Case A26032221

MICHAEL A. HERMAN · 2026 · Case ID: A26032221

MIXED

Summary

The veteran, who served from January 1982 to April 1990, appeals a March 25, 2025, rating decision. The appeal initially sought service connection for diabetes mellitus type II, diabetic retinopathy, neuropathy affecting the right and left lower extremities, and urinary incontinence. However, these issues were dismissed from the current appeal because they were already pending before the Board in a prior docketed appeal (Docket Number 250325-531991), and the modernized review system prohibits concurrent review. The veteran also appealed the denial of service connection for an aortic aneurysm and the denial of an increased rating for migraines. Service connection for the aortic aneurysm was denied, as the Board found the competent and probative evidence weighed against a service connection, attributing the aneurysm to aging, hypertension, or family history, and finding the chiropractor's opinion lacked a supporting rationale and competency. The claim for an increased rating for migraines was also denied, as the evidence did not support the frequency or severity of attacks required for a rating higher than the 30 percent already assigned. The Board remanded claims for increased ratings for left and right hip arthritis due to degenerative arthritis, finding the October 2024 VA examination inadequate for failing to address the ameliorative effects of NSAIDs on the veteran's hip symptoms, which is a pre-decisional duty to assist error.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

250528-548094

Full Decision Text

Citation Nr: A26032221
Decision Date: 04/08/26 Archive Date: 04/08/26

DOCKET NO. 250528-548094
DATE: April 8, 2026

ORDER

The appeal seeking entitlement to service connection for diabetes mellitus type II, diabetic retinopathy, peripheral neuropathy affecting the right and left lower extremities, and urinary incontinence is dismissed.

Entitlement to service connection for an aortic aneurysm is denied.

Entitlement to a rating in excess of 30 percent for service-connected migraines is denied.

REMANDED

Entitlement to a rating in excess of 10 percent for limited flexion of the left hip due to service-connected degenerative arthritis is remanded.

Entitlement to a compensable rating for limited extension of the left hip/thigh due to service-connected degenerative arthritis is remanded.

Entitlement to a compensable rating for limitation of the left thigh due to service-connected degenerative arthritis is remanded.

Entitlement to a rating in excess of 10 percent for limited flexion of the right hip due to service-connected degenerative arthritis is remanded.

Entitlement to a compensable rating for limited extension of the right hip/thigh due to service-connected degenerative arthritis is remanded.

Entitlement to a compensable rating for limitation of the right thigh due to service-connected degenerative arthritis is remanded.

FINDINGS OF FACT

1. At the time the Board of Veterans' Appeals (Board) received the Veteran's May 28, 2025, VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran already had a pending Board appeal regarding entitlement to service connection for diabetes mellitus type II, diabetic retinopathy, neuropathy affecting the right and left lower extremities, and urinary incontinence.

2. Aortic aneurysm is not related to an in-service injury or disease; and, the Veteran is not service connected for hypertension.

3. From December 19, 2023, the Veteran experienced migraines with characteristic prostrating attacks occurring on average once a month over the last several months. The migraines did not manifest in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.

CONCLUSIONS OF LAW

1. The criteria for dismissal of entitlement to service connection for diabetes mellitus type II, diabetic retinopathy, neuropathy affecting the right and left lower extremities, and urinary incontinence have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.2500; 20.205.

2. The criteria for service connection for an aortic aneurysm, to include as due to non-service-connected hypertension, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.

3. The criteria for a rating in excess of 30 percent for migraines are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active air service from January 1982 to April 1990.

The instant matter comes before the Board of Veterans' Appeals (Board) from a March 25, 2025, rating decision by a Department of Veterans Affairs (VA) Regional Office. The Veteran sought review of the March 25, 2025, rating decision by submitting a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), on May 28, 2025. He requested review on the Board's Evidence Submission docket.

Therefore, the Board may only consider the evidence of record at the time of the March 25, 2025, Agency of Original Jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative with, or within 90 days from receipt of, the Notice of Disagreement. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal 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. Id. §§ 20.300, 20.303, 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board
on appeal, as well as any evidence submitted by the Veteran or his representative with, or within 90 days from receipt of, the Notice of Disagreement. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal 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. Id. §§ 20.300, 20.303, 20.801.

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. Id. § 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.

However, because the Board is remanding the increased ratings claims for a right hip disability and a left hip disability, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii).

1. The appeal seeking entitlement to service connection for diabetes mellitus type II, diabetic retinopathy, neuropathy affecting the right and left lower extremities, and urinary incontinence

The Veteran initially sought service connection for diabetes mellitus type II, in April 1990. The AOJ denied that claim in a June 1990 rating decision. The Veteran did not initiate an appeal within one year of receiving notice of that rating decision. There was likewise no new and relevant evidence received within that time frame.

The Veteran again sought service connection for diabetes mellitus, type II, claimed as high glucose, on June 27, 1991. The AOJ denied the Veteran's service connection claim in a November 7, 1991, rating decision. The Veteran did not appeal that rating decision. There was again no new and material evidence received within the one-year period following that decision.

VA received an intent to file from the Veteran on December 18, 2023. On October 7, 2024, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, seeking service connection for diabetes mellitus and shin splints. On October 7, 2024, VA also received a VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, in which the Veteran sought service connection for, among other things, neuropathy affecting the right lower extremity, neuropathy affecting the left lower extremity, urinary incontinence, and glaucoma (diabetic retinopathy).

In a February 20, 2025, rating decision the AOJ denied the Veteran's service connection claims for diabetes mellitus type II, diabetic retinopathy, glaucoma, left lower extremity neuropathy, right lower extremity neuropathy, and urinary incontinence. The February 20, 2025, rating decision deferred adjudication of service connection for an aortic aneurysm and migraines, and the adjudication of increased ratings claims for a right hip disability and a left hip disability, which were also included in the October 7, 2024, VA Form 21-562EZ. Notice of the February 20, 2025, rating decision was sent to the Veteran in correspondence dated February 24, 2024.

On March 25, 2025, the Board received a two-part VA Form 10182, Decision Review Request: Board Appeal. He requested on the Evidence Submission docket. The Board docketed the appeal at Docket Number 250325-531991 according to Board correspondence dated April 28, 2025.

On March 25, 2025, the same day that the Board received the Veteran's March 25, 2025, Notice of Disagreement, the AOJ issued a rating decision in which it made the following determinations: granted service connection for migraine headaches, evaluated as 30 percent disabling from December 19, 2023; assigned a 10 percent rating from December 19, 2023, left hip arthritis based on limited flexion; assigned non-compensable ratings for left hip extension and left hip impairment from December 19, 2023; continued a 10 percent rating for right hip flexion; assigned non-compensable ratings based on right hip extension and right hip impairment from December 19, 2023; and denied service connection for an aortic aneurysm. The March 25, 2025, rating decision also denied service connection for diabetes mellitus type II, diabetic retinopathy, left lower extremity neuropathy, right lower extremity neuropathy, and urinary incontinence.

The Veteran was provided notice of the March 25, 2025, rating decision on March 31, 2025. As noted above, the Board received the Veteran's Notice of Disagreement seeking Board review of the March 25, 2025, rating decision on May 28, 2025.

Importantly for determining the scope of the Board's review in the instant appeal, as of May 28, 2025, the Veteran had already requested Board review of the issues entitlement to service connection for diabetes mellitus type II, diabetic retinopathy, left lower extremity neuropathy, right lower extremity neuropathy, and urinary incontinence. Those issues were already docketed in the Veteran's appeal at Docket Number 250325-531991. Thus, the AOJ erred by again adjudicating the service connection claims for diabetes mellitus, type II, diabetic retinopathy, left lower extremity neuropathy, right lower extremity neuropathy, and urinary incontinence, and the March 25, 2025, rating decision. That rating decision is deemed "spurious" as to those issues because it constituted concurrent review due to those being subject to Board review based on the Veteran's March 25, 2025, Notice of Disagreement.

Moreover, when the Board received the Veteran's May 28, 2025, Notice of Disagreement, his appeal of the February 20, 2025, rating decision was already docketed and included the issues of entitlement to service connection for diabetes mellitus type II, diabetic retinopathy, left lower extremity neuropathy, right lower extremity neuropathy, and urinary incontinence. Those issues are beyond the scope of the instant appeal due to the AMA's prohibition against concurrent review.

In reaching this conclusion, the Board notes that the May 28, 2025, Notice of Disagreement specifically identifies the March 25, 2025, rating decision, and the March 25, 2025, Notice of Disagreement specifically identifies the February 20, 2025, rating decision. Both notices of disagreement elect review on the Board's Evidence Submission docket. Therefore, the May 28, 2025, Notice of Disagreement cannot be construed as docket switch request with respect to the issues of service connection for diabetes mellitus, type II, diabetic retinopathy, left lower extremity neuropathy, right lower extremity neuropathy, and urinary incontinence. Because concurrent review of the same claim is prohibited within the modernized review system, and a review request remained pending before the Board on both March 25, 2025, and May 28, 2025, the present appeal seeking service connection for diabetes mellitus, type II, diabetic retinopathy, left lower extremity neuropathy, right lower extremity neuropathy, and urinary incontinence must be dismissed. See 38 C.F.R. §§ 3.2500, 20.205.

This conclusion accords with the United States Court of Appeals for Veterans Claims' (Court) holding in Terry v. McDonough, 37 Vet. App. 1 (2023). In that case, the Court held that "a claimant is able to select a second administrative review option with respect to a decision on the claim, so long as the 1-year period from that decision has not run and the second administrative review option does not run concurrently with the first administrative review option." Id. at 14. The Court's holding is predicated on finding that multiple administrative review requests were "not pending concurrently" as such would be prohibited under 38 U.S.C. § 5104C(a)(
.205.

In summary, the Board received the Veteran's March 25, 2025, Notice of Disagreement at the time of the March 25, 2025, rating decision and notice thereof on March 31, 2025. In addition, the Veteran's Board appeal at Docket Number 250325-531991 was pending when the Board received his May 28, 2025, Notice of Disagreement. The AMA prohibits concurrent election, and the appropriate remedy is to dismiss the appeal seeking service connection for diabetes mellitus, type II, diabetic retinopathy, left lower extremity neuropathy, right lower extremity neuropathy, and urinary incontinence from the instant appeal. See 38 U.S.C. § 7105. See also Hall v. McDonough, 34 Vet. App. 329, 333 (2021) (the Board may not dismiss an improperly docketed appeal for lack of jurisdiction but is not precluded from dismissing it for other non-jurisdictional reasons such as a procedural defect-a violation of the claims processing rules).

This does not prejudice the Veteran because these five service connection issues are included in his appeal at Docket Number 250325-531991, which like the instant appeal is pending on the Board's Evidence Submission docket.

2. Entitlement to service connection for aortic aneurysm

The Veteran contends that he is entitled to service connection for an aortic aneurysm.

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004).

December 2022 private treatment records document a diagnosis for an aneurysm of the ascending aorta without rupture. With respect to in-service incurrence, January 1982 service treatment records include complaints of chest pain. Follow up examinations note blunting of the right coronary artery (RCA). The Veteran's service treatment records also note a concern for a heart murmur noted in April 1989. The first two requirements for service connection are met.

Thus, the question is whether the Veteran's aortic aneurysm is due to the in-service chest pain and/or blunted RCA in January 1982 or heart murmur in April 1989.

The Veteran received a VA examination for artery and vein conditions in October 2024. It noted a December 2021 diagnosis for aortic aneurysm based on an incidental finding in a CT examination. The aneurysm has stayed the same since its diagnosis. The examiner responsible for the October 2024 VA examination concluded in an October 2024 VA opinion that the aortic aneurysm is less likely than not due to the Veteran's active service. According to the examiner, ascending aortic aneurysm is more likely a result of aging, years of hypertension, or family history. The examiner further reasoned that chest pain, heart murmur and blunting or the RCA do not cause ascending aneurysms. Chest pain is merely a symptom and not a physiological insult that would cause an aneurysm. A heart murmur is a clinical finding and not a cause of an aneurysm. A blunted RCA is an anatomical finding that is not a cause of an aneurysm. The examiner noted that the causes
4 VA opinion that the aortic aneurysm is less likely than not due to the Veteran's active service. According to the examiner, ascending aortic aneurysm is more likely a result of aging, years of hypertension, or family history. The examiner further reasoned that chest pain, heart murmur and blunting or the RCA do not cause ascending aneurysms. Chest pain is merely a symptom and not a physiological insult that would cause an aneurysm. A heart murmur is a clinical finding and not a cause of an aneurysm. A blunted RCA is an anatomical finding that is not a cause of an aneurysm. The examiner noted that the causes of an ascending aortic aneurysm, which is a bulge in the aorta's wall near the heart, can be caused by factors like genetic conditions (Marfan syndrome, Loeys-Dietz syndrome), high blood pressure, smoking, atherosclerosis, bicuspid aortic valve (a congenital heart defect), and infections according to resources available from The Cleveland Clinic.

The October 2024 VA examiner's opinion is probative. It is based on an accurate medical history, includes in the rationale a discussion of the potentially pertinent findings from the Veteran's service treatment records, and provides an explanation that contains clear conclusions, supporting data, and cites a renowned medical institution regarding the known causes of ascending aortic aneurysms. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).

The record also includes an August 2024 report from D.H., a chiropractor licensed to practice in Florida. In his report, he summarizes physical findings related to the Veteran's lung and heart sounds. D.H. also notes private treatment records and monitoring related to the Veteran's aortic aneurysm. D.H. concludes that the Veteran's aortic aneurysm is as likely as not due to the Veteran's hypertension. He also concluded that aortic aneurysm was due to the Veteran's active service. The Board does not concede that D.H., as a chiropractor, is competent to opine on the etiology of a cardiovascular diagnosis. See Fla. Stat. § 460.403(9)(a) (defining the practice of chiropractic medicine as involving the "science, philosophy, and art of the adjustment, manipulation, and treatment of the human body in which vertebral subluxations and other malpositioned articulations and structures . . . are adjusted, manipulated, or treated"). Regardless of his competency to opine on the etiology of the Veteran's aortic aneurysm, D.H.'s opinion is not supported by a rationale. For that reason, it is not entitled to any probative weight. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) ("a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision.").

The Veteran may believe that his aortic aneurysm is due to active service; however, the Veteran is not competent to provide an opinion here. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. The record does not show that the Veteran has the experience, knowledge, or training needed to provide an etiological opinion here. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). See also Kahana v. Shinseki, 24. Vet. App. 428 (2011).

In light of the foregoing, the competent and probative evidence of record is against the conclusion that the Veteran's aortic aneurysm is due to his active service. Because the probative evidence weighs against the claim, the benefit-of-the-doubt doctrine is not applicable here. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021). Accordingly, service connection for aortic aneurysm must be denied.

In denying the claim, the Board notes that both D.H. and the VA examiner attributed aortic aneurysm to hypertension. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023) (invalidating the requirement of "proximate cause" and instead held a "but for" causation or aggravation is enough to show entitlement to secondary service connection). Compensation may be established for any incremental increase in disability or any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected disabilities, above the degree of disability existing before the increase regardless of its permanence. Ward v. Wilkie, 31 Vet. App. 233, 239 (2019).

The Veteran has a diagnosis for aortic aneurysm. He also has a current diagnosis for hypertension and has sought service connection for hypertension. However, to date, service connection for hypertension has not been established. Therefore, that disability cannot serve as a predicate service-connected disability upon which to base the Veteran's claims for service connection for an aortic aneurysm, and any claim based on secondary service connection therefore fails as a matter of law. See 38 C.F.R. § 3.310; Sabonis v. Brown, 6 Vet. App. 426 (1994)..

3. Entitlement to a rating in excess of 30 percent for service-connected migraines

The Veteran contends that he is entitled to a rating in excess of 30 percent for his service-connected migraines. According to the Veteran's May 2025 Notice of Disagreement, his migraines should be rated as 70 percent disabling. As will be discussed below, the maximum schedular rating for migraines in 38 C.F.R. § 4.124a, Diagnostic Code 8100 is 50 percent, and the schedular does not include a 70 percent rating.

Disability ratings are determined in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability picture more closely approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3.

The Board will consider whether staged ratings should be assigned to compensate for times when the disability may have been more severe than at other times during the pendency of the claim. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999).

VA is responsible for determining whether the evidence persuasively favors one side or another. 38 C.F.R. § 4.3. When there is an approximate or nearly equal balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the Veteran and the claim will be granted on the merits. 38 U.S.C. § 5107(b). When the evidence persuasively favors against the claims of the Veteran, the benefit of the doubt doctrine is inapplicable, and the claim will be denied on its merits. 38 U.S.C. § 5107; Lynch, 21 F.4th at 781-82; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

The Veteran's migraines are rated under 38 C.F.R. § 4.124a, Diagnostic Code 8100. Under Diagnostic Code 8100, a noncompens
be given to the Veteran and the claim will be granted on the merits. 38 U.S.C. § 5107(b). When the evidence persuasively favors against the claims of the Veteran, the benefit of the doubt doctrine is inapplicable, and the claim will be denied on its merits. 38 U.S.C. § 5107; Lynch, 21 F.4th at 781-82; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

The Veteran's migraines are rated under 38 C.F.R. § 4.124a, Diagnostic Code 8100. Under Diagnostic Code 8100, a noncompensable rating is warranted for migraines with less frequent attacks. A 10 percent rating is assigned for migraines with characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent rating is assigned for migraines with characteristic prostrating attacks occurring on average once a month over the last several months. A 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 50 percent rating is the highest schedular rating under Diagnostic Code 8100. 38 C.F.R. § 4.124a, Diagnostic Code 8100. Diagnostic Code 8100 does not include a 70 percent rating for migraines.

The rating criteria of Diagnostic Code 8100 are considered successive. This means 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. Johnson, 30 Vet. App. at 252.

The phrase "characteristic prostrating attacks" is used in the criteria corresponding to 10 and 30 percent ratings under Diagnostic Code 8100 to describe the nature and severity of migraines, but it is not defined in the regulation. Pursuant to Dorland's Illustrated Medical Dictionary (32nd ed. 2012), 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 descriptive phrase "very frequent" connotes a frequency of at least greater than once a month, as is required by the rating criteria corresponding to a lesser 30 percent rating. See Johnson, 30 Vet. App. at 253. The phrase "completely prostrating" generally means that the migraine 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." Id. (internal citation omitted). Lastly, the 50 percent rating criteria require that the very frequent completely prostrating attacks be "productive of severe economic inadaptability." Productive can be read as having either the meaning of "producing" or "capable of producing." Regarding severe economic inadaptability, nothing in Diagnostic Code 8100 requires that the claimant be completely unable to work to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440, 446 (2004).

These rating criteria do not explicitly contemplate the ameliorative effects of medication. Therefore, the assigned rating should contemplate the nature and frequency of characteristic prostrating attacks that would occur without medication. See 38 C.F.R. § 4.124a, Diagnostic Code 8100; Jones v. Shinseki, 26 Vet. App. 56, 63 (2012).

The Veteran received a VA examination for migraines on October 28, 2024. He reported onset of migraines in 1983 that manifested as headaches and dizziness. The migraines have progressed and worsened, and the Veteran reported using non-steroidal antiinflammatory drugs, or NSAIDs, to treat his headaches. His headache pain was located in his forehead and could be accompanied by dizziness or lightheadedness. The migraines typically lasted less than one day. The examiner indicated that the Veteran experienced characteristic prostrating attacks of migraine greater than once per month. The examination report also includes the examiner's notation that the Veteran experienced completely prostrating and prolonged attacks of migraines once in 2 months. However, the examination report does not show the duration of completely prostrating attacks needed to support a rating in excess of 30 percent.
izziness. The migraines have progressed and worsened, and the Veteran reported using non-steroidal antiinflammatory drugs, or NSAIDs, to treat his headaches. His headache pain was located in his forehead and could be accompanied by dizziness or lightheadedness. The migraines typically lasted less than one day. The examiner indicated that the Veteran experienced characteristic prostrating attacks of migraine greater than once per month. The examination report also includes the examiner's notation that the Veteran experienced completely prostrating and prolonged attacks of migraines once in 2 months. However, the examination report does not show the duration of completely prostrating attacks needed to support a rating in excess of 30 percent. The October 2024 VA examination shows migraines with symptoms most closely approximating those warranting a 30 percent rating. Prolonged migraines resulting in severe economic inadaptability are not shown.

The August 2024 report from D.H. noted the Veteran's report of migraine headaches 3 to 4 times per week. Migraine pain was described as aching and as wrapping across the forehead and behind the eyes. Dizziness and lightheadedness accompanied migraines, and the Veteran reported that his pain often became so severe that he needed to lay down in a dark quiet room until the pain subsided. D.H.'s report does not describe the duration of the Veteran's symptoms beyond noting that the Veteran needed to rest in a dark room "for a period of time."

In light of the foregoing, a rating in excess of 30 percent for migraines is not warranted. The evidence persuasively weighs against finding that the Veteran has experienced very frequent completely prostrating and prolonged migraine attacks productive of severe economic inadaptability during the period on appeal. Notably, the Veteran's migraine attacks were not prolonged. The October 2024 VA examination clearly shows that the Veteran's headaches lasted for less than one day. The Board finds that headaches lasting less than one day do not meet the definition of prolonged, which is "to lengthen in time: extend duration: draw out: continue, protract." See Johnson, 30 Vet. App. at 253.

The Board acknowledges that the August 2024 report from D.H. indicates that the Veteran's migraines occurred very frequently, up to 3 to 4 times per month. See Johnson, 30 Vet. App. at 253. The Veteran also reported that he must recline in a dark room until his symptoms subsided. Such could meet the definition of completely prostrating, as the fact that he must rest may indicate that he is rendered entirely powerless during his migraine attacks. See Johnson, 30 Vet. App. at 253.

However, other evidence of record does not support the frequency or severity of headaches reported by the Veteran in the August 2024 consultation report. In fact, November 2024, August 2024, and July 2024 VA treatment records include the Veteran's reports denying headaches and dizziness. Thus, treatment records documenting treatment and examinations for purposes other than the Veteran's application for disability compensation benefits contemporaneous with D.H.'s August 2024 report do not document headaches at all, let alone migraine headaches 3 to 4 times per week that can be so severe that they require the Veteran to rest in a dark room. The Board concludes that the Veteran's denials of headaches in July 2024, August 2024, and November 2024 constitutes more probative evidence than D.H.'s report regarding the frequency and severity of migraines. See Caluza v. Brown, 7 Vet. App. 498, 510-11 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991).

Even assuming, without conceding, that the Veteran's headaches occur 3 to 4 times per week and sometimes require him to rest in a dark room, the criteria for a 50 percent rating under Diagnostic Code 8100 still are not met. The evidence does not establish that the Veteran's migraines are characterized by very frequent completely prostrating and prolonged attacks during the period on appeal. The rating criteria do not award a 50 percent rating simply because a Veteran's migraines are very frequent, are completely prostrating, or there is severe economic inadaptability. The criteria require there to be very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The fact remains that the evidence persuasively weighs against finding that the Veteran's migraines result in prolonged attacks.

The Board again notes that the
sometimes require him to rest in a dark room, the criteria for a 50 percent rating under Diagnostic Code 8100 still are not met. The evidence does not establish that the Veteran's migraines are characterized by very frequent completely prostrating and prolonged attacks during the period on appeal. The rating criteria do not award a 50 percent rating simply because a Veteran's migraines are very frequent, are completely prostrating, or there is severe economic inadaptability. The criteria require there to be very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The fact remains that the evidence persuasively weighs against finding that the Veteran's migraines result in prolonged attacks.

The Board again notes that the Veteran reports taking NSAIDs to control and ease his migraines throughout the period on appeal. However, the migraine disability must be rated based on the nature of the symptoms that would exist without such medication. See Jones, 26 Vet. App. at 63. The evidence does not suggest that the Veteran's migraines have been improved or alleviated by medications. Although the Veteran reported use of NSAIDs to treat his migraines, the August 2024 report of examination and consultation from D.H. includes the Veteran's reports that medication often did not relieve his migraine symptoms. In other words, the record does not indicate that these medications have alleviated or improved his symptoms such that the severity of his migraines is worse than what is documented in the October 2024 VA examination.

Thus, the evidence supporting the claim for an initial rating in excess of 30 percent for migraines versus the evidence against the claim is not in "approximate" balance (i.e., nearly equal). Rather, the most probative and most persuasive evidence is against this claim. See Lynch, 21 F.4th at 781-82; see also Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). The claim for entitlement to an initial rating in excess of 30 percent for migraines must be denied.

REASONS FOR REMAND

1. Entitlement to increased ratings for service-connected left hip arthritis

2. Entitlement to increased ratings for service-connected right hip arthritis

The Veteran is in receipt of multiple ratings for his left and right hip arthritis. He is presently in receipt of a non-compensable rating for left and right hip limitation of extension, a 10 percent rating for left and right hip limitation of flexion, and a non-compensable rating for left and right hip impairment of the thigh. The 10 percent ratings based on flexion have been effective from April 18, 1990, and the non-compensable ratings are effective from December 19, 20203. The Veteran contends that higher ratings are warranted for both his right hip arthritis and his left hip arthritis.

One of the effects of the Appeals Modernization Act (AMA) is to narrow the set of circumstances in which the Board must remand appeals to the AOJ for further development instead of immediately deciding them on the merits. However, the Board has the duty to remand issues when necessary to correct a pre-decisional duty to assist error where the issues cannot be granted in full. 38 U.S.C. § 5103A(f); 38 C.F.R. § 20.802(a).

The Veteran received a VA examination for his bilateral hip arthritis on October 24, 2024. The report of that examined remained unsigned until March 15, 2025. In the October 2024 VA examination, the Veteran reported using NSAIDs to treat his bilateral hip arthritis. He also reported flare-ups in both his left and right hips that occur two to three times per week. According to the Veteran, the flare-ups of moderate severity that result in aching pain, and limit his ability to stand, walk, and sit for more than 30 minutes.

In Jones v. Shinseki, 26 Vet. App. 56, 63 (2012), the Court held that VA has the duty to consider the ameliorative effects of medications when raised by the record and not explicitly considered by the rating schedule. As the Court further explained in Ingram v. Collins, 38 Vet. App. 130, 135 (2025), "when relevant criteria do not explicitly contemplate a veteran using medication to allay the symptoms of a service-connected disability, the Board, in assessing the severity of that disability for rating purposes, must discount the beneficial effects of medication used."

Based on the foregoing, the Board concludes that the October 2024 VA examination is inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran has
), the Court held that VA has the duty to consider the ameliorative effects of medications when raised by the record and not explicitly considered by the rating schedule. As the Court further explained in Ingram v. Collins, 38 Vet. App. 130, 135 (2025), "when relevant criteria do not explicitly contemplate a veteran using medication to allay the symptoms of a service-connected disability, the Board, in assessing the severity of that disability for rating purposes, must discount the beneficial effects of medication used."

Based on the foregoing, the Board concludes that the October 2024 VA examination is inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran has indicated that he uses over-the-counter medications NSAID to manage his symptoms from bilateral hip arthritis, and that he experiences flare-ups that result in aching pain and reduced ranges of motion in both hips. Unlike their lack of impact on his migraine headaches, the record does not indicate that the use of NSAIDs is ineffective in relieving the Veteran's bilateral hip symptoms. Despite this, the October 2024 VA examination report does not address the ameliorative effects of medication on the severity of the Veteran's service-connected bilateral hip disabilities. See Jones, 26 Vet. App. at 63; Ingram, 38 Vet. App. at 135.

Thus, it was a pre-decisional duty to assist error to deny higher ratings for the Veteran's left and right hip disabilities without ensuring that the October 2024 VA examination complied with the holdings in Jones and Ingram. Remand is therefore required for the correction of this pre-decisional duty to assist error by obtaining a new VA examination addressing the severity of the Veteran's left and right hip limitation of extension, limitation of flexion, and impairment of the thigh that considers the ameliorative effects of medications, to include NSAIDs.

The matters are REMANDED for the following action:

1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left and right hip disabilities. The examiner should provide a full description of the disabilities and report all signs and symptoms for evaluating the Veteran's disabilities under the applicable rating criteria.

In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing.

The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements.

If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).

The examiner should also estimate the extent of the Veteran's functional loss if his medications were removed. In other words, describe the frequency and severity of the Veteran's left and right hip symptoms and the impact of these symptoms on the Veteran's functional ability if the ameliorative effects of medications used to treat these disabilities were removed.

MICHAEL A. HERMAN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Douglas M. Humphrey, 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.

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