 50 percent rating; however, his symptoms beginning on September 23, 2011, do meet the criteria for a maximum 50 percent rating. The 50 percent rating contemplates very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. As noted above, the Veteran has consistently described persistent headaches occurring daily. However, in a December 2005 private neurology treatment note, he stated that he had low grade pain "all the time" and that he took several medications that helped alleviate his symptoms. The examining neurologist noted that the Veteran's medication regimen of Tramadol and occasional codeine worked "very well" and that he should continue taking them. Additionally, the Veteran told the May 2006 VA examiner that his medication provided some relief of his symptoms and that he was unable to perform any activities of daily living during more severe attacks. He indicated that he was unable to work during an attack. Private pain consultation reports dated in June 2009 and July 2009 also noted that his pain increased over the previous few months and that he then had moderately severe pain. Thus, even if the Board were to consider the headaches to be very frequent, the evidence does not establish that these headaches are completely prostrating, prolonged attacks productive of "severe economic inadaptability" for the period prior to September 23, 2011. The Board does acknowledge that the Veteran described persistent, severe headaches manifested by dizziness, severe pain, pressure, and stiffness in his neck and shoulders, prior to September 23, 2011. Additionally, he reported that his headache symptoms affected his work because he was unable work during attacks. See May 2006 VA examination. He also submitted a statement from his employer dated in November 2006 to support his contention that he lost time from work due to his headaches. The Board notes that, in the statement, the Veteran's employer indicated that the Veteran had regular doctor's appointments and that he called in sick "from time to time," but the employer did not identify the medical condition or state that his absence was due to headaches. Additionally, in October 2007, the Veteran submitted a copy of a VA prescription form signed by a physician and dated in August 2007 noting that the Veteran was prescribed bed rest for a period of 48 hours. However, a review of the VA treatment notes associated with the record showed that the Veteran was actually prescribed bed rest after he presented with complaints of cold symptoms and was diagnosed with an upper respiratory infection. This evidence does not show that the Veteran experienced the type of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability that are contemplated by a 50 percent rating for the period prior to September 23, 2011. For the period beginning on September 23, 2011, the Board notes that the evidence shows the Veteran had very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. During the September 2011 VA examination, the Veteran reported that he had a constant headache, 24 hours per day for seven days per week, for several years. He stated that the typical duration of worsening headache pain lasted several hours, but noted he was never without headache pain. He stated that several interventions, including facet joint injections and trigger point injections, were undertaken without effect on the pain. He also indicated that he took Tylenol with codeine and ibuprofen three times per day and a muscle relaxant without relief. He indicated that previous trials with Tramadol were also ineffective. The Veteran reported that he had prostrating attacks of migraine headache pain more frequently than once per month and that he missed one to two days of work per week due to headache pain. The VA examiner stated, "At least by [the Veteran's] history, his headaches are dominating his life and limiting his gainful employment as a painter" because he missed one to three days of work per week. He opined, "[T]his Veteran's service[-]connected headaches have been increasing in severity (may be unable to leave home), frequency (never without headache pain, but episodes of worsening may be [one to three] times week) and duration (hours to [one] day) to the point that he now misses [one to three] days of work each week with resultant severe economic disability as 20 [to] 60 [percent] of his potential income for each of those weeks is lost." This is the first evidence showing that the Veteran's headaches may be productive of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Based on the foregoing, the Board concludes that the Veteran is not entitled to an initial evaluation in excess of 30 percent for migraine headaches prior to September 23, 2011. However, for the period beginning on September 23, 2011, resolving the benefit of the doubt in favor of the Veteran, the Board finds that a 50 percent initial evaluation is warranted, which is the maximum schedular evaluation available. The Board has also considered whether staged ratings are appropriate in this case. See Hart v. Mansfield, 21 Vet. App. 505 (2007). However, at no time prior to September 23, 2011, has the service-connected migraine headache disability more nearly met or nearly approximated the criteria for greater than a 30 percent rating under Diagnostic Code 8100. The Board notes that the maximum 50 percent rating has been assigned under Diagnostic Code 8100 for the period beginning on September 23, 2011. In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1). However, in this case, the Board finds that the record does not show that the Veteran's headache disability is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1) ) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned ratings with the established criteria found in the rating schedule show that the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Veteran's chief complaints of dizziness, severe pain, pressure, and stiffness in his neck and shoulders are fully considered in the assignment of the 30 percent disability rating prior to September 23, 2011. Moreover, there is a higher rating available under Diagnostic Code 8100 for migraine headaches, but the Veteran's disability is not productive of such manifestations prior to September 23, 2011. He has also been assigned the maximum 50 percent rating beginning on September 23, 2011, which reasonably describes his increased disability level and symptomatology for that period. Indeed, it specifically contemplates his headache symptoms and attacks as well as their effect on his occupation. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected headache disability under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008). ORDER An initial 30 percent evaluation for migraine headaches is granted for the period prior to September 23, 2011, subject to the provision governing the payment of monetary benefits. An initial 50 percent evaluation for migraine headaches is granted as of September 23, 2011, subject to the provision governing the payment of monetary benefits. ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs