Citation Nr: 21069488 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 17-13 828 DATE: November 18, 2021 ORDER Entitlement to an increased rating for scars affecting forehead, scalp, and left eyebrow based on disfigurement, currently rated as 30 percent disabling, is dismissed. Entitlement to an increased rating for scars affecting forehead, scalp, and left eyebrow based on pain, currently rated as 20 percent disabling, is dismissed. Entitlement to an increased rating for sinonasal polyposis, currently rated as 30 percent disabling, is dismissed. Entitlement to an increased rating for Kienbock's disease with arthritis left wrist, currently rated as 10 percent disabling, is dismissed. Entitlement to an increased rating for chronic rhinosinusitis, currently rated as 10 percent disabling, is dismissed. Entitlement to an increased rating for anosmia, currently rated as 10 percent disabling, is dismissed. Entitlement to a 50 percent rating for migraine headaches from September 1, 2010, but no earlier, is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to a total disability rating due to individual unemployability (TDIU) on a schedular basis from September 1, 2010, but no earlier, is granted, subject to the laws and controlling regulations governing the payment of monetary awards. REMANDED Entitlement to TDIU exclusively based on service-connected migraine headaches on an extraschedular basis from September 1, 2010 is remanded. FINDINGS OF FACT 1. In February 2021, prior to the promulgation of a decision in the appeal, the Veteran notified VA that he wished to withdraw his appeal with respect to the issues of increased ratings for the following disabilities: scars affecting forehead, scalp and left eyebrow based on disfigurement; scars affecting forehead, scalp, and left eyebrow based on pain; sinonasal polyposis; Kienbock's disease with arthritis left wrist; chronic rhinosinusitis and anosmia. 2. From September 1, 2010, which is the date the Veteran left work due to migraine headaches and within the one year look back period of the August 29, 2011 increased rating claim, the Veteran's migraine headache symptoms more nearly approximated very frequent prostrating and prolonged attacks that were productive of severe economic inadaptability. 3. From September 1, 2010, the evidence is at least evenly balanced as to whether the Veteran's service connected disabilities preclude him from securing and following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal for reopening the claim for entitlement to an increased rating for scars affecting forehead, scalp and left eyebrow based on disfigurement by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of an appeal for reopening the claim for entitlement to an increased rating for scars affecting forehead, scalp and left eyebrow based on pain by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for withdrawal of an appeal for reopening the claim for entitlement to an increased rating for sinonasal polyposis by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria for withdrawal of an appeal for reopening the claim for entitlement to an increased rating for Kienbock's disease with arthritis left wrist by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 5. The criteria for withdrawal of an appeal for reopening the claim for entitlement to an increased rating for chronic rhinosinusitis by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 6. The criteria for withdrawal of an appeal for reopening the claim for entitlement to an increased rating for anosmia by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 7. From September 1, 2010, the criteria for the maximum schedular 50 percent rating for service-connected migraine headaches have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400(o), 4.3, 4.7, 4.21, 4.124a, Diagnostic Code (DC) 8100. 8. From September 1, 2010, but no earlier, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400(o), 4.1, 4.2, 4.3, 4.7, 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty from January 2002 to November 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which partially increased or continued established ratings for the disabilities listed on the title page. Entitlement to a TDIU has been raised as part of the increased rating claim for migraine headaches, and it is addressed as a separate issue. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In May 2017, the Veteran appointed the attorney listed above as his representative. The Board recognizes this change in representation. In February 2021, the Veteran testified at a virtual Board hearing before the undersigned Veteran Law Judge. A hearing transcript is of record. Withdrawn claims The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal. 38 C.F.R. § 19.55(a). Withdrawal may be made by the appellant or by his or her authorized representative. Id. Unlike its predecessor regulation, 38 C.F.R. § 20.204, 38 C.F.R. § 19.55 does not have a provision explicitly providing for withdrawal of an appeal on the record at a hearing. The regulation does not prohibit such withdrawals, however. At his February 2021 virtual Board hearing, the Veteran with the assistance of his representative, indicated that he wished to withdraw his appeal with respect to the issues of increased ratings for the following disabilities: scars affecting forehead, scalp and left eyebrow based on disfigurement; scars affecting forehead, scalp, and left eyebrow based on pain; sinonasal polyposis; Kienbock's disease with arthritis left wrist; chronic rhinosinusitis and anosmia. A Board decision must include a "finding regarding whether [the appellant] understood the consequences of withdrawing his claims" during a Board hearing. Acree v. O'Rourke, 891 F.3d 1009, 1015 (Fed. Cir. 2018). For the following reasons, these matters are no longer within the Board's jurisdiction and must be dismissed. During the Board hearing, the undersigned Veterans Law Judge explained to the Veteran the consequences of withdrawals of his appeal with respect to these matters. Specifically, that if he withdrew the issue, he could file a new claim, but would have to start all over from the beginning. See Board Hearing Transcript, pp. 2, 3. Given these statements, the Board finds that the Veteran's statement is explicit, unambiguous, and done with a full understanding of the consequences of such action. See DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). Under these circumstances, these matters are no longer within the Board's jurisdiction and must be dismissed. Increased rating for migraine headaches Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. However, 38 C.F.R. § 4.7 is not applicable to diagnostic codes that apply successive rating criteria, i.e., where "the evaluation for each higher disability rating include[s] the criteria of each lower disability rating, such that if a component [i]s not met at any one level, the veteran could only be rated at the level that did not require the missing component." Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The Veteran's service-connected migraine headaches are currently rated as noncompensable from November 10, 2004 and 50 percent disabling from September 20, 2019 under 38 C.F.R. § 4.124a, DC 8100. Under DC 8100, a noncompensable rating is warranted for less frequent attacks; a 10 percent rating is warranted for characteristic prostrating attacks averaging one in two months over the last several months; a 30 percent rating is assigned with characteristic prostrating attacks occurring on an average of once a month over the last several months; a 50 percent rating is assigned when migraines with very frequent, completely prostrating headaches with prolonged attacks that are productive of severe economic inadaptability. These criteria are successive; thus, each criterion for a higher rating must be met in order to warrant such a rating. Johnson v. Wilkie, 30 Vet. App. 245, 253 (2018). In Pierce v. Principi, 18 Vet. App. 440 (2004), the Court held that, where the Board declined to award a 50 percent disability rating for a headache disorder without discussing the "interplay" among the regulations found at 38 C.F.R. § 4.3 (reasonable doubt resolved in favor of claimant), 38 C.F.R. § 4.7 (higher possible evaluation applies "if disability picture more nearly approximates the criteria for that rating[;] otherwise, the lower rating will be assigned"), and 38 C.F.R. § 4.21 (all the elements specified in a disability grade need not necessarily be found although "coordination of rating with impairment of function will, however, be expected in all instances"), the Board committed reasons or bases error. See Pierce, 18 Vet. App. at 445. In addition, the Court in Pierce acknowledged the Secretary's concession that the phrase "productive of severe economic inadaptability" in DC 8100 should be construed as either "producing" or "capable of producing" severe economic inadaptability. Id. at 445. On August 29, 2011, VA received correspondence from the Veteran that requested a prior traumatic brain injury (TBI) claim be reopened. The Veteran is not service-connected for TBI but as noted below his service-connected migraine headaches are related to a 2002 craniectomy. Thus, the RO construed this claim as an increased rating claim for service-connected migraine headaches, and the claim has been developed as such. (See October 2013 rating decision; February 2017 statement of the case). In any event, the rating period under consideration begins August 29, 2010 to include the one year look back period for increased rating claims. See 38 C.F.R. § 3.400(o). In August 2013, Dr. A, a treating psychiatrist, furnished a letter in support of the claim. His review of the Veteran's social history noted that the Veteran moved to Panama in 2011 due to economic and work difficulties. The Veteran was unable to work on a regular basis due to constant migraine headaches and chronic insomnia. May 2015 VA primary care records showed the Veteran had a history of seizures and chronic migraine. He experienced headaches two to three times per week with light sensitivity, but no vision changes. They were also occasionally accompanied by nausea and vomiting. The clinician assessed chronic migraines. He recommended medication and neurology follow up with his local provider in Panama. In March 2016, Dr. A issued another letter. In relevant part, he stated that the Veteran's occupational skills were impaired due to his neurological condition and that the Veteran was unable to work in competitive employment. In March 2016, Dr. A also completed a Mental Disorders Disability Benefits Questionnaire (DBQ). In relevant part, he stated that the Veteran's depressive disorder was affected by migraines that in turn affected his daily independent function. April 2018 VA primary care records showed that the Veteran reported chronic migraines usually occurring once a week. He was on medication and had treatment with a private neurologist. The clinician assessed chronic migraines and issued medication. In July 2018, Dr. A completed a headache DBQ. He assessed migraine and tension headaches. He noted that the Veteran had a craniotomy in July 2002 due to a brain condition. For headaches, Dr. A endorsed the presence of constant head pain, pulsating or throbbing head pain, pain localized to one side of head and pain that worsened with physical activity. Associated headache symptoms included nausea, vomiting as well as sensitivity to light and sound. The headache duration was one to two days and affected the left side. It occurred more than once a month. Dr. A assessed the Veteran as having very frequent prostrating and prolonged migraine attacks. He noted an associated scar affecting the left forehead. Dr. A reported that due to recurrent migraines plus depressive symptoms the Veteran was unable to work. In August 2018, Dr. A-U also completed a headache DBQ for the Veteran. He assessed migraines, cervicogenic headache and Arnold's neuralgia. He noted the medical history of an in-service July 2002 craniotomy that resulted in residual painful cranial neuropathy. He reviewed the Veteran's current medication regimen. The headache symptoms included pulsating or throbbing head pain and pain localized to one side. Non-headache symptoms included vision changes. The headaches typically lasted between one and two days and affected the left side of the head. Dr. A-U reported that the Veteran had very frequent prostrating and prolonged migraine attacks with a frequency of more than once a month. He noted the postoperative head scar. He commented that the headache disorder affected the Veteran's ability to work. In his September 2019 TDIU claim, the Veteran reported that he had not worked full time since September 2010 and left work because of service-connected migraine headaches. In January 2020, the Veteran had a VA headache examination with a nurse practitioner (NP). The NP diagnosed migraine with a 2002 onset. She noted the 2002 craniotomy and the Veteran's current medications. The Veteran currently experienced constant head pain and pain on both sides of his head. His headaches were accompanied by nausea, vomiting as well as sensitivity to light and sound. The headaches lasted less than a day and affected both sides of his head. Prostrating migraine episodes occurred once a month. However, the NP indicated that the Veteran did not have very prostrating and prolonged migraine attacks productive of severe economic inadaptability. She listed the functional impact as difficulty concentrating and focusing on tasks with prostrating headache. In February 2021, the Veteran testified at Board hearing. He reported that he last worked at a retail shipping company in 2009. At that time, he often missed half a week or work or more due to migraine episodes. He had an accommodating supervisor who understood his migraine problems. When he had severe migraine attacks, he would need to rest in a dark room. He stated that his migraine symptoms had been consistent since 2009 or so with between two or four attacks occurring each week. In 2011, he moved to Panama and sought regular treatment there. He had not worked since 2009. He did not believe he would be able to do so since he had significant attendance problems due to migraine attacks. For the following reasons, an increased rating of 50 percent for migraine headaches from September 1, 2010, the date the Veteran reported leaving work and which is within the one year look back period of the increased rating claim, is warranted. Again, a 50 percent rating for migraine headaches is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100. The term "prostrating attack" is not defined in regulation or case law. However, it can be defined as extreme exhaustion or powerlessness. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999) (quoting Diagnostic Code 8100 verbatim but not specifically addressing the definition of a prostrating attack); DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1531 (32d ed. 2012). At the February 2021 hearing, the Veteran reported that his migraine headache symptoms had been fairly consistent since 2009 or so. His symptoms included severe migraine attacks on a very frequent basis that required him to lie down and rest. When he worked, he missed work on a weekly basis due to migraine attacks. Similar reports of very frequent migraine attacks of this severity are noted in prior records. (See August 2013 Dr. A letter, May 2015 and April 2018 VA treatment records, July 2018 and August 2018 Headache DBQ reports). Thus, it can be said that the Veteran's headaches cause him powerlessness and are considered "prostrating" for VA purposes. Under DC 8100, a 50 percent rating also requires that headaches cause the Veteran severe economic inadaptability. The Veteran reported that he had not worked since September 2010 due to attendance issues caused by frequent migraine attacks. (September 2019 TDIU claim; February 2021 Board hearing transcript). Considering that the Veteran's reports about missing at least two days of work every week while he was working and his inability to work since then, it can be reasonably concluded that the Veteran's headaches caused him severe economic inadaptability. The evidence weighing against the claim consists of the January 2020 VA examination report. The NP acknowledged that the Veteran had severe headaches, but characterized the Veteran as only having prostrating migraine episodes once a month and not experiencing very prostrating and prolonged migraine attacks productive of severe economic inadaptability. Given the probative evidence noted above that suggests migraine headaches cause prostrating attacks on a weekly basis, the Board does not find the January 2020 VA examination report persuasive to show less frequent symptoms than indicated in other reports. The Veteran has stated that his headaches symptoms have been consistent since 2009 or 2010. See February 2021 Board hearing transcript. In this regard, "effective date should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that [the veteran's disability] first manifested." Swain v. McDonald, 27 Vet. App. 219, 224 (2015). The Board finds that the Veteran's symptoms more closely approximate very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability for the entirety of the appeal period from when he filed his increased rating claim on August 29, 2011. Meanwhile, the one year look back period from the August 29, 2011 increased rating claim must also be considered. 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o). The Veteran reported leaving work in September 2010 reportedly due to brain abscess residuals, identified as severe migraine headaches. See September 2019 TDIU claim. The Veteran's work reports at the February 2021 hearing do not precisely identify the date he left work but are reasonably close to the date reported on the September 2019 TDIU claim insofar as he reportedly stopped working in 2010. The fact that the Veteran left work in September 2010 due to service-connected migraine headaches may reasonably be construed as factually ascertainable evidence of an increase in disability. Thus, the evidence is at least evenly balanced as to whether an increase in service-connected migraine headaches occurred within the one year look back period. Accordingly, an increased rating of 50 percent for migraine headaches is warranted from September 1, 2010. Again, this is the date he permanently left work due to migraine headaches, and it is within a year of the August 29, 2011 increased rating claim. 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o). For the foregoing reasons, the evidence is thus at least evenly balanced as to whether the Veteran's service-connected migraine headaches from September 1, 2010 were very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a 50 percent rating from September 1, 2010 for service-connected migraine headaches is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The Board has considered the Veteran's claim and decided entitlement based on the evidence. Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his service-connected migraine headaches. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record); see also Holmes v. Wilkie, 33 Vet. App. 67, 73 (2020) (DC 8100 contemplates various manifestations of migraines by focusing on the overall functional impairment). Entitlement to TDIU on a schedular basis from September 1, 2010 TDIU may be assigned when a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16. In this case, the TDIU claim is part of an increased rating claim for service-connected migraine headaches, which dates to August 29, 2011. Harper v. Wilkie, 30 Vet. App. 356, 361-62 (2018). As noted above, the Veteran reported that his migraine symptoms have been stable since 2009 or 2010. On his September 2019 TDIU claim, he reports that he last worked full time in September 2010. Since the date he left work is within the one year look back period for the associated increased rating claim, the effective date of the TDIU claim is September 1, 2010. See Hurd v. West, 13 Vet. App. 449 (2000); 38 U.S.C. § 5110(b)(3). From September 1, 2010, the Veteran is service connected for the following disabilities: migraine headaches, now 50 percent; sinonasal polyposis, 30 percent; scars forehead/ scalp and left eyebrow/orbital for disfigurement, 10 percent prior to July 25, 2011 and 30 percent thereafter; scars forehead/ scalp and left eyebrow/orbital for pain, 20 percent from July 25, 2011; seizure disorder, 10 percent; Kienbock's disease, 10 percent; anosmia, 10 percent; and chronic rhinosinusitis, 10 percent. His combined disability rated from September 1, 2010 is now 80 percent or more. The Veteran's combined ratings meet the schedular TDIU rating criteria from September 1, 2010. 38 C.F.R. § 4.16(a). The Board notes that the Veteran is additionally service-connected for major depressive disorder from August 22, 2013 with a 70 percent rating and this additional rating results in 100 percent combined rating. 38 C.F.R. § 4.25. However, since the appeals period precedes this date the 100 percent combined award does not moot the issue of TDIU prior to August 22, 2013, and TDIU must be considered. See Harper, 30 Vet. App. at 361-62. In analyzing TDIU claims, the central inquiry is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" as having two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the following: The Veteran's history, education, skill, and training; whether the Veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the Veteran has the mental ability to perform the activities required by the occupation at issue. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The Veteran submitted VA Form 21-8940 Veteran's Application for Increased Compensation Based on Unemployability in September 2019. He stated that he last worked full time in September 2010. He had a college education. March 2016 private evaluation from Dr. A noted that the Veteran was unable to work due to neurological and psychiatric conditions. July 2018 Headaches DBQ from Dr. A stated that the Veteran was unable to work due to recurrent migraines. In February 2021, the Veteran testified at Board hearing. He reported that he last worked at a retail shipping company in 2009. At that time, he often missed half a week of work or more due to migraine episodes. He had an accommodating supervisor who understood his migraine problems. When he had severe migraine attacks, he would need to rest in a dark room. He stated that his migraine symptoms had been consistent since 2009 or so with between two or four attacks occurring each week. In 2011, he moved to Panama and sought regular treatment there. He had not worked since 2009. He did not believe he would be able to do so since he had significant attendance problems due to migraine attacks. From September 1, 2010, the Veteran no longer worked in his usual occupation as a shipping office assistant and was unable to resume such work. Thus, he meets the threshold economic component in Ray, supra, of unemployment. As to the non-economic TDIU component of physical capability in Ray, 31 Vet. App. at 73, the functional impairment from the service-connected migraine headaches, sinonasal polyposis, head scars, seizure disorder, Kienbock's disease left wrist, anosmia and chronic rhinosinusitis, affect the Veteran's physical endurance and attendance to complete work tasks. His headaches frequently require him to rest. His sinus / nasal type conditions would also require breaks to manage these conditions. Id. He has also diminished use of his left wrist due to Kienbock's disease. Given the above, the Board finds that from September 1, 2010, the Veteran has physical limitations associated with service-connected migraine headaches, sinonasal polyposis, head scars, seizure disorder, Kienbock's disease left wrist, anosmia and chronic rhinosinusitis. As to the non-economic mental capability in Ray, supra, the Veteran's pain attributable to his service-connected migraine headaches, in particular, pose mental impairment in completing occupational tasks in an office setting. The associated headache pain would greatly impair the Veteran's concentration on any occupational tasks. When considering the Veteran's work and education history and physical and mental impairments due to various service-connected disabilities, the evidence is at least in a state of relative equipoise as to whether from September 1, 2010, the Veteran is unable to secure and follow a substantially gainful occupation within the meaning of the applicable regulation. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("[A]pplicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner"); 38 C.F.R. § 4.16. For the foregoing reasons, the evidence is thus at least evenly balanced as to whether the Veteran's service-connected disabilities from September 1, 2010 precluded him from securing or following a substantially gainful occupation. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a TDIU from September 1, 2010 is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. REASONS FOR REMAND Entitlement to TDIU exclusively based on service-connected migraine headaches on an extraschedular basis from September 1, 2010 is remanded. The Veteran contends that his service-connected migraine headaches alone and without consideration to any additional disability preclude gainful employment. Even though the Veteran is now in receipt of a TDIU from September 1, 2010, the Board must consider this contention because a TDIU based on a single disability, as opposed to multiple disabilities, can satisfy the "service-connected disability rated as total" criterion of 38 U.S.C. § 1114(s)(1). See Bradley v. Peake, 22 Vet. App. 280, 293 (2008) ("section 1114(s) does not limit "a service-connected disability rated as total" to only a schedular rating of 100%, and the Secretary's current regulation permits a TDIU rating based on a single disability to satisfy the statutory requirement of a total rating"). His service-connected migraine headaches are now rated as 50 percent disabling from September 1, 2010. This rating does not meet the schedular TDIU criteria under 38 C.F.R. § 4.16(a). Thus, the TDIU claim based exclusively on service-connected migraine headaches may only be considered under 38 C.F.R. § 4.16(b). The Board is not permitted to adjudicate TDIU claims under 38 C.F.R. § 4.16(b) in the first instance. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The Board incorporates the above factual background indicating that the service-connected migraine headache disability alone would preclude gainful employment from September 1, 2010. The Board finds from this background raises the issue of unemployability exclusively due to service-connected migraine headaches from September 1, 2010. Give the above, entitlement to a TDIU exclusively for service-connected migraine headaches on an extraschedular basis under 38 C.F.R. § 4.16(b) must be referred to the Director, Compensation Service. Id. The matter is REMANDED for the following action: Refer the issue of entitlement to a TDIU exclusively for service-connected migraine headaches from September 1, 2010 to the Director of Compensation Service for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. D. Simpson, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.