Case A26011562

Summary

The Veteran, a Marine Corps Veteran who served from April 1985 to April 1989 and again from February 1991 to March 1991, passed away in August 2024. His surviving spouse appeals decisions regarding his insomnia and migraine headaches. The appeal originated from a May 2023 rating decision, with subsequent agency of original jurisdiction (AOJ) decisions in September and October 2023 addressing effective dates and secondary service connection for migraines. Initially, the AOJ assigned an effective date of July 17, 2023, for an increased rating for insomnia, but later corrected it to August 7, 2023, due to clear and unmistakable error. The AOJ also denied service connection for migraines secondary to tinnitus and insomnia. The Board initially dismissed the appeal due to the Veteran's death, but substitution was granted to the surviving spouse. The current appeal concerns the denial of an earlier effective date for the insomnia increase and the grant of service connection for migraines secondary to tinnitus and insomnia. The Board denied the earlier effective date for insomnia, finding the August 7, 2023 date appropriate as entitlement arose later than the claim. For migraines, the Board found the March 2023 VA opinion inadequate as it only addressed proximate causation and not aggravation. However, a private opinion from August 2023 found migraines were aggravated by service-connected tinnitus and insomnia, citing lay statements and medical studies. The Board found this private opinion probative and granted service connection for migraines secondary to tinnitus and insomnia.

Rationale

AOJ initially assigned July 17, 2023 effective date.; AOJ found clear and unmistakable error in effective date assignment.; New effective date of August 7, 2023 proposed and finalized.; Entitlement arose later than claim filing date.

Full Decision Text

Citation Nr: A26011562
Decision Date: 02/06/26	Archive Date: 02/06/26

DOCKET NO. 250916-605529
DATE: February 6, 2026

ORDER

Entitlement to an earlier effective date prior to August 7, 2023 for the increased rating of 30 percent for the service-connected insomnia disability is denied. 

Entitlement to service connection for migraine headaches, secondary to the service-connected tinnitus and insomnia, is granted.

FINDINGS OF FACT

1. Entitlement to an increased rating of 30 percent for the insomnia disability arose on August 7, 2023 after the claim for the increase was filed on July 17, 2023.

2. The Veteran had a current disability, diagnosed as generalized headaches and migraines including migraine variants, that was aggravated by the service-connected tinnitus and insomnia. 

CONCLUSIONS OF LAW

1. The criteria for entitlement to an earlier effective date prior to August 7, 2023 for the increased rating of 30 percent for the service-connected insomnia disability have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400.

2. The criteria for entitlement to service connection for migraine headaches, secondary to the service-connected tinnitus and insomnia, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310.  

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served in the United States Marine Corps from April 1985 to April 1989 and from February 1991 to March 1991. Regrettably, the Veteran died in August 2024. The appellant is his surviving spouse.

This appeal originated from a rating decision issued in May 2023. In July 2023 and August 2023, the Veteran submitted VA Forms 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of the insomnia and migraine headache issues most recently addressed in a May 2023 rating decision. In a September 2023 rating decision, the agency of original jurisdiction (AOJ) granted an increased rating of 30 percent for the service-connected insomnia from July 17, 2023. Another rating decision was issued in October 2023, the AOJ, in part, found that a clear and unmistakable error was committed in the assignment of the insomnia effective date and proposed a new effective date of August 7, 2023 and denied the claim for service connection for migraine headaches secondary to the service-connected tinnitus. In a March 2024 rating decision, the AOJ finalized the change of effective date of the increased rating for the insomnia from July 17, 2023 to August 7, 2023. 

Unfortunately, during the pendency of the appeal, the Veteran passed away in August 2024. Nonetheless, a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) was filed in October 2024 and the Direct Review docket was elected.

In April 2025, the Board dismissed the appeals for entitlement to service connection for migraine headaches, secondary to the service-connected tinnitus, and entitlement to an earlier effective date prior to August 7, 2023 for the increased rating of 30 percent for the service-connected insomnia disability. The Board explained that, due to the death of the Veteran, the Board had no jurisdiction to adjudicate the merits of the appeals. Substitution was subsequently granted to the Appellant in September 2025. 

In September 2025, VA sent the Appellant a BVA Letter explaining that since substitution was granted in September 2025, she has the option of filing a Notice of Disagreement within 70 days to appeal the issue of migraine headaches and 204 days to appeal the issue of entitlement to an earlier effective date for increased rating for insomnia disorder as those were the remaining days the Veteran had to file the appeals before he passed away. 

The Appellant subsequently filed a Decision Review Request: Board Appeal (Notice of Disagreement), VA Form 10182, in September 2025 and elected Direct Review.  

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with
 remaining days the Veteran had to file the appeals before he passed away. 

The Appellant subsequently filed a Decision Review Request: Board Appeal (Notice of Disagreement), VA Form 10182, in September 2025 and elected Direct Review.  

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

1. Entitlement to an earlier effective date prior to August 7, 2023 for the increased rating of 30 percent for the service-connected insomnia disability is denied. 

Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. The effective date of an award of service connection shall be the day following the date of discharge or release if application is received within one year from such date of discharge or release. Otherwise, the effective date is the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Lynch v. McDonough, 21 F.4th 776 (2021).

Upon review of the record, in a September 2023 rating decision, the AOJ initially assigned an effective date of July 17, 2023 based on the date the July 2023 Supplemental Claim Application was filed. In an October 2023 rating decision, the AOJ found that clear and unmistakable error occurred in assigning an effective date of July 17, 2023 and proposed a new effective date of August 7, 2023, the date of a VA examination in which entitlement arose. In a March 2024 rating decision, the AOJ finalized the change of effective date of increase rating from July 17, 2023 to August 7, 2023. 

In the August 2023 VA examination, the VA examiner diagnosed insomnia. The VA examiner found that the disability manifested in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, documenting symptoms of chronic sleep impairment and mild memory loss (such as forgetting names, directions, or recent events). The Board notes that this warrants a 30 percent rating under 38 C.F.R. § 4.130, Diagnostic Code 9326.

The Board finds that, as entitlement to increase arose later than the claim for increase, the effective date of August 7, 2023 is appropriate under 38 C.F.R. § 3.400. As such, the claim for an earlier effective date prior to August 7, 2023 for the increased rating of 30 percent for the service-connected insomnia disability is denied. 

2. Entitlement to service connection for migraine headaches, secondary to the service-connected tinnitus and insomnia, is granted.

Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires medical evidence sufficient to show that a current disability exists and that the current disability was either caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995).

The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104 (a); Baldwin v. West, 13 Vet. App. 1 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough
3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995).

The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104 (a); Baldwin v. West, 13 Vet. App. 1 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F. 4th 776 (Fed. Cir. 2021).

The Board finds that the Veteran has a current disability, diagnosed as generalized headaches and migraines including migraine variants. See March 2023 VA Examination; October 2023 VA Examination. 

VA issued a secondary service connection opinion in March 2023. The VA examiner opined that it is less likely than not that the Veteran's current disability was proximately due to the service-connected tinnitus. The VA examiner did not provide an opinion addressing secondary service connection based on aggravation. 

Consequently, the Board finds that the March 2023 VA opinion is not adequate. The VA examiner did not render the required aggravation opinion pursuant to 38 C.F.R. § 3.310. Notably, the VA examiner only filled out section IV for secondary service-connection, which documented a negative secondary service opinion based on proximate causation, but not a secondary service-connection opinion based on aggravation in section VI.  Additionally, the Board cannot extract an aggravation opinion from the reasoning provided.

In an August 2023 private opinion, the private examiner found that the migraines and headaches were aggravated by the service-connected tinnitus and insomnia. The private examiner cited to lay statements made by the Veteran as well as medical studies describing the shared pathophysiological mechanisms that link the headaches to the tinnitus. 

The Board finds that the current disability was aggravated by the service-connected tinnitus and insomnia based on the August 2023 private opinion as it is the only probative secondary service connection opinion of record. 

Based on the foregoing, the Board finds that the criteria for entitlement to service connection for migraine headaches, secondary to the service-connected tinnitus and insomnia, have been met. 

 

David H. Robertson

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Costantino, Danielle K.

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.