HIP IMPAIRMENT OF

MICHAEL MARTIN · 2026 · Case ID: A26031413

GRANTED

Summary

The veteran, who served in the Navy from December 2018 to December 2023 as an Electrician's Mate, sought increased disability ratings for service-connected bilateral hip tendinitis, migraines, cervical strain, and lumbosacral strain. The veteran did not attend scheduled VA examinations but submitted private medical examinations. The Board found the private examinations competent and credible, and slightly more persuasive than the VA examination due to marginal errors and internal inconsistencies in the VA's report. The Board determined that the evidence, when viewed in approximate balance, supported higher ratings for the veteran's conditions. For bilateral hip tendinitis, the Board found limitations in flexion warranted a 30 percent rating, and separate ratings for limitation of extension and abduction were also granted. For migraines, the Board found the veteran's symptoms, including prostrating attacks occurring more than once a month, met the criteria for a 30 percent rating. For cervical strain, the Board found the evidence supported a 30 percent rating based on limited forward flexion and pain. For lumbosacral strain, the Board found the evidence supported a 40 percent rating based on limited forward flexion and pain. All increased ratings were granted.

Rationale

Private examination found flexion limited to 20 degrees.; Board found evidence in approximate balance for 30% rating.; Resolving reasonable doubt in favor of the veteran.

Service Branch

NAVY

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

5252

Docket No.

250218-519662

Full Decision Text

Citation Nr: A26031413
Decision Date: 04/07/26 Archive Date: 04/07/26

DOCKET NO. 250218-519662
DATE: April 7, 2026

ORDER

Entitlement to an increased rating of 30 percent, but no higher, for left hip tendinitis, limitation of flexion, is granted.

Entitlement to a separate disability rating for left hip tendinitis, limitation of extension, is granted.

Entitlement to a separate disability rating for left hip tendinitis, impairment of thigh, limitation of abduction, is granted.

Entitlement to an increased rating of 30 percent, but no higher, for right hip tendinitis, limitation of flexion, is granted.

Entitlement to a separate disability rating for right hip tendinitis, limitation of extension, is granted.

Entitlement to a separate disability rating for right hip tendinitis, impairment of thigh, limitation of abduction, is granted.

Entitlement to an increased rating of 30 percent, but no higher, for migraines, including migraine variants, is granted.

Entitlement to an increased rating of 30 percent, but no higher, for cervical strain, is granted.

Entitlement to an increased rating of 40 percent, but no higher, for lumbosacral strain, is granted.

FINDINGS OF FACT

1. Throughout the period on appeal, the Veteran's left hip tendinitis manifested with pain on flexion with limitation of flexion to 20 degrees.

2. Throughout the period on appeal, the Veteran's left hip tendinitis manifested with pain on extension with limitation of extension to 5 degrees.

3. Throughout the period on appeal, the Veteran's left hip tendinitis manifested with pain on abduction with limitation of abduction to 10 degrees.

4. Throughout the period on appeal, the Veteran's right hip tendinitis manifested with pain on flexion with limitation of flexion to 20 degrees.

5. Throughout the period on appeal, the Veteran's right hip tendinitis manifested with pain on extension with limitation of extension to 5 degrees.

6. Throughout the period on appeal, the Veteran's right hip tendinitis manifested with pain on abduction with limitation of abduction to 10 degrees.

7. Throughout the period on appeal, the Veteran's migraines, including migraine variants, manifested with characteristic prostrating attacks occurring on average once a month over last several months.

8. Throughout the period on appeal, the Veteran's cervical strain manifested as no worse than forward flexion of the cervical spine 15 degrees or less; or favorable ankylosis of the entire cervical spine.

9. Throughout the period on appeal, the Veteran's lumbosacral strain manifested as no worse than forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.

CONCLUSIONS OF LAW

1. The criteria for a rating of 30 percent, but no higher, for left hip tendinitis, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5252.

2. The criteria for a separate rating for left hip tendinitis, limitation of extension, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5251.

3. The criteria for a separate rating for left hip tendinitis, impairment of thigh, limitation of abduction, have been met. have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5253.

4. The criteria for a rating of 30 percent, but no higher, for right hip tendinitis, limitation of flexion, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5252.

5. The criteria for a separate rating for right hip tendinitis, limitation of extension, have been met. 38 U.S.C
, 4.7, 4.40, 4.45, 4.71a, DC 5253.

5. The criteria for a separate rating for right hip tendinitis, limitation of extension, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5251.

6. The criteria for a separate rating for right hip tendinitis, impairment of thigh, limitation of abduction, have been met. have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5253.

7. The criteria for a rating of 30 percent, but no higher, for migraine, including migraine variants, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8100.

8. The criteria for a rating of 30 percent, but no higher, for cervical strain, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5237.

9. The criteria for a rating of 40 percent, but no higher, for lumbosacral strain, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5237.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the Navy from December 2018 to December 2023 to include 1 year, 2 months and 8 days of sea service. The Veteran was an Electrician's Mate.

This matter comes before the Board of Veterans' Appeals (Board) from a February 2025 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), the Agency of Original Jurisdiction (AOJ).

The Veteran timely submitted a VA Form 10182 Decision Review Request: Board Appeal (Notice of Disagreement) (NOD) in February 2025 and selected the Direct Review option. Therefore, any evidence submitted after the March 2025 rating decision, cannot be considered by the Board.? 38 C.F.R. §§ 20.300, 20.301, 20.801.?

Increased Ratings

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Individual disabilities are assigned separate diagnostic codes. See U.S.C. §1155; 38 C.F.R. § 4.1. When there is a question as to which of two evaluations applies, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for the rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

In evaluating the severity of a disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994).

When an appeal arises from the initially assigned disability rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West,

12 Vet. App. 119 (1999). Staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms or differing levels of severity can be identified. Hart
1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994).

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; 39 C.F.R. §§ 3.102.

Examinations

As an initial matter, the Board notes that the Veteran did not appear for any of her scheduled VA examinations in February 2025 and declined the examinations cancelling each of them. See February 2025 Exam Requests.

Under 38 C.F.R. § 3.655(a), when entitlement to a benefit cannot be established without a current VA examination or reexamination, and a claimant, without good cause, fails to report for such examination or reexamination, action shall be taken in accordance with 38 C.F.R. § 3.655(b) or (c) as appropriate. Examples of good cause for failure to report for a VA examination include illness or hospitalization of the claimant and death of an immediate family member. 38 C.F.R. §3.655(a). Under 38 C.F.R. § 3.655(b), when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record, but when a claimant fails to report without good cause for an examination scheduled in conjunction with a reopened claim or a claim for increase, the claim shall be denied.

Further, VA has discretion to schedule a veteran for a medical examination where it deems an examination necessary to make a determination on the veteran's claim. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005); see also Shoffner v. Principi, 16 Vet. App. 208, 213 (2002) (holding that VA has discretion to decide when additional development is necessary). While the VA system is non-adversarial and pro-claimant, a veteran still has an obligation to assist in developing his claim, and VA to ensure there is a complete and accurate record on which to render an informed decision. See Turk v. Peake, 21 Vet. App. 565, 568 (2008); Douglas v. Shinseki, 23 Vet. App. 19 (2009).

That notwithstanding, the Board observes that the Veteran submitted private examination reports conducted by her local doctor, J.M., M.D, Family Medicine, Sports Medicine. See September 2024 Headaches Examination, September 2024 Back Conditions Examination, September 2024 Neck Conditions Examination, September 2024 Hip Conditions Examination. The Board finds these examinations to be competent and credible, and, as such, sufficient for rating purposes. Additionally, the Board acknowledges that VA examinations were conducted for each of the claims in the year preceding the new claim for increased rating filed in October 2024.

1. Evaluation of left hip tendinitis, limitation of flexion

2. Entitlement to a separate disability rating for left hip tendinitis, limitation of extension

3. Entitlement to a separate disability rating for left hip tendinitis, impairment of thigh, limitation of abduction

4. Evaluation of right hip tendinitis, limitation of flexion

5. Entitlement to a separate disability rating for right hip tendinitis, limitation of extension

6. Entitlement to a separate disability rating for right hip tendinitis, impairment of thigh, limitation of abduction

Diagnostic Code

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use

6. Entitlement to a separate disability rating for right hip tendinitis, impairment of thigh, limitation of abduction

Diagnostic Code

and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria.")

Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and painful joints are entitled to at least the minimum compensable rating for the joint. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." Further, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination.

Disabilities of the hip and thighs are rated under DCs 5250-5255. 38 C.F.R. § 4.71a.

The Veteran is currently rated under DC 5252 for limitation of flexion for her bilateral hips.

Under DC 5251, a 10 percent rating may be assigned for limitation of extension of the thigh to 5 degrees. 38 C.F.R. § 4.71a, DC 5251.

Under DC 5252, a 10 percent disability evaluation is assigned for flexion of the thigh limited to 45 degrees. For the next higher 20 percent disability evaluation, there must be limitation of flexion to 30 degrees. A 30 percent rating is assigned for flexion limited to 20 degrees. The highest schedular rating of 40 percent is assigned for flexion limited to 10 degrees. 3 8 C.F.R. § 4.71a, DC 5252.

Under DC 5253, a 20 percent rating is assigned for abduction loss beyond 10 degrees, a 10 percent for adduction resulting in the inability to cross the legs, and a 10 percent for rotation where the affected leg is limited to 15 degrees of toe out of rotation. 38 C.F.R. § 4.71a, DC 5253.

At the onset, the evidence does not show ankylosis, impairment of the flail joint or femur at any time during the period on appeal, and thus the provisions of DCs 5250, 5254 and 5255 are not applicable. 38 C.F.R. § 4.71a, DCs 5250, 5254, and 5255.

Normal range of motion for the hips consists of flexion to 125 degrees, extension to 0 degrees, and abduction to 45 degrees. 38 C.F.R. § 4.71a, Plate II.

Analysis

The Veteran seeks an increased disability rating for her service-connected bilateral hip tendinitis. See October 2024 VA Form 21-526EZ, February 2025 NOD.

As demonstrated by the procedural history above, the Veteran has continuously pursued her increased rating claim since the October 202
s 5250, 5254 and 5255 are not applicable. 38 C.F.R. § 4.71a, DCs 5250, 5254, and 5255.

Normal range of motion for the hips consists of flexion to 125 degrees, extension to 0 degrees, and abduction to 45 degrees. 38 C.F.R. § 4.71a, Plate II.

Analysis

The Veteran seeks an increased disability rating for her service-connected bilateral hip tendinitis. See October 2024 VA Form 21-526EZ, February 2025 NOD.

As demonstrated by the procedural history above, the Veteran has continuously pursued her increased rating claim since the October 2024 VA Form 21-526EZ. As previously noted, the Veteran is currently in receipt of a 10 percent disability rating for her bilateral hip tendinitis, pursuant to 38 C.F.R. § 4.71a, DC 5252 for limitation of flexion of the thigh (bilateral), for the appellate review period beginning October 1, 2024 (plus consideration of the one-year look back period prior to the filing of that claim). See 38 C.F.R. § 3.400(o)(2), Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010).

As previously noted the Veteran did not attend her scheduled VA examination in February 2025. However, in the year preceding her increased rating claim, VA conducted a Hip and Thigh Conditions Examination in September 2023. At that time, the examiner diagnosed bilateral tendinitis of the hips and right short leg syndrome. The VA examiner reported that, at worst, the Veteran's right hip range of motion during a flare up was abnormal with flexion at 100 degrees (of maximum 125 degrees), extension at 30 degrees (of maximum 30 degrees), abduction at 45 degrees (of maximum 45), adduction at 25 degrees (of maximum 25), external rotation endpoint at 60 degrees (of maximum 60 degrees); and internal rotation endpoint at 40 degrees (of maximum 40) with pain observed at all endpoints. The Veteran was able to perform repetitive use testing with at least three repetitions without additional loss of function or range of motion. There was no evidence of crepitus, muscle atrophy, ankylosis malunion or nonunion of femur flail hip joint or leg length discrepancy.

The private examination report submitted by the Veteran indicates the private examiner diagnosed tendinitis of the bilateral hips. The private examiner reported that, at worst, the Veteran's right hip range of motion during a flare up was abnormal with flexion at 20 degrees (of maximum 125 degrees), extension at 5 degrees (of maximum 30 degrees), abduction at 10 degrees (of maximum 45), adduction at 15 degrees (of maximum 25), external rotation endpoint at 15 degrees (of maximum 60 degrees); and internal rotation endpoint at 20 degrees (of maximum 40) with pain observed at all endpoints.

The Veteran's left hip range of motion, was at worst, during a flare up was abnormal with flexion at 20 degrees (of maximum 125 degrees), extension at 5 degrees (of maximum 30 degrees), abduction at 10 degrees (of maximum 45), adduction at 20 degrees (of maximum 25), external rotation endpoint at 20 degrees (of maximum 60 degrees); and internal rotation endpoint at 20 degrees (of maximum 40) with pain observed at all endpoints.

The Veteran was able to perform repetitive use testing with at least three repetitions without additional loss of function or range of motion. There was no evidence of crepitus, muscle atrophy, ankylosis malunion or nonunion of femur flail hip joint or leg length discrepancy. Additional contributing factors of the disability included difficulty standing, feeling unbalanced at times, and pain when weight-bearing that affects walking.

In assessing the credibility and probative weight of the foregoing lay and medical evidence within applicable evidentiary windows, the Board finds the Veteran's contemporaneous statements made to her regular treating physician to be highly persuasive for determining the level of severity of her disability. See, Caluza v. Brown, 7 Vet. App. 498, App. 498, 510-11 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (in determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant). While the Board does not find the VA examination to be inadequate, the examination exhibits marginal error including internal inconsistencies. Further, the Board notes
within applicable evidentiary windows, the Board finds the Veteran's contemporaneous statements made to her regular treating physician to be highly persuasive for determining the level of severity of her disability. See, Caluza v. Brown, 7 Vet. App. 498, App. 498, 510-11 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (in determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant). While the Board does not find the VA examination to be inadequate, the examination exhibits marginal error including internal inconsistencies. Further, the Board notes, the VA examiners notes concerning the Veteran's lay statements do not deviate significantly from those as reported by the private examiner. Therefore, the VA examination is slightly less persuasive in the Board's assessment of the totality of the evidence surrounding the severity of the Veteran's bilateral hip disability The persuasive evidence of record is at least in approximate balance that the Veteran has more severe symptomatology than represented by her current disability rating.

Here, repetitive use over time and flare up range of motion testing indicated limitation of motion on flexion that warrants a 30 percent rating bilaterally. 38 C.F.R. § 4.40, 4.45; Correia, 28 Vet. App. at 158; Sharp, 29 Vet. App. at 26; see also DeLuca, 8 Vet. App. at 206. Therefore, increased ratings for limitation of flexion are warranted for both the left and right hips.

A separate rating based on limitation of extension is warranted herein. As there is medical evidence of record demonstrating limitation of extension, a separate rating for bilateral knee limitation of extension is warranted. See 38 C.F.R. § 4.71a, DC 5251. The issue of a separate rating for limitation of left and right knee extension has been raised by the record. The record indicates that the Veteran's repeated use over time and flare up range of motion has limited to 5 degrees extension in both the left and right hip with pain, fatigability, and lack of endurance.

Additionally, there is evidence that both the left and right hips have manifested limitation of abduction to 10 degrees. As such, the Board finds a separate compensable rating for bilateral hip impairment of thigh, limitation of abduction is warranted under DC 5253. 38 C.F.R. § 4.71(a), DC 5253.

The Board has also considered whether higher ratings or additional separate ratings are warranted under other diagnostic codes at any time during the appellate period. Here, the Veteran's VA examination and private examination reports do not indicate the presence of ankylosis in the right hip or thigh at any point during the appellate period. There is no medical evidence that the Veteran has a diagnosis of ankylosis or that his left or right hip is in a fixed position or exhibits the functional equivalent of ankylosis. The evidence also does not reveal a range of motion akin to ankylosis. Accordingly, DC 5250 is not applicable for either hip. Chavis v. McDonough, 34 Vet. App. 1 (2021). Additionally, the Board finds that evaluations under DC 5254 or 5255 are not warranted, for either hip, as there is no evidence of a flail hip joint or malunion, fracture, or nonunion of the femur.

Based on the foregoing, the Board finds that the evidence of record is at least approximately balanced that the Veteran's bilateral hip disabilities are commensurate with ratings in excess of 10 percent based on limitation of flexion. Accordingly, the Board finds, resolving reasonable doubt in favor of the Veteran, her bilateral hip tendonitis, limitation of flexion, more nearly comports with a 30 percent disability rating under the assigned criteria at DC 5252. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.71a, 4.3. The appeal is granted.

Similarly, the Board finds throughout the period on appeal, the evidence of record is at least in approximate balance that the Veteran's bilateral hip tendonitis has also manifested in bilateral limitation of extension. As such separate ratings for the Veteran's left and right hips under DC 5251 for limitation of extension is warranted throughout the period on appeal. The AOJ will assign the rating in the first instance to ensure due process.

Additionally, the Board finds throughout the period on appeal, the evidence of record is at least in approximate balance that the Veteran's bilateral hip tendonitis has also manifested in impairment of the thigh, limitation of abduction. As such separate ratings for the Veteran's left and right hips under DC 5253 for
3. The appeal is granted.

7. Evaluation of migraines, including migraine variants

Diagnostic Code

Under DC 8100, a noncompensable disability rating is assigned for migraine headaches with less frequent attacks. A 10 percent disability rating is assigned for migraine headaches with characteristic prostrating attacks averaging 1 in 2 months over the last several months. A 30 percent disability rating is assigned for migraine headaches with characteristic prostrating attacks occurring on an average once a month over the last several months. Finally, a 50 percent disability rating, the highest schedular rating available, is assigned for migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.

The rating criteria of DC 8100 are considered successive, meaning that a claimant cannot fulfill the criteria of the higher rating without fulfilling those of the next lower rating. Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). This renders 38 C.F.R. §§ 4.7 and 4.21 inapplicable. Id.

The phrase "characteristic prostrating attacks" is used in the criteria corresponding to 10 percent and 30 percent ratings under DC 8100 to describe the nature and severity of migraines, but it is not defined in the regulation. Merriam Webster's Collegiate Dictionary 999 (11th Ed. 2007) defines "prostration" as "complete physical or mental exhaustion." A similar definition is found in Dorland's Illustrated Medical Dictionary 1554 (31st Ed. 2007), in which "prostration" is defined as "extreme exhaustion or powerlessness." Thus, the phrase "characteristic prostrating attacks" is understood to describe migraine attacks that typically produce extreme exhaustion or powerlessness.

The rating criteria for a 50 percent rating contains several undefined phrases. The descriptive phrase "very frequent" connotes a frequency at least greater than once a month, as is required by the rating criteria corresponding to a lessor 30 percent rating. Johnson, 30 Vet. App. at 253. The phrase "completely prostrating" generally means that the migraines attack must render the veteran entirely powerless. Id. The completely prostrating attacks must also be "prolonged," which is defined as "to lengthen in time: extend duration: draw out: continue, protract." See, Dorland's supra (internal citation omitted). Finally, the United States Court of Appeals for Veterans Claims (CAVC) has held that very frequent completely prostrating and prolonged attacks means that the attacks must be frequent, prolonged, and render the veteran entirely powerless. See, Holmes v. Wilkie, 33 Vet. App. 67, 72 (2020).

Lastly, the 50 percent rating criteria requires that the very frequent completely prostrating and prolonged attacks be "productive of severe economic inadaptability." Productive can be read as having either the meaning of "producing" or "capable of producing," and, with regard to severe economic inadaptability, nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004).

Furthermore, in Holmes v. Wilkie, 33 Vet. App. 67 (2020), CAVC held that DC 8100 contemplates all migraine symptoms. Therefore, to evaluate migraines under DC 8100, VA must consider all symptoms experienced due to migraine attacks and then rate the symptoms based on the frequency, duration, and economic impact of those attacks. CAVC noted that this analysis is similar to that used to assign ratings for psychiatric disabilities under 38 C.F.R. § 4.130.

Analysis

The Veteran seeks an increased disability rating for her service-connected migraines, including migraine variants. See October 2024 VA Form 21-526
440, 445-46 (2004).

Analysis

The Veteran seeks an increased disability rating for her service-connected migraines, including migraine variants. See October 2024 VA Form 21-526EZ, February 2025 NOD.

As demonstrated by the procedural history above, the Veteran has continuously pursued her increased rating claim since the October 2024 VA Form 21-526EZ. As previously noted, the Veteran is currently in receipt of a noncompensable disability rating for her migraines, including migraine variants, pursuant to 38 C.F.R. § 4.124a, DC 8100 for migraines, for the appellate review period beginning October 1, 2024 (plus consideration of the one-year look back period prior to the filing of that claim). See 38 C.F.R. § 3.400(o)(2), Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010).

As previously noted the Veteran did not attend her scheduled VA examination in February 2025. However, in the year preceding her increased rating claim, VA conducted a Headaches Examination in September 2023. At that time, the examiner diagnosed migraine, including migraine variants. The examiner noted the Veteran reported almost daily headaches that lasts up to 8 hours; migraines are worse in summer with episodes lasting the entire day until she is able to sleep and rest in a dark, quiet place. The Veteran further reported dizziness and lightheadedness, with sensitivity to light, smell, and sound. The examiner noted the Veteran's migraines last less than a day, occur on both sides of the head, with no prostrating attacks. The examiner further noted the Veteran experiences pulsating or throbbing head pain, pain on both sides of the head, and pain that worsens with physical activity.

The private examination report submitted by the Veteran indicates the private examiner diagnosed migraines, including migraine variants. The Veteran reported progressively worsening symptoms since onset. Pulsating or throbbing head pain, pain on both sides of the head, and pain that worsens with physical activity were noted. Sensitivity to light and sound were noted. The private examiner determined that the Veteran's head pain typically lasted 1 to 2 days on both sides of the head. Characteristic prostrating attacks were found to occur greater than once per month. The private examiner additionally noted that the Veteran has more than two incapacitating episodes per month that negatively impact her ability to work and function daily.

Based on the above evidence, the Board finds that the Veteran's migraines, including migraine variants, more nearly approximate the criteria for a 30 percent disability rating under DC 8100. The evidence indicates that the Veteran experiences frequent migraines with prostrating attacks.

Though the Veteran did exhibit negative impact on her work due to these headaches, this was not to an extent that the Board could find the prostrating migraine attacks to cause severe economic adaptability.

For these reasons, an increased rating of 30 percent, but no higher, for the service-connected
's migraines, including migraine variants, disability The persuasive evidence of record is at least in approximate balance that the Veteran has more severe symptomatology than represented by her current disability rating.

For these reasons, an increased rating of 30 percent, but no higher, for the service-connected migraines, including migraine variants, has been met for the entire rating period on appeal. The appeal is granted.

Diagnostic Code - The Spine

The Board recognizes the VA amended the criteria for some musculoskeletal disabilities effective February 7, 2021. However, DC 5237 was not amended. DC 5237 provides that lumbosacral or cervical strain are to be rated under the General Rating Formula.

Under the General Rating Formula for the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.

A 20 percent evaluation is warranted where the evidence shows forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.

A 30 percent rating is warranted for forward flexion of the cervical spine limited to 15 degrees or less; or, favorable ankylosis of the entire cervical spine. There is no 30 percent rating offered for the thoracolumbar spine.

A 40 percent rating is warranted for forward flexion of the thoracolumbar spine limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. The criteria for a 50 percent rating are unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating requires unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Associated objective neurological abnormalities are rated separately under the appropriate diagnostic code. Id., Note (1).

Alternatively, a back disorder can be rated as Intervertebral Disc Syndrome (IVDS) based on incapacitating episodes. Under those criteria, found at DC 5243, a ten percent evaluation requires incapacitating episodes having a total duration of at least one week, but less than 2 weeks during the past 12 months, and 20 percent evaluating requires incapacitating episodes having a total duration of at least 2 weeks, but less than 4 weeks during the past 12 months. Id., DC 5243.

A 40 percent rating is warranted for incapacitating episodes having a total duration of less than six weeks, but more than four weeks and a 60 percent rating is warranted if incapacitating episodes have a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a.

Note (1) to the General Rating Formula for Diseases and Injuries of the Spine directs that rater to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a.

8. Evaluation of cervical strain

The Veteran seeks an increased disability rating for her service-connected cervical strain. See October 2024 VA Form 21-526EZ, February 2025 NOD.

As demonstrated by the procedural history above, the Veteran has continuously pursued her increased rating claim since the October 2024 VA Form 21-526EZ. As previously noted, the Veteran is currently in receipt of a disability rating of 10 percent for her cervical strain, pursuant to 38 C.F.R. § 4.71a, DC 5237 for lumb
including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a.

8. Evaluation of cervical strain

The Veteran seeks an increased disability rating for her service-connected cervical strain. See October 2024 VA Form 21-526EZ, February 2025 NOD.

As demonstrated by the procedural history above, the Veteran has continuously pursued her increased rating claim since the October 2024 VA Form 21-526EZ. As previously noted, the Veteran is currently in receipt of a disability rating of 10 percent for her cervical strain, pursuant to 38 C.F.R. § 4.71a, DC 5237 for lumbosacral or cervical strains, for the appellate review period beginning October 1, 2024 (plus consideration of the one-year look back period prior to the filing of that claim). See 38 C.F.R. § 3.400(o)(2), Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010).

As previously noted the Veteran did not attend her scheduled VA examination in February 2025. However, in the year preceding her increased rating claim, VA conducted a Neck Conditions Examination in September 2023. At that time, the examiner diagnosed cervical strain. The Veteran reported ongoing acute, sharp pain and discomfort in her neck. The Veteran indicated flare ups occur a few times a month and last for about an hour. The examiner took initial range of motion measurements in both active and passive motion, repeated use over time, and flare ups. Range of motion in all testing was noted to be "all normal:" forward flexion limited to 45 degrees (of maximum 45); extension limited to 45 degrees (of maximum 45); right and left lateral flexion limited to 45 degrees (of maximum 45); and right and left lateral rotation to 80 degrees (of maximum 80). The examiner indicated pain was exhibited on right lateral rotation, extension, and left lateral flexion. The examiner noted localized tenderness and guarding, which did not result in abnormal gait or abnormal spinal contour. There was no atrophy, ankylosis, or IVDS. The Veteran did not require use of any assistive devices for her neck condition.

The private examination report submitted by the Veteran indicates the private examiner diagnosed cervical strain. The Veteran reported progressively worsening symptoms in her neck. Flare ups characterized by pain, numbness, tingling, and aching were reported. The examiner took initial range of motion measurements in both active and passive motion. The examiner then offered more restrictive range of motion estimates during repeated use over time and flare ups: forward flexion limited to 10 degrees (of maximum 45); extension limited to 10 degrees (of maximum 45); right lateral flexion limited to 20 degrees (of maximum 45); and left lateral flexion limited to 30 degrees (of maximum 45); and right and left lateral rotation to 20 degrees (of maximum 80). The examiner indicated there was additional functional loss due to pain on all range of motion testing conducted. The examiner noted guarding, which did not result in abnormal gait or abnormal spinal contour. Additional factors contributing to the disability included interference with standing upright and prolonged sitting. There was no atrophy, ankylosis, or IVDS. The Veteran did not require use of any assistive devices for her neck condition.

Other medical records associated with the claim file do not discuss the Veteran's musculoskeletal issues. See generally, VA Treatment Records (care established May 2024, mostly regarding menstrual cycle issues). As such, no evidence during the appeal period contradicts the above examiners' findings, and no medical evidence has shown range of motion measurements or estimates that are more restrictive than those shown above.

In assessing the credibility and probative weight of the foregoing lay and medical evidence within applicable evidentiary windows, the Board finds the Veteran's contemporaneous statements made to her regular treating physician to be highly persuasive for determining the level of severity of her disability. See, Caluza v. Brown, 7 Vet. App. 498, App. 498, 510-11 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (in determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant). While the Board does not find the VA examination to be inadequate the examination exhibits marginal error including internal inconsistencies. Further, the Board notes, the VA examiners notes concerning the Veteran's lay statements do not deviate significantly from those as reported by the private examiner. Therefore, the VA examination is slightly less persuasive in the Board's
Caluza v. Brown, 7 Vet. App. 498, App. 498, 510-11 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (in determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant). While the Board does not find the VA examination to be inadequate the examination exhibits marginal error including internal inconsistencies. Further, the Board notes, the VA examiners notes concerning the Veteran's lay statements do not deviate significantly from those as reported by the private examiner. Therefore, the VA examination is slightly less persuasive in the Board's assessment of the totality of the evidence surrounding the severity of the Veteran's cervical strain disability The persuasive evidence of record is at least in approximate balance that the Veteran has more severe symptomatology than represented by her current disability rating.

Accordingly, the relevant competent evidence is at least approximately balanced that forward flexion of the cervical spine is limited to 15 degrees or less; or, ankylosis affecting the spine (either favorable or unfavorable). Therefore, the criteria for a 30 rating under DC 5237 are met or more nearly approximated.

However, unfavorable ankylosis of the entire cervical spine was not found by any examiner. Thus, the criteria for a higher, 40 percent, rating under DC 5237 are not met, nor more nearly approximated.

Therefore, the Board finds the Veteran's cervical strain manifested at worst as forward flexion of the cervical spine 15 degrees or less; or favorable ankylosis of the entire cervical spine for the entire period on appeal. Consequently, an increased rating of 30 percent for the Veteran's cervical strain, for the entire period on appeal, is warranted. The appeal is granted.

9. Evaluation of lumbosacral strain

The Veteran seeks an increased disability rating for her service-connected lumbosacral strain. See October 2024 VA Form 21-526EZ, February 2025 NOD.

As demonstrated by the procedural history above, the Veteran has continuously pursued her increased rating claim since the October 2024 VA Form 21-526EZ. As previously noted, the Veteran is currently in receipt of a disability rating of 10 percent for her cervical strain, pursuant to 38 C.F.R. § 4.71a, DC 5237 for lumbosacral or cervical strains, for the appellate review period beginning October 1, 2024 (plus consideration of the one-year look back period prior to the filing of that claim). See 38 C.F.R. § 3.400(o)(2), Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010).

As previously noted the Veteran did not attend her scheduled VA examination in February 2025. However, in the year preceding her increased rating claim, VA conducted a Back Conditions Examination in September 2023. At that time, the examiner diagnosed lumbosacral strain. The Veteran reported progressively worsening more frequent and severe sharp, tingling, discomfort and overall tightness. The Veteran indicated flare ups occur almost daily, lasting a few hours. The examiner took initial range of motion measurements in both active and passive motion, repeated use over time, and flare ups. Range of motion in all testing was noted to be "abnormal or outside of normal range:" forward flexion limited to 75 degrees (of maximum 90); extension limited to 25 degrees (of maximum 30); right and left lateral flexion limited to 30 degrees (of maximum 30); and right and left lateral rotation to 30 degrees (of maximum 30). The examiner indicated pain was exhibited on forward flexion, extension, left and right lateral rotation, and left and right lateral rotation. The examiner noted localized tenderness, which did not result in abnormal gait or abnormal spinal contour. There was no atrophy, ankylosis, or IVDS. The Veteran did not require use of any assistive devices for her neck condition.

The private examination report submitted by the Veteran indicates the private examiner diagnosed lumbosacral strain. The Veteran reported progressively worsening symptoms in her back. Daily flare ups characterized by pain, aching, and immobility were reported. The examiner took initial range of motion measurements in both active and passive motion. The examiner then offered more restrictive range of motion estimates during repeated use over time and flare ups: forward flexion limited to 20 degrees (of maximum 90); extension limited to 10 degrees (of maximum 30); right lateral flexion limited to 15 degrees (of maximum 30); and left lateral flexion limited to 10 degrees (of maximum 30); and right lateral rotation to 10 degrees (of maximum 30); and left lateral rotation to 15 degrees (of maximum 30). The examiner indicated there was additional functional loss due to pain on all range of motion testing conducted. No localized tenderness, muscle spasms, or guarding were indicated. Additional factors contributing to the disability included interference with sitting and standing for prolonged periods, weakened or less movement than normal, and instability affecting mobility. There was no atrophy, ankylosis, or IVDS. The Veteran did not require use of any assistive devices for her neck condition.

Accordingly, the relevant competent evidence is at least approximately balanced that forward flexion of the thoracolumbar spine is limited to, at worst, 30 degrees or less; or, ankylosis affecting the spine (either favorable or unfavorable). Therefore, the criteria for a 40 rating under DC 5237 are met or more nearly approximated.

However, unfavorable ankylosis of the entire thoracolumbar spine was not found by any examiner. Thus, the criteria for a higher, 50 percent, rating under DC 5237 are not met, nor more nearly approximated.

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Further, a rating under DC 5243 for IVDS is not warranted in this case because the record does not show any episodes of acute signs and symptoms requiring bed rest prescribed by a physician.

Therefore, the Board finds the Veteran's lumbosacral strain manifested at worst as forward flexion of the cervical spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine for the entire period on appeal. Consequently, an increased rating of 40 percent for the Veteran's lumbosacral strain, for the entire period on appeal, is warranted. The appeal is granted.

Martin T. Mitchell

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Herring, Victoria B.

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.

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