Citation Nr: 21040957 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 15-21 288 DATE: July 7, 2021 ORDER Entitlement to a disability rating of 30 percent, and no higher, for migraine headaches, from February 4, 2010, to February 4, 2011, is granted. Entitlement to a disability rating for migraine headaches, on an extra-schedular basis, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability, from September 22, 2011, is denied. REMANDED Entitlement to a TDIU due to service-connected disability, prior to September 22, 2011, on an extra-schedular basis, is remanded. FINDINGS OF FACT 1. The Veteran did not timely challenge the Agency of Original Jurisdiction's (AOJ) June 2009 rating decision granting service connection for migraine headaches and assigning a 10 percent rating. 2. The claims file does not include a statement or communication from the Veteran, or other document, received by Department of Veterans Affairs, prior to February 4, 2011, that constitutes a claim for an increased disability rating or appeal to the Board of Veterans' Affairs (Board) June 2009 rating decision. 3. Resolving reasonable doubt in favor of the Veteran, it is factually ascertainable that his migraine headaches increased in severity within a year preceding the February 4, 2011 claim for an increased disability rating. 4. Resolving reasonable doubt in favor of the Veteran, the evidence of record shows prior to February 4, 2011, the Veteran's service-connected migraines manifested with characteristic prostrating attacks occurring on average once a month over last several months; completely prostrating and prolonged attacks productive of severe economic inadaptability has not been shown. 5. Effective September 22, 2011, the Veteran is in receipt of a 100 percent disability rating for major depressive disorder and has expressly withdrawn an appeal of a December 2019 Board decision denying special monthly compensation (SMC); there remain no questions of law or fact to be decided regarding entitlement to a TDIU, effective September 22, 2011. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating of 30 percent, but no higher, for service-connected migraines prior to February 4, 2011, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.14, 4.21, 4.124a, Diagnostic Code 8100 (2020). 2. The criteria for entitlement to a disability rating, on an extraschedular basis for migraine headaches, have not been met. 38 U.S.C. §§ 5107, 1155 (2012); 38 C.F.R. §§ 3.321, 4.16, 4.124a, Diagnostic Code 8100 (2020). 3. The appeal for entitlement to an extra schedular TDIU from September 22, 2011, is dismissed as moot. 38 U.S.C. § 7105(d)(5) (2012); 38 C.F.R. § 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1972 to October 1973. These matters come before the Board on appeal from a May 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board acknowledges that in his substantive appeal, the Veteran requested a travel board hearing before a Veterans Law Judge (VLJ). In June 2019, however, the Veteran, through his representative, withdrew his request for a hearing. 38 C.F.R. § 20.702(e). By way of history, in a December 2019 decision, the Board granted an earlier effective date of February 4, 2011 for a 50 percent disability rating for migraine headaches. In this decision, the Board also denied entitlement to special monthly SMC based on the need for aid and attendance (A&A) and remanded the issues of entitlement to a disability rating in excess of 50 percent for migraines headaches and entitlement to a TDIU on an extra-schedular basis. The Veteran appealed the December 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In November 2020, the Court vacated the Board's December 2019 decision and remanded the claims to the Board for actions consistent with the terms of a November 2020 joint motion for partial remand (JMPR) filed by the Veteran and the Secretary (parties). In the JMPR, the parties noted that the Veteran expressly waived appeal of the denial of entitlement to SMC A&A and requested that the Board not disturb the grant of entitlement to an earlier effective date of February 4, 2011, for the 50 percent disability rating for migraine headaches. The parties also found that the Board provided insufficient reasons and bases for denying an earlier effective date prior to February 4, 2011, for the grant of a 50 percent disability rating for migraine headaches and remanded the issue for adjudication. Regarding the issues of entitlement to a disability rating in excess of 50 percent for migraine headaches and entitlement to a TDIU, on an extra schedular bases, the Board finds that the remand directives of the December 2019 decision have been substantially completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are again before the Board for adjudication. 1. Entitlement to a disability rating of 30 percent, and no higher, for migraine headaches, from February 4, 2010, to February 4, 2011, is granted. The Veteran is seeking an earlier effective date for the grant of a 50 percent disability rating for migraine headaches. Specifically, he claims that he can no longer work full time due to his headaches. See September 2011 NOD. By way of history, in June 2009 the RO granted service connection for headaches at a rating of 10 percent, effective November 2007. The Veteran timely filed a notice of disagreement (NOD) and in May 2010, the RO issued a statement of the case (SOC). On February 7, 2011, VA received an intent to file a claim for an increase in the Veteran's migraine headaches disability rating. Thereafter, in the May 2011 rating decision currently on appeal, the RO continued the Veteran's 10 percent disability rating. While this appeal was in appellate status, in a May 2013 rating decision, the RO granted a 50 percent disability rating, effective April 25, 2013, and in an August 2014 rating decision, the RO granted an earlier effective date for the 50 percent disability rating of February 26, 2013. As noted above, in a December 2019 decision, the Board granted an earlier effective date of February 4, 2011, for the 50 percent disability rating for migraine headaches. Section 5110(a), title 38, United States Code, provides that "[u]nless specifically provided otherwise in this chapter, the effective date of an award based on an original claim... of compensation... shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." The implementing regulation, 38 C.F.R. § 3.400, similarly states that the effective date of service connection "will be the date of receipt of the claim or the date entitlement arose, whichever is the later." When an application for disability compensation is received within one year of the date of the Veteran's discharge or release from service, the effective date of such award shall be the day following the veteran's release. 38 U.S.C. § 5110(b)(1) (2012). The VA administrative claims process recognizes formal and informal claims. A formal claim is one that has been filed in the form prescribed by VA. 38 U.S.C. § 5101 (a) (2012); 38 C.F.R. § 3.151 (a) (2017). An informal claim may be any communication or action indicating intent to apply for one or more benefits under VA law. Thomas v. Principi, 16 Vet. App. 197 (2002); 38 C.F.R. §§ 3.1 (p), 3.155(a) (2016). An informal claim must be written, and it must identify the benefit being sought. Although a claimant need not identify the benefit sought "with specificity," some intent on the part of the veteran to seek benefits must be demonstrated. The United States Court of Appeals for the Federal Circuit has emphasized VA has a duty to fully and sympathetically develop a veteran's claim to its optimum. Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). This duty requires VA to "determine all potential claims raised by the evidence, applying all relevant laws and regulations," and extends to giving a sympathetic reading to all pro se pleadings of record. Generally, the effective date of an evaluation and award of compensation based on a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. If, however, it is factually ascertainable that an increase in disability had occurred within the one year immediately preceding the date of receipt of the claim, then the Veteran can receive this earlier effective date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the claim in this case was filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015, will be applied. Under the provisions of 38 C.F.R. § 3.157(b)(1), the date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. The provisions of this regulation apply only when such reports relate to examination or treatment of a disability for which service connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission. Following a review of the claims file, the Board finds that the record does not contain a document submitted by the Veteran between the May 2010 SOC and the Veteran's February 2011 intent to file a claim that indicates an either an intent to pursue a claim for an increased disability rating for migraine headaches or indicates an intent to appeal the June 2009 rating decision to the Board. Accordingly, the Veteran is not entitled to an earlier effective date based on the date of the receipt of the claim. The salient question is thus whether it is factually ascertainable that an increase in disability occurred within the one year immediately preceding the date of receipt of the claim. Here, affording the Veteran the benefit of the doubt, the Board finds that Veteran's disability worsened within the one-year period prior to his February 2011 claim. See Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Specifically, in a January 29, 2010 VA Examination, a few days prior to the appeal period, the Veteran reported daily headaches and that lasted for 4 hour(s). These headaches were mild, and he was able to go to work with medication. The symptoms of the condition included sharp pains around the neck and into the eyes although his ability to perform daily functions during flare-ups was not affected. In addition, a May 2010 VA treatment note indicates the Veteran complained of headache pain at a level of 7 of 10. Based on the foregoing and affording the Veteran the benefit of the doubt, the Board finds that it is factually ascertainable that the Veteran's disability worsened within a year prior to the claim. The Board next considers whether the Veteran is entitled to a higher disability rating for this period on appeal. A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 49. In this case, the Veteran has been assigned a 10 percent disability rating for his migraine headaches prior to February 4, 2011. His disability has been rated under 38 C.F.R. § 4.124a, Diagnostic Code 8199-8100. Under the Schedule of Ratings for neurological conditions and convulsive disorders, a noncompensable rating is warranted for migraine headaches with less frequent attacks; a 10 percent rating is warranted for migraine headaches with characteristic prostrating attacks averaging one in 2 months over the last several months; a 30 percent rating is warranted for migraine headaches with characteristic prostrating attacks occurring on an average once a month over the last several months; and the maximum 50 percent rating is warranted for migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The rating criteria do not define "prostrating," nor has the Court. See Fenderson v. West, 12 Vet. App. 119 (1999) (quoting Diagnostic Code 8100 verbatim but does not specifically address the matter of what is a prostrating attack.). According to Webster's New World Dictionary of American English 1080 (3d Coll. ed. 1986), "prostration" is defined as "utter physical exhaustion or helplessness." A very similar definition is found in Dorland's Illustrated Medical Dictionary 1367 (28th ed. 1994), in which "prostration" is defined as "extreme exhaustion or powerlessness." Completely prostrating means extreme exhaustion or powerlessness with essentially total inability to engage in ordinary activities. Although prostration is substantially defined by how the disabled individual subjectively feels and functions when having migraine symptoms, medical evidence is required to establish that the reported symptoms are due to migraines. The term "productive of severe economic adaptability" has not been clearly defined by regulations. For the purposes of Diagnostic Code 8100, "productive of" can either mean producing, or capable of producing. While migraines need not actually produce severe economic inadaptability, they must, at a minimum, be capable of producing severe economic inadaptability to warrant a 50 percent rating under Diagnostic Code 8100. Similarly, "economic inadaptability" does not equate to unemployability, as that would undermine the purpose of regulations pertaining to a TDIU. Pierce v. Principi, 18 Vet. App. 440 (2004); 38 C.F.R. § 4.16. Here, as noted above, the Veteran reported headache pain of 7 out of 10. See March 2010 VA Treatment Record. He was also found to experience daily headaches that were mild but included sharp pains around the neck and into the eyes. His ability to perform daily and/or occupational functions during flareups was not found to be affected. See January 2010 VA Examination. Having carefully considered the Veteran's competent, consistent, and credible contentions in light of the evidence of record and the applicable law, the Board concludes that the record supports a finding of characteristic prostrating attacks occurring on an average of once a month over the last several months associated with pain. The Board recognizes that the VA examiner of record did not describe the Veteran's headache attacks as prostrating. However, as noted above, "prostrating," is defined as "extreme exhaustion or powerlessness" and the Veteran described symptoms that caused his to have daily headaches requiring medication. Moreover, despite taking medication for her headaches, the Veteran's headaches caused pain. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Thus, affording the Veteran the benefit of the doubt, the Board finds that a disability rating of 30 percent is warranted for migraine headaches for the period on appeal prior to February 4, 2011. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The Board next finds that the Veteran's headaches do not warrant the next higher, 50 percent rating, as they have not been characterized by frequent, prolonged incapacitating attacks of headaches or by severe economic inadaptability. Prior to February 4, 2011, the Veteran noted difficulty and pain associated with his headaches, the VA examination of record during this appeal period does not indicate that the Veteran's migraine headaches have resulted in severe economic inadaptability. Rather, the VA examination of record shows that the Veteran does not have occupational impairment due to his migraine headaches. In reaching the above determinations, the Board has considered the Veteran's competent lay assertions, to include his reports of pain and his symptoms. The Veteran is certainly competent to describe his observations and the Board finds that her statements are credible. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (noting that personal knowledge is "that which comes to the witness through the use of his senses-that which is heard, felt, seen, smelled, or tasted"). However, the Board finds that the objective medical findings by skilled professionals, which incorporate the Veteran's competent assertions, provide the most persuasive evidence regarding the limitations posed by the Veteran's migraine headaches disability. Based on the foregoing, the Board finds that the symptoms of the Veteran's migraine headaches more nearly approximate the criteria for a 30 percent rating for the period on appeal. Accordingly, a disability rating of 30 percent, but no higher, for the Veteran's service-connected migraine headaches prior to February 4, 2011, is granted. 2. Entitlement to a disability rating for migraine headaches, on an extra-schedular basis, is denied. The Veteran is seeking entitlement to an extraschedular rating for his service-connected migraine headaches disability. See December 2019 Board Decision. By way of history, in a December 2019 decision, the Board granted a 50 percent disability rating, effective February 4, 2011, and remanded the claim for extraschedular consideration. As a preliminary matter, the Board acknowledges that the Veteran currently has the highest schedular rating available for migraine headache disability. There are no other diagnostic codes that are applicable. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). Accordingly, there is no legal basis upon which to award a higher schedular rating. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Therefore, the schedular component of the Veteran's increased rating claim must be denied. An extra-schedular rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the United States Court of Appeals for Veterans Claims (Court) explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under 38 C.F.R. § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that 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. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service (Director) to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. Id. Where the Board finds that an extra-schedular rating may be warranted based on the above factors, the Board cannot grant it in the first instance. Rather, it must remand the claim to the AOJ for referral to the Director. See Thun, supra. The Board recognizes that a Director's decision is not evidence, but, rather, the de facto AOJ decision, and the Board must conduct de novo review of this decision. See Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director's decision denying extraschedular consideration). In doing so, the Board is authorized to assign an extraschedular rating when appropriate. Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015). The Board also acknowledges that an earlier decision to refer the claim to the RO for extraschedular consideration is additionally not binding on whether the assignment of an extraschedular rating is warranted. A Board's decision to refer is based on a lower standard than the standard under 38 C.F.R. § 3.321(b)(1). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court addressed the different evidentiary standards in the context of an extraschedular TDIU referral. The Court held that the Board's determination to refer a case for extra-schedular consideration is a factual finding that does not bind the Board or require the Board to award an extra-schedular rating; however, if the Board denies the claim after referral, the Board "must provide adequate reasons or bases for deviating from its earlier referral decision." Turning to the evidence of record, December 2007 VA treatment record indicates that the Veteran reported chronic headaches, which he took Motrin to control. He reported that he had never been out of work due to his headaches and that the condition "doesn't bother him too much." A July 2009 private treatment record shows the Veteran reported experiencing headaches every day. In a January 29, 2010 VA Examination, the Veteran reported daily headaches and that lasted for 4 hour(s). These headaches were mild, and he was able to go to work with medication. The symptoms of the condition included sharp pains around the neck and into the eyes although his ability to perform daily functions during flare-ups was not affected. A May 2010 VA treatment note indicates the Veteran complained of headache pain at a level of 7 of 10. During the March 2011 VA examination, the Veteran reported that headaches occur when getting up in the morning and while going to sleep. He indicated that headaches were "now happening all the time." He reported that when headaches occur, he must stay in bed and is unable to do anything. He reported pain at a severity of 2 out of 10. He reported experiencing headaches an average of 8 times per day lasting for 10 days. He reported no additional symptoms. He reported taking hydrocodone 500 mg 4 times a day. Regarding functional impact, the Veteran reported that headaches interrupt all tasks. The examiner further stated that on occasional any occupational task may be minimally delayed secondary to the Veteran's headaches; however, this would not be a contraindication not to perform these tasks in his job as a machine operator. The examiner stated that the Veteran's daily activities are not affected by his condition. In a January 2012 correspondence, the Veteran reported that he suffers from migraines daily. He reported the headaches take his days and he is unable to function and unable to think about or focus on life in any aspect. In an April 2013 VA examination, the Veteran reported that his headaches resulted in sharp pain, pain in the eyes, memory issues, watery eyes, and ringing in the ears. He was found to have constant headache pain. His symptoms included vomiting, nausea, sensitivity to light, sensitivity to sound, changes in vision, and issues with balance. These pains last more than 3 days. The Veteran was found to have frequent prostrating and prolonged attacks. No other symptoms were noted. The functional impact of the Veteran's disability is limited concentration during headaches. In a February 2014 VA examination, the Veteran was found to have headaches attributable to his mental disorder, these headaches make him drowsy and make it hard to think. The Veteran was found to be able to manage his affairs. In an October 2015 VA examination, the Veteran reported headache pain that was 8 out of 10. His symptoms included nausea, sensitivity to light, sensitivity to sound, and changes in vision. His pain would last less than one day. He was not found to have prostrating or prolonged attacks. He would have non-migraine headaches more frequently than once per month. There were no other symptoms and no associated functional impact. In an October 2019 statement, the Veteran asserted that he has debilitating headaches, lasting at least three days. He must seclude himself in a dark room with ice packs on his eyes, and rest for the remainder of the day. In September 2020, the AOJ reviewed the evidence of record and issued a recommendation to the Director to deny entitlement to an extra schedular rating for migraine headaches. The AOJ explained that extra-schedular evaluations are assigned in cases where an exceptional or unusual disability picture is presented with such related factors as marked interference with employment or frequent periods of hospitalization that renders application of regular rating schedular standards impractical. No unusual or exceptional disability pattern has been demonstrated that would render application of the regular rating criteria as impractical. The evidentiary record does not demonstrate that the symptomatology consistently associated with the service-connected headaches supports an increased evaluation on a schedular or extra-schedular basis for any time period. The Director reviewed the evidence and the Veteran's contentions and, in November 2020, determined entitlement to an increased rating on an extraschedular basis for migraine headache disability was not established. After a careful review of all evidence of record, for the reasons detailed below, the Board finds that the symptomatology and occupational impairment caused by the Veteran's migraine headaches disability are specifically contemplated by the schedular criteria, and that the Veteran is not entitled to an extraschedular rating for his service-connected migraine headaches disability. Simply put, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. The Rating Schedule is intended to compensate for average impairment in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C. § 1155. "Generally, the degrees of disability specified [in the Rating Schedule] are considered 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. In this case, the Veteran's migraine headaches and associated symptoms are specifically contemplated by the rating schedule criteria discussed above. Specifically, as noted above, Diagnostic Code 8100 provides specific ratings based on the frequency and duration of prostrating attacks, and economic inadaptability due to migraine headaches and related attacks. Thus, symptoms such as pain, nausea, vomiting, sensitivity to light and sound, and changes in vision are specifically contemplated in the disability rating analysis as to whether the migraine headaches are prostrating and/or cause economic inadaptability. Therefore, the Board finds the Veteran does not have any symptoms or impairment from the service-connected migraine headache disability that are unusual or are different from those contemplated by the schedular rating criteria. The Board has therefore compared the level of severity and symptomatology of record of the Veteran's service-connected migraine headaches disability with the established criteria found in the rating schedule as detailed above and agrees with the Director's determination that this disability is fully addressed by the rating criteria under which this disability is rated. While the record shows that the Veteran's reported migraine headache disability symptoms, including pain, nausea, vomiting, sensitivity to light and sound, and changes in vision, may cause economic impairment, the Rating Schedule criteria specifically provides for ratings based both on the severity of the migraine headache episodes themselves, as well as the level of resulting economic impairment. In this case, the Veteran's migraine headaches and associated symptoms are specifically contemplated by the rating schedule criteria discussed above. Consequently, the rating schedule is adequate to evaluate the Veteran's disability picture. Therefore, the Board need not proceed to consider the second factor of Thun: whether there are other related factors such as marked interference with employment or frequent periods of hospitalization. Thun, 22 Vet. App. at115-16; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). In reaching this determination, the Board has also considered the Veteran's competent lay assertions, to include his subjective complaints of pain and his being unable to work due to his headaches. The Veteran is certainly competent to describe his observations and the Board finds that his statements are credible. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (noting that personal knowledge is "that which comes to the witness through the use of his senses-that which is heard, felt, seen, smelled, or tasted"). However, the Board finds that the objective medical findings by skilled professionals, which specifically incorporate the Veteran's competent assertions, provide the most persuasive evidence regarding the limitations posed by the Veteran's migraine headaches disability. Accordingly, the Board concludes that the evidence does not indicate an exceptional or unusual disability picture. As such, the preponderance of the evidence is against the Veteran's claim for a higher disability rating for service-connected migraine headaches on an extraschedular basis. In reaching this conclusion, the Board has considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to a TDIU due to service-connected disability, from September 22, 2011, is denied. The Veteran is seeking entitlement to an extraschedular TDIU due to his service-connected migraine headaches disability. See December 2019 Board Decision. Following a review of the evidence of record, the Board finds that, effective September 22, 2011, the claim of entitlement to a TDIU has been made moot by the award of a 100 percent schedular rating for major depressive disorder. Bradley v. Peake, 22 Vet. App. 280 (2008); May 2014 Rating Decision. A 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443 (1994); Swan v. Derwinski, 1 Vet. App. 20 (1990). Thus, if VA has found a Veteran to be totally disabled as a result of a particular service-connected disability, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis. Herlehy v. Principi, 15 Vet. App. 33 (2001) (request for TDIU moot where 100 percent schedular rating was awarded for the same period). The Board is cognizant of the fact that the receipt of a 100 percent schedular rating for a service-connected disability or disabilities does not necessarily moot the issue of entitlement to a TDIU because a TDIU rating may still form the basis for assignment of SMC pursuant to 38 U.S.C. § 1114 (s). Bradley v. Peake, 22 Vet. App. 280 (2008). VA's duty to maximize a claimant's benefits includes consideration of whether disabilities establish entitlement to SMC under 38 U.S.C. § 1114. Buie v. Shinseki, 24 Vet. App. 242 (2011). Specifically, SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent. Bradley v. Peake, 22 Vet. App. 280 (2008). However, in this case, the Veteran was assigned a 100 percent rating for major depressive disorder, effective September 22, 2011 and has expressly waived his appeal of denial of SMC in a December 2019 Board decision. See November 2020 JMPR. Accordingly, the issue of entitlement to an extra schedular TDIU from September 22, 2011, is moot and the claim for a TDIU, from September 22, 2011 is denied. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). REASONS FOR REMAND 1. Entitlement to an extra schedular TDIU due to service-connected disability, prior to September 22, 2011, is remanded. The Veteran is seeking entitlement to an extraschedular rating for his service-connected migraine headaches disability. See December 2019 Board Decision. In evaluating a veteran's employability, consideration may be given to their level of education, special training, and previous work experience, but not to their age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The fact that a veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether a veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). Following a review of the record, the Board finds that further development is necessary regarding the Veteran's claim for extra schedular TDIU. Specifically, there is insufficient evidence of record concerning the Veteran's education and employment history. A VA Form 21-8940 Application for Increased Compensation Based on Unemployability should be completed. Accordingly, a remand for further development is warranted. The matter is REMANDED for the following action: 1. Contact the Veteran and provide him a VA Form 21-8940 in connection to his claim for entitlement to TDIU, and request that he supply the requisite information. 2. If the Veteran responds, refer the Veteran's TDIU claim to the Director, Compensation Service, for consideration of TDIU on an extraschedular basis. Include a full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue 3. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, readjudicate the Veteran's extra schedular TDIU claim. If any benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC) and an adequate opportunity to respond. Thereafter, return the matter to the Board for further adjudication. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Kaufer, Associate 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.