MIGRAINE

Summary

The Veteran, who served in the Navy from July 2014 to October 2015, appeals the denial of service connection for headaches and a total disability evaluation based on individual unemployability (TDIU). The Board granted service connection for tension headaches as secondary to the Veteran's already service-connected back disabilities. The decision noted that the Veteran is service-connected for thoracolumbar scoliosis, lumbar levoscoliosis, and thoracic disc herniations. The Board found that the evidence regarding the nexus between the headaches and back condition was in approximate balance, with a negative VA opinion and a positive private opinion from S.P., M.D. Applying the benefit of the doubt, the Board found the criteria for secondary service connection met. However, the Veteran's claim for TDIU was denied. The Board reviewed the Veteran's employment history, education, and reported functional limitations due to her service-connected disabilities. While acknowledging the Veteran's physical limitations and headaches impacting concentration, the Board found that her ability to perform part-time sedentary work and her recent college education indicated she could secure and follow substantially gainful employment. The Board concluded that her service-connected disabilities alone did not render her unemployable.

Rationale

Service connection granted as secondary to service-connected back disabilities.; Conflicting medical opinions (negative VA, positive private) resulted in approximate balance.; Benefit of the doubt applied to grant service connection.

Full Decision Text

Citation Nr: A26008790
Decision Date: 01/29/26	Archive Date: 01/29/26

DOCKET NO. 250811-572288
DATE: January 29, 2026

ISSUES

1. Entitlement to service connection for headaches.

2. Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities.

ORDER

Entitlement to service connection for tension headaches is granted.

Entitlement to a TDIU is denied.

FINDINGS OF FACT

1. The Veteran's current tension headaches disability has been shown by competent evidence to be approximately at least as likely as not related to her service-connected back disability.

2. Based on the evidence of record, the Veteran's service-connected disabilities do not preclude her from obtaining or maintaining substantially gainful employment consistent with her level of education and work history.

CONCLUSIONS OF LAW

1. The criteria for service connection for tension headaches, as secondary to service-connected thoracolumbar scoliosis, lumbar levoscoliosis, and thoracic disc herniations, have been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3.310.

2. The criteria for entitlement to a TDIU due to service-connected disabilities have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.19.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from July 2014 to October 2015.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2024 rating decision by a Department of Veterans Affairs (VA) regional office (RO). Notice of that decision was sent on August 12, 2024. The Veteran timely appealed the rating decision by submitting an August 11, 2025 VA Form 10182 and requested the evidence submission docket. Therefore, the Board may only consider the evidence of record at the time of the July 2024 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303.

If evidence was submitted either: (1) during the period after the AOJ issued the decision and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801.

1. Entitlement to service connection for tension headaches is granted.

The Veteran asserts she is entitled to service connection for her headaches as secondary to her service-connected back disability.

Service connection may be granted on a secondary basis for a disability which is proximately due to, or the result of, an already service-connected disability. 38 CFR § 3.310. Establishing secondary service connection requires evidence of: (1) a current disability (for which secondary service connection is sought); (2) an already service-connected disability; and (3) that the claimed disability was either caused or aggravated by the already service-connected disability. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).

Regarding the first element, a current disability, VA has conceded the Veteran has a current diagnosis of tension headaches. Under the Appeals Modernization Act (AMA), the Board is bound by favorable findings unless they are rebutted by clear and unmistakable evidence. 38?C.F.R. §§?3.104(c); 20.801(a). After a thorough review of the Veteran's electronic claim file, the Board concludes that such clear and unmistakable evidence does not exist. Therefore, the first element of secondary service connection is met.

Regarding the second element, another already service-connected disability, the Board acknowledges that the Veteran is service-connected for multiple disabilities including thoracolumbar scoliosis, lumbar levoscoliosis, and thoracic disc herniations. Therefore, the second element is met.

Regarding the third element, an etiological nexus between the Veteran's current disability and her service-connected disabilities, the evidence conflicts.

The etiological evidence of record consists of a negative May 2023 VA opinion and a positive September 2025 private opinion by S.P., M.D.. See May 
 thorough review of the Veteran's electronic claim file, the Board concludes that such clear and unmistakable evidence does not exist. Therefore, the first element of secondary service connection is met.

Regarding the second element, another already service-connected disability, the Board acknowledges that the Veteran is service-connected for multiple disabilities including thoracolumbar scoliosis, lumbar levoscoliosis, and thoracic disc herniations. Therefore, the second element is met.

Regarding the third element, an etiological nexus between the Veteran's current disability and her service-connected disabilities, the evidence conflicts.

The etiological evidence of record consists of a negative May 2023 VA opinion and a positive September 2025 private opinion by S.P., M.D.. See May 2023 C&P Exam; November 2025 Medical Treatment Record - Non-Government Facility. The VA examiner reasoned that there is no correlation between thoracolumbar scoliosis and headaches. In contrast, S.P. reasoned that there can be a link as supported by medical literature, and that this was sufficient to support a nexus in this case given the close proximity in time between the onset of the Veteran's back and headache disabilities. Ultimately this results in an approximate balance of the competent medical nexus evidence of record. Therefore, the Board finds that the nexus evidence indicates it is at least as likely as not that a nexus exists between the Veteran's headaches and her back disability. As a result, the third and final element of secondary service connection is met. 

In summation, the Board finds that the Veteran's current tension headaches disability has been shown by competent evidence to be approximately at least as likely as not related to her service-connected back disability. Therefore, the criteria for service connection for tension headaches, as secondary to service-connected thoracolumbar scoliosis, lumbar levoscoliosis, and thoracic disc herniations, have been met. Consequently, service connection must be granted.

2. Entitlement to a TDIU is denied.

The Veteran asserts she is entitled to a TDIU. 

It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A total disability exists where there is any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. The referenced "total disability" is referred to in this decision using the acronym "TDIU" which stands for total disability rating based upon individual unemployability.

A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014).

An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Rice v. Shinseki, 22 Vet. App. 447 (2009); see also Todd at 85-86. It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Put another way, the overriding issue is unemployability, not unemployment. The sole fact that a veteran is unemployed for non-service connected reasons, or has difficulty obtaining employment because of economic circumstances, is not enough for a TDIU grant. As indicated above, the Veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). 

The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers
 App. 361 (1993). Put another way, the overriding issue is unemployability, not unemployment. The sole fact that a veteran is unemployed for non-service connected reasons, or has difficulty obtaining employment because of economic circumstances, is not enough for a TDIU grant. As indicated above, the Veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). 

The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to 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. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and non-exertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id.

Marginal employment may also be held to exist on a facts found basis when a Veteran's earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a)(5). Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop. Id. "Protected environment" is defined as "a lower-income position that, due to the Veteran's service-connected disability or disabilities, is shielded in some respect from competition in the employment market." LaBruzza v. McDonough, 37 Vet. App. 111 (2024). Employment is not considered to be in a protected environment simply because a veteran receives workplace accommodations for service-connected disabilities or remains employed despite being occupationally impaired. Id. The income that a veteran earns from employment "must be relatively low" for a veteran to qualify as being employed in a protected environment. Id. 

Entitlement to a TDIU is a legal determination, not a medical one. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Medical examiners may provide evidence regarding functional and occupational impairment, but the Board must decide whether a veteran may "secure and follow a substantially gainful occupation" based on all evidence of record. See Delrio v. Wilkie, 32 Vet. App. 232 (2019).

A TDIU can be awarded on a schedular or extraschedular basis. An award of schedular TDIU requires that, if there is only one service-connected disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Board notes that the Veteran does not meet the requisite requirements for schedular TDIU, however, the ultimate analysis for determining whether a TDIU is warranted is the same for both schedular and extraschedular TDIU and the Board will proceed with a TDIU analysis on an extraschedular basis. The Board also notes that there is no longer a requirement to remand for a referral to the Director of Compensation Service for an extraschedular TDIU. See Witkowski v. Collins (24-0640) (Vet. App. Oct. 21, 2025). 

The Veteran is service-connected for the following disabilities: left lower extremity radiculopathy associated with thoracolumbar scoliosis; right lower extremity radiculopathy associated with thoracolumbar scoliosis; and thoracolumbar scoliosis, lumbar levoscoliosis, and thoracic disc herniations. In addition, based on the prior section, the Veteran is also now service-connected for tension headaches. 

Turning to the relevant evidence of record, and beginning with the economic component, the Veteran submitted a February 2023 statement where she asserted she could not work due to her disabilities. See February 2023 Correspondence. The Veteran reported she graduated from a university in October of 2022 and was
The Veteran is service-connected for the following disabilities: left lower extremity radiculopathy associated with thoracolumbar scoliosis; right lower extremity radiculopathy associated with thoracolumbar scoliosis; and thoracolumbar scoliosis, lumbar levoscoliosis, and thoracic disc herniations. In addition, based on the prior section, the Veteran is also now service-connected for tension headaches. 

Turning to the relevant evidence of record, and beginning with the economic component, the Veteran submitted a February 2023 statement where she asserted she could not work due to her disabilities. See February 2023 Correspondence. The Veteran reported she graduated from a university in October of 2022 and was no longer receiving a housing allowance for attending school. She reported her only non-VA disability income was from assisting in social media management on a part-time basis for a local small business. She reported her monthly income from this job as $1,600. 

The Veteran then submitted a VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability in May 2023. She reported the date she last worked full-time and the date her disabilities affected full-time employment as October 1, 2018. She did not list a date for when she became too disabled to work. She reported her highest yearly earnings as $23,007 in 2017 as an Assistant Manager. She reported her income for the past twelve months as $19,200 with a current monthly income of $1,600. 

For employment history, the Veteran reported working as an Assistant Manager at Orange Theory Fitness from April 2017 to October 2018. She noted working 40 hour weeks with a highest gross monthly earnings of $1,917 and 5 days lost from illness. 

The Veteran reported next working as an Event Ambassador for Deschutes Brewery from April 2019 to March 2020. She noted working 12 hour weeks with a highest gross monthly earnings of $816 and zero days lost from illness.

The Veteran next reported working as a self-employed Wedding Planner at Willoweddings beginning May 2020. She noted working 20 hour weeks with a highest gross monthly earnings of $1,600 with zero days lost from illness.

The Veteran indicated she did not leave her last job because of her disability. 

The Veteran next submitted a completed July 2023 VA 21-4192 Request for Employment Information in Connection With Claim for Disability Benefits. See VA 21-4192 received August 2023. The Veteran indicated she works on a "as can do" basis as in wedding coordination beginning in February 2021. She reported working 4 hours per day 25 days per week. She listed the last date she worked as being in July 2023. The Veteran reported earning $39,275 during the twelve months preceding her last date of employment, and that the gross amount of her last payment in July 2023 was $1,800. The Veteran noted that she works fully remote in order to accommodate her disability. 

Regarding the non-economic component, as indicated above the Veteran reported completing an unspecified degree at a university in 2022. See February 2023 Correspondence. Similarly, in her May 2023 VA 21-8940 she reported her highest completed level of education as four years in college. 

Turning to physical impairment impacting occupational functioning, a June 2015 VA examination reported that the Veteran's back disability renders her "unable to fulfill the physical requirements of the Navy." June 2015 C&P Exam. 

At a March 2019 VA examination, the examiner described the functional impact of the Veteran's back disability as "moderate at most." March 2019 C&P Exam. However, the Board notes that the examiner then describes how they cannot confirm the severity as described by the Veteran due to an inconsistency with performance during the examination. Therefore, the Board assigns this examination little probative weight.

Next, in June 2020 a VA examiner noted that "no physical lifting carrying activity would be tolerated due to patient's back and radicular components." June 2020 C&P Exam. The examiner reported that sedentary employment was not precluded and noted that the Veteran was a "stay-at-home mom" and indicated that the Veteran's disabilities should not change this. 

In a February 2021 statement, the Veteran reported that she cannot lift anything heavier than groceries, has a limited ability to do house or yard work, and described a day where she had to spend the whole day in bed. See February 2021 Affidavit. The Veteran attributed this impairment to her back disability and the pain in her legs. 

In a February 2023 statement, the Veteran reported that she cannot work full-time due to her disability. See February 2023 Correspondence. However, the Board notes the Veteran
&P Exam. The examiner reported that sedentary employment was not precluded and noted that the Veteran was a "stay-at-home mom" and indicated that the Veteran's disabilities should not change this. 

In a February 2021 statement, the Veteran reported that she cannot lift anything heavier than groceries, has a limited ability to do house or yard work, and described a day where she had to spend the whole day in bed. See February 2021 Affidavit. The Veteran attributed this impairment to her back disability and the pain in her legs. 

In a February 2023 statement, the Veteran reported that she cannot work full-time due to her disability. See February 2023 Correspondence. However, the Board notes the Veteran did not provide further details.

Lastly, in May 2023 a VA examiner noted that the Veteran's headache condition is at least as likely as not sufficient to impact the Veteran's work because it affects her concentration. See May 2023 C&P Exam. 

Regarding mental impairment impacting occupational functioning, the Veteran is not service-connected for a mental disability. 

After a thorough review of the evidence of record, the Board finds that the Veteran's service-connected disabilities alone do not prevent her from securing and maintaining substantially gainful employment. The Board reiterates that the key inquiry here is unemployability due to service-connected disabilities, not unemployment. The record in this case does not contain evidence to indicate why the Veteran's service-connected disabilities prevent her from securing appropriate alternative sedentary employment. It is clear that the Veteran cannot perform physically demanding jobs. However, her employment history indicates she can successfully perform at a part-time sedentary position. There is no indication in the evidence as to why the Veteran's service-connected disabilities otherwise prevent the Veteran from obtaining similar full-time employment. The Board acknowledges that the Veteran's headaches impact her concentration, however, this does not appear to be of a severity as to preclude employability as the Board notes the Veteran still successfully maintains part-time employment. It is therefore less likely than not that the Veteran's service-connected disabilities alone prevent her from finding substantially gainful employment.

(Continued on next page.)

In summation, the Board finds that the Veteran's service-connected disabilities do not preclude her from obtaining or maintaining substantially gainful employment consistent with her level of education and work history. Therefore, the criteria for entitlement to a TDIU due to service-connected disabilities have not been met. Consequently, entitlement to a TDIU must be denied.

The Board is grateful for the Veteran's service, and this decision is not meant to detract from that service. However, the Board notes that it is bound by the fair application of the law to the evidence before it.

 

 

Michael A. Pappas

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	E. J.

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.