HEADACHES

Summary

The veteran, who served from July 2011 to July 2015, appeals the denial of an initial rating in excess of 10 percent for migraines. The veteran sought a higher rating for his service-connected migraines, which are rated under Diagnostic Code 8100. The Board reviewed the evidence of record at the time of the July 2024 rating decision, noting that any evidence submitted after that date could not be considered. The Board referenced the rating criteria for migraines under 38 C.F.R. § 4.124a, DC 8100, which assigns ratings based on the frequency and severity of prostrating attacks. The January and March 2024 VA examinations indicated the veteran experienced characteristic prostrating attacks averaging once every two months, and importantly, no completely prostrating attacks. The Board found this evidence persuasively against the claim for a higher rating, as the veteran did not meet the criteria for the next higher 30 percent rating, which requires attacks occurring on an average once a month. The Board also noted that the veteran's condition was rated under its specific diagnostic code, making analogous ratings inappropriate. The Board gave greater weight to the objective medical evidence from the VA examinations over the veteran's subjective complaints, concluding that the evidence did not support a rating higher than 10 percent. The benefit-of-the-doubt doctrine was not applied as the evidence persuasively favored the denial of the increased rating.

Rationale

Evidence did not meet criteria for 30% rating (attacks once a month).; Veteran experienced attacks averaging once in 2 months.; No completely prostrating attacks noted by examiners.

Full Decision Text

Citation Nr: A26032864
Decision Date: 04/09/26	Archive Date: 04/09/26

DOCKET NO. 250203-514738
DATE: April 9, 2026

ORDER

Entitlement to an initial rating in excess of 10 percent for migraines is denied.

FINDING OF FACT

Throughout the appeal period, the Veteran's migraine headaches did not manifest by characteristic prostrating attacks occurring on average once a month over the last several months.

CONCLUSION OF LAW

The criteria for entitlement to an initial rating in excess of 10 percent for migraines have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.124a, Diagnostic Code (DC) 8100.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from July 2011 to July 2015.  The Board thanks the Veteran for his service.

In the February 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket and identified the July 19, 2024 rating decision as the decision on appeal. [Reading this form in the light most favorable to the Veteran, the Board construes this as a disagreement with the July 18, 2024 rating decision addressing migraine.]

In May 2024, the appellant submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of an April 2024 rating decision that denied service connection for migraines. A Higher-Level Reviewer determined that there had been a duty to assist error and the issue was returned for further development. The claim moved to the supplemental claim lane as a result. On July 22, 2024, the agency of original jurisdiction (AOJ) issued the decision on appeal, which considered the evidence of record at the time of the July 18, 2024 rating decision. Therefore, the Board may only consider the evidence of record at the time of the July 2024 rating decision.  Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 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.  38 C.F.R. § 3.2501.  If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered.  Id.  Specific instructions for filing a Supplemental Claim are included with this decision. 

The Board recognizes that in a September 2024 VA Form 10182 the Veteran attempted to appeal the rating decision issued July 1, 2024, which deferred a decision on entitlement to compensation for chronic migraines. A deferred decision does not constitute an adjudicative determination from which a notice of disagreement may be filed. See 38 C.F.R. § 20.201; Shipley v. Shinseki, 24 Vet. App. 458 (2011) (concluding that a deferred rating decision does not constitute an appealable adjudicative action). Accordingly, the Veteran's claim for an increased initial rating for migraines will be addressed in this decision.

Lastly, the Board has recognized the Texas Veterans Commission (TVC) as the Veteran's representative, advised TVC that the Veteran currently had at least one appeal pending before the Board, and that they may submit argument in support of any pending appeals. See February 2026 POA Recognition letter.

Entitlement to an initial rating in excess of 10 percent for migraines

The Veteran seeks an initial rating in excess of 10 percent for his migraine headaches.  The appeal period is from March 1, 2024, the effective date of service connection, to July 22, 2024, the notification date of the rating decision on appeal. The Veteran's migraine headache disability is rated under Diagnostic Code 8100.  Prior to the rating decision on appeal, he did not present specific evidence as to the level of disability other than what was documented by the VA examiners.  

Migraine headaches are rated under 38 C.F.R. § 4.124a, DC 8100, which provides for a 10 percent rating for migraines with characteristic prostrating attacks average one in 2 months over the last several months.  A 30 percent rating is assigned for migraines with prostrating attacks occurring on an average once a month
 effective date of service connection, to July 22, 2024, the notification date of the rating decision on appeal. The Veteran's migraine headache disability is rated under Diagnostic Code 8100.  Prior to the rating decision on appeal, he did not present specific evidence as to the level of disability other than what was documented by the VA examiners.  

Migraine headaches are rated under 38 C.F.R. § 4.124a, DC 8100, which provides for a 10 percent rating for migraines with characteristic prostrating attacks average one in 2 months over the last several months.  A 30 percent rating is assigned for migraines with prostrating attacks occurring on an average once a month over the last several months.  A 50 percent rating, the maximum rating under Code 8100, is assigned where migraine headaches are manifested by very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability.  Id.

The rating criteria of Code 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.  Johnson, 30 Vet. App. at 252; Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007) (where diagnostic criteria are clearly joined in the conjunctive, a claimant must demonstrate all criteria enumerated).  

There are several terms within Code 8100 that are not defined in the regulation itself but have been previously analyzed and defined by the Court.  See Johnson, 30 Vet. App. at 247.  "Prostrating" means "lacking in vitality or will: powerless to rise: laid low."  Id. at 252.  Thus, "Because [Code] 8100 specifically governs migraine headaches, the phrase 'characteristic prostrating attacks' plainly describes migraine attacks that typically produce powerlessness or a lack of vitality.'"  Id. at 252.  The Court then explained that the modifier "completely," as used before "prostrating" in the 50 percent criteria, meant that the veteran must be rendered entirely powerless and that "productive of severe economic inadaptability" means either producing or capable of producing severe economic inadaptability."  Id. at 253; see also Pierce v. Principi, 18 Vet. App. 440 (2004) (holding the term "productive of economic inadaptability" means either producing or capable of producing severe economic inadaptability).

Further, in rating headaches or migraines under Code 8100, the Board may not consider the ameliorative effects of medication.  See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012).

Finally, the Board also notes the holding of Holmes v. Wilkie, 33 Vet. App. 67 (2020) where the Court held that Code 8100 contemplates migraine headaches which is more than just headaches.  In other words, in assessing the duration, frequency, and severity of the Veteran's symptoms in applying Code 8100, the Board must be cognizant that Code 8100 meant to compensate a "migraine" disability, which is not just throbbing headache pain, but often accompanied by nausea, vomiting, and sensitivity to light or sound, and is sometimes preceded by an aura and is often followed by fatigue.  Id. at 71 (citing Merriam-Webster.com Dictionary definition of "Migraine").

The Board finds that the persuasive weight of the evidence is against an initial rating in excess of 10 percent for the Veteran's migraines. 

The January 2024 VA examination report shows that the Veteran reported his headaches had progressed since 2013 and described them as spreading to the frontal face, to the middle of the head, and feeling that he was losing focus. He endorsed headache pulsating or throbbing head pain localized to the front and middle of the head which worsens with physical activity.  Non-headache symptoms were identified as nausea, sensitivity to light and sound, and changes in vision.  He reported treatment with an over-the-counter pain reliever.  The duration of the Veteran's headaches typically less than one day, and he had characteristic prostrating attacks once in 2 months.  The examiner also noted that the Veteran had no completely prostrating attacks. It was noted that occupational tasks that require total concentration, machine or equipment operations and driving must be avoided by the Veteran to prevent accident. The March 2024 VA examination report noted the Veteran was in law
 he was losing focus. He endorsed headache pulsating or throbbing head pain localized to the front and middle of the head which worsens with physical activity.  Non-headache symptoms were identified as nausea, sensitivity to light and sound, and changes in vision.  He reported treatment with an over-the-counter pain reliever.  The duration of the Veteran's headaches typically less than one day, and he had characteristic prostrating attacks once in 2 months.  The examiner also noted that the Veteran had no completely prostrating attacks. It was noted that occupational tasks that require total concentration, machine or equipment operations and driving must be avoided by the Veteran to prevent accident. The March 2024 VA examination report noted the Veteran was in law enforcement.

In the March 2024 VA examination, the Veteran endorsed constant head pain, pulsating or throbbing in nature, localized to one side of his head.  Non-headache symptoms included sensitivity to light.  The Veteran reported treatment with an over-the-counter pain reliever and PRN.  The Veteran reported the duration of his headaches lasting less than one day with pain typically on the left side of his head, and he experienced characteristic prostrating attacks once in 2 months.  The examiner also noted that the Veteran had no completely prostrating attacks. As to functional impairment, the Veteran reported he had lost 2-4 weeks work of time in the last 12 months. The examiner noted the Veteran was limited in activities which require focus and concentration during migraine episodes, such as using a computer.

The evidence persuasively shows that the Veteran's headache disability did not involve characteristic prostrating attacks occurring on an average once a month over the last several months so as to warrant the next higher 30 percent rating.  See 38 C.F.R. § 4.124a, Code 8100.  At worst, as noted on the January and March 2024 VA Headaches examination reports, the Veteran experienced characteristic prostrating attacks averaging once in 2 months. As noted above, the rating criteria of Code 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, supra.  Because the evidence does not show the Veteran experiences prostrating attacks occurring on an average once a month over the last several months, the criteria required for the next higher 30 percent rating, a 50 percent rating also cannot be assigned.  

Additionally, the Veteran's service-connected migraine headaches disability is listed in VA's schedule for rating disabilities.  As such, it would be inappropriate to rate this disability by analogy to any other Codes.  Copeland v. McDonald, 27 Vet. App. 333, 337 (2015).

The Board has considered the Veteran's statements regarding his headache pain and the impact on his daily life.  As a lay person, the Veteran is competent to provide probative opinions on certain subjective medical issues and of observable symptomatology, including prostrating periods of headache pain.  See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).  However, the Board finds the Veteran's reported symptoms, considered in combination with the VA Headaches examination, do not rise to the level of characteristic prostrating attacks of headache pain occurring on an average once a month at any time during the appeal period.  The findings shown in the January and March 2024 VA headaches examination reports directly address the criteria under which the Veteran's headache disability is evaluated, and the objective medical evidence is afforded greater weight than his subjective complaints.

When the rating criteria do not contemplate the effects of medication, VA is required to discount the ameliorative effects of any medication., 38 Vet. App. 130 (2025). The rating criteria for migraine does not discuss medication. However, there is nothing in the record, to include the Veteran's own contentions, that suggests he would have symptoms productive of impairment warranting a higher rating without consideration of any intermittent ameliorating effects due to the use of Tylenol.

Additionally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record with respect to his headaches.  See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

Accordingly, the Board concludes that the evidence is persuasively against the claim for a rating in excess of 10 percent for migraine headaches.  As the evidence is persuasively
 productive of impairment warranting a higher rating without consideration of any intermittent ameliorating effects due to the use of Tylenol.

Additionally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record with respect to his headaches.  See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

Accordingly, the Board concludes that the evidence is persuasively against the claim for a rating in excess of 10 percent for migraine headaches.  As the evidence is persuasively against the assigment of an increased rating, the benefit-of-the-doubt rule does not apply and the claim must be denied.  38 U.S.C. § 5107(b); Lynch v. McDonough, 21 F. 4 th 776 (Fed. Cir. 2021) (only when the evidence 

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persuasively favors one side or another is the benefit of the doubt doctrine not for application).

 

 

M. C. GRAHAM

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	D. Makarenko, Associate Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.