CERVICAL SPINE LIMITATION OF MOTION

Summary

The veteran, who served in the Navy from April 2012 to April 2017, appeals the denial of service connection for cervical strain and left hip myofascial syndrome, both claimed as secondary to service-connected lumbar disability. The veteran also sought an increased rating for migraines from May 7, 2021, to present, and entitlement to Dependents' Education Assistance (DEA) benefits. The Board found that the first element of service connection (current diagnosis) was met for both the cervical strain and left hip disability, as favorably found by the AOJ. However, for the cervical strain, the Board found the evidence persuasively against a secondary service connection, giving greater weight to negative VA medical opinions from February and September 2023 and September 2024, which concluded no causal relationship existed between the lumbar and cervical spine conditions. The Board found the private opinion from Dr. B.B. less persuasive due to its lack of baseline severity analysis. For the left hip disability, the Board also found the evidence persuasively against secondary service connection, again favoring the negative nexus opinions from the February and September 2023/2024 VA examinations over the private opinion. Regarding migraines, the Board found the Veteran's claim for a 50 percent rating warranted, resolving doubt in his favor due to frequent, prostrating attacks impacting employability, and granted this rating from May 7, 2021, to present. This 50 percent rating, combined with other service-connected disabilities, resulted in a 100 percent combined rating, making the Veteran eligible for DEA benefits, which were also granted with the May 7, 2021, effective date. Service connection for cervical strain and left hip disability were denied.

Rationale

Favorable AOJ finding for diagnosis of cervical strain.; Negative nexus opinions from VA examiners (Feb 2023, Sep 2024).; Private opinion less persuasive due to lack of baseline severity analysis.

Full Decision Text

Citation Nr: A26034621
Decision Date: 04/14/26	Archive Date: 04/14/26

DOCKET NO. 250109-507346
DATE: April 14, 2026

ORDER

Entitlement to service connection for cervical strain, as secondary to service-connected degenerative disc disease with annular tear L4-5 and L5-S1 ("lumbar disability"), is denied.

Entitlement to service connection for left hip myofascial syndrome with pain ("left hip disability"), as secondary to service-connected lumbar disability, is denied.

Entitlement to a rating of 50 percent for service-connected migraine associated with unspecified depressive disorder ("migraines"), from May 7, 2021, to present, is granted.

Entitlement to an effective date of May 7, 2021, for the award of entitlement to basic eligibility for Dependents' Education Assistance (DEA) granted.

FINDINGS OF FACT

1. The Veteran's cervical strain is not caused by, or aggravated by, his service-connected disabilities.

2. The Veteran's left hip disability is not caused by, or aggravated by, his service-connected disabilities.

3. Resolving doubt in the Veteran's favor, the Veteran's migraines have manifested in very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability.

4. With the award of a 50 percent rating for the Veteran's service-connected migraines, the Veteran has a combined evaluation of 100 percent for his service-connected disabilities warranting DEA benefits, effective May 7, 2021.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for cervical strain, as secondary to service-connected lumbar disability, are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310.

2. The criteria for entitlement to service connection for left hip disability, as secondary to service-connected lumbar disability, are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310.

3. The criteria for a rating of 50 percent for service-connected migraines effective May 7, 2021, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.114, Diagnostic Code (DC) 8100.

4. The criteria for entitlement to DEA are met, effective May 7, 2021. 38 U.S.C. §§ 5101, 5107; 38 C.F.R. § 3.102, 3.151.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the Navy from April 2012 to April 2017.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2024 rating decision and a September 2024 higher-level review rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), also known as the Agency of Original Jurisdiction (AOJ), with the September 2024 rating decision adjudicating the Veteran's request for higher-level review of a prior October 2023 rating decision.

In the January 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket.

Therefore, the Board may only consider the evidence of record at the time of the August 2024 AOJ decision on appeal, as well as the October 2023 rating decision on appeal, which was subsequently subject to higher-level review. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decisions 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[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 5107;
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[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 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.  See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 

Service connection for a disability may also be granted on a secondary basis if a Veteran has: (1) a current disability; and (2) the current disability was either (a) caused or (b) aggravated beyond its natural progression by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995).

When there is an approximate 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 claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the evidence is persuasively against the claim, in which case the claim is denied. Id.

1. Entitlement to service connection for cervical strain, as secondary to service-connected degenerative disc disease with annular tear L4-5 and L5-S1 ("lumbar disability"), is denied.

The Veteran asserts that he suffers from cervical strain which is caused by, or aggravated by, his service-connected disabilities.  See September 2022 VA Form 21-4138 Statement in Support of Claim; January 2025 NOD.

The Veteran was afforded multiple VA examinations for his neck (cervical spine) conditions, including in February 2023, where the Veteran was diagnosed with cervical strain.  Moreover, in its September 2024 rating decision, the AOJ favorably found that the Veteran has a diagnosis of cervical strain.  The Board is bound by favorable findings by the AOJ in the absence of evidence of clear and unmistakable error. 38 C.F.R. § 3.104 (c).  The Board finds, therefore, that the first element of service connection has been met.  38 U.S.C. §§ 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).

The Veteran has been awarded service connection for numerous disabilities, including a lumbar disability. As such, the remaining question for the Board is whether there is a link between the Veteran's service-connected disabilities and his cervical strain.  After careful consideration of the evidence, the Board finds that the evidence is at least approximately balanced as to whether the Veteran's cervical strain is caused by his service-connected disabilities.

In this regard, in August 2021 the Veteran submitted a private medical report and opinion by Dr. B.B, who indicated that he examined the Veteran and conducted a review of his service and medical records.   Dr. B.B. opined that it is more likely than not that the Veteran's cervical strain is secondarily caused by his service-connected lumbar disability.  Dr. B.B. reasoned that the Veteran's pertinent medical history, combined with the relevant medical literature, supports the conclusion that a disability of the lumbar spine can, and in this case did, lead to aggravation of the cervical spine. 

The Veteran was afforded several VA medical opinions relating to his cervical strain, including September 2021, February 2023, and September 2024.

The September 2021 VA medical opinion found no diagnosis and did not provide a nexus, despite finding a diagnosis of cervical strain in the associated Disability Benefits Questionnaire (DBQ).

The February 202
. opined that it is more likely than not that the Veteran's cervical strain is secondarily caused by his service-connected lumbar disability.  Dr. B.B. reasoned that the Veteran's pertinent medical history, combined with the relevant medical literature, supports the conclusion that a disability of the lumbar spine can, and in this case did, lead to aggravation of the cervical spine. 

The Veteran was afforded several VA medical opinions relating to his cervical strain, including September 2021, February 2023, and September 2024.

The September 2021 VA medical opinion found no diagnosis and did not provide a nexus, despite finding a diagnosis of cervical strain in the associated Disability Benefits Questionnaire (DBQ).

The February 2023 VA medical opinion provided a negative nexus, opining that the medical literature indicates that the cervical spine is a separate entity entirely from the lumbar spine.  As such, the examiner concluded that there is not a causal relationship between the Veteran's cervical strain and lumbar disability.

The September 2024 VA medical opinion again provided a negative nexus, seconding the opinion of the February 2023 VA examiner that there is not a causal relationship between the Veteran's cervical strain and lumbar disability, and that the medical literature indicates that the cervical spine is a separate entity entirely from the lumbar spine.

In light of the foregoing, the Board finds that the evidence does not support that the Veteran's cervical strain is secondarily related to his service-connected disabilities, including his lumbar disability.  The Board finds that the February 2023 and September 2024 VA medical opinions provide a sufficiently thorough rationale for a negative nexus, which the Board finds probative and persuasive.  While the Board acknowledges the submission by the Veteran of the private DBQ of Dr. B.B., the Board notes that Dr. B.B.'s opinion is predicated upon aggravation of the Veteran's cervical strain by his service-connected disabilities, but does not establish a baseline severity of cervical strain prior to aggravation by the Veteran's service-connected disabilities.  As such, this opinion cannot be used to establish service connection on that basis, and the Board affords greater probative value to the opinions of the February 2023 and September 2024 VA examiners.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("Most of the probative value of a medical opinion comes from its reasoning" and a medical opinion is not "entitled to any weight....if it contains only data and conclusions.").

The Board recognizes that the Veteran believes his cervical strain is secondarily related to a service-connected disability. The Board notes that there are instances in which a layperson may be competent to offer testimony on medical matters, such as describing symptoms observable to the naked eye or even diagnosing simple conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds, however, that the questions posed by this claim are of such complexity as to require that individuals who provide competent medical evidence on this matter possess a level of expertise that a layperson simply does not possess. Specifically, the Board finds that the Veteran, as a layperson, is not competent to provide a medical rationale to support a link between his service-connected disability and his claimed disability.  The Board finds, therefore, that the foregoing VA medical opinion outweighs the Veteran's contentions in these circumstances.

As the foregoing evidence is persuasively against the Veteran's claim for service connection, there is no reasonable doubt to resolve in the Veteran's favor. Lynch v. McDonough, 21 F.4th 776, 781-82 (2021). Accordingly, the claim for entitlement to service connection for cervical strain, as secondary to service-connected disabilities, is denied.

2. Entitlement to service connection for left hip myofascial syndrome with pain ("left hip disability"), as secondary to service-connected lumbar disability, is denied.

The Veteran asserts that he suffers from a left hip disability which is caused by, or aggravated by, his service-connected disabilities.  See September 2022 VA Form 21-4138 Statement in Support of Claim; January 2025 NOD.

The Veteran was afforded multiple VA examinations for his hip and thigh conditions, including in February 2023, where the Veteran was diagnosed with myofascial syndrome.  Moreover, in its September 2024 rating decision, the AOJ favorably found that the Veteran has a diagnosis of myofascial syndrome.  The Board is bound by favorable findings by the AOJ in the absence of evidence of clear and unmistakable error. 38 C.F.R. § 3.104 (c).  The Board finds, therefore, that the first element of service connection has been met.  38 U
  See September 2022 VA Form 21-4138 Statement in Support of Claim; January 2025 NOD.

The Veteran was afforded multiple VA examinations for his hip and thigh conditions, including in February 2023, where the Veteran was diagnosed with myofascial syndrome.  Moreover, in its September 2024 rating decision, the AOJ favorably found that the Veteran has a diagnosis of myofascial syndrome.  The Board is bound by favorable findings by the AOJ in the absence of evidence of clear and unmistakable error. 38 C.F.R. § 3.104 (c).  The Board finds, therefore, that the first element of service connection has been met.  38 U.S.C. §§ 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).

The Veteran has been awarded service connection for numerous disabilities, including a lumbar disability. As such, the remaining question for the Board is whether there is a link between the Veteran's service-connected disabilities and his left hip disability.  After careful consideration of the evidence, the Board finds that the evidence is at least approximately balanced as to whether the Veteran's left hip disability is caused by his service-connected disabilities.

In this regard, in August 2021 the Veteran submitted a private medical report and opinion by Dr. B.B, who indicated that he examined the Veteran and conducted a review of his service and medical records.   Dr. B.B. opined that it is more likely than not that the Veteran's left hip disability is secondarily caused by his service-connected lumbar disability.  Dr. B.B. reasoned that the Veteran's pertinent medical history, combined with the relevant medical literature, supports the conclusion that a disability of the lumbar spine can, and in this case did, lead to aggravation of the left hip.

The Veteran was afforded several VA medical opinions relating to his left hip, including September 2021, February 2023, and September 2024.

The September 2021 VA medical opinion found no diagnosis and did not provide a nexus.

The February 2023 VA medical opinion provided a positive nexus opinion for secondary service connection.  The examiner concluded that the Veteran's left hip disability is at least as likely as not caused by the Veteran's service-connected pes planus.

The September 2024 VA medical opinion again provided a negative nexus, seconding the opinion of the February 2023 VA examiner that there is not a causal relationship between the Veteran's left hip disability and lumbar disability, and that the medical literature indicates that the left hip is a separate entity entirely from the lumbar spine. 

In light of the foregoing, the Board finds that the evidence does not support that the Veteran's left hip disability is secondarily related to his service-connected disabilities, including his lumbar disability.  The Board finds that the February 2023 and September 2024 VA medical opinions provide a sufficiently thorough rationale for a negative nexus, which the Board finds probative and persuasive.  While the Board acknowledges the submission by the Veteran of the private DBQ of Dr. B.B., the Board notes that Dr. B.B.'s opinion is predicated upon aggravation of the Veteran's left hip disability by his service-connected disabilities, but does not establish a baseline severity of left hip disability prior to aggravation by the Veteran's service-connected disabilities.  As such, this opinion cannot be used to establish service connection on that basis, and the Board affords greater probative value to the opinions of the February 2023 and September 2024 VA examiners.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("Most of the probative value of a medical opinion comes from its reasoning" and a medical opinion is not "entitled to any weight....if it contains only data and conclusions.").

The Board recognizes that the Veteran believes his left hip disability is secondarily related to a service-connected disability. The Board notes that there are instances in which a layperson may be competent to offer testimony on medical matters, such as describing symptoms observable to the naked eye or even diagnosing simple conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds, however, that the questions posed by this claim are of such complexity as to require that individuals who provide competent medical evidence on this matter possess a level of expertise that a layperson simply does not possess. Specifically, the Board finds that the Veteran, as a layperson, is not competent to provide a medical rationale to support a link between his service-connected disability and his claimed disability.
 to a service-connected disability. The Board notes that there are instances in which a layperson may be competent to offer testimony on medical matters, such as describing symptoms observable to the naked eye or even diagnosing simple conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds, however, that the questions posed by this claim are of such complexity as to require that individuals who provide competent medical evidence on this matter possess a level of expertise that a layperson simply does not possess. Specifically, the Board finds that the Veteran, as a layperson, is not competent to provide a medical rationale to support a link between his service-connected disability and his claimed disability.  The Board finds, therefore, that the foregoing VA medical opinion outweighs the Veteran's contentions in these circumstances.

As the foregoing evidence is persuasively against the Veteran's claim for service connection, there is no reasonable doubt to resolve in the Veteran's favor. Lynch v. McDonough, 21 F.4th 776, 781-82 (2021). Accordingly, the claim for entitlement to service connection for left hip disability, as secondary to service-connected disabilities, is denied.

Evaluation and Effective Date for Migraines

The Veteran contends that his service-connected migraines warrant a rating of 50 percent from May 7, 2021, to present.  See January 2025 NOD & Representative Brief.

By way of procedural history, the Veteran submitted a VA Form 21-0966 Intent to File on May 7, 2021.  The Veteran then filed a VA Form 21-526EZ on August 12, 2021, seeking service connection for tension headaches.  By rating decision dated October 1, 2021, the AOJ denied this claim.  The Veteran then filed a VA Form 20-0996 Request for Higher-Level Review on September 24, 2022.  By rating decisions dated November 29, 2022, and October 17, 2023, the AOJ deferred adjudication of this claim in order to further develop the record.  By rating decision dated November 29, 2023, the AOJ granted service connection for tension headaches, with an evaluation of 30 percent, effective May 7, 2021, and a noncompensable evaluation effective February 22, 2023.  The Veteran then filed a VA Form 20-0995 Supplemental Claim on April 16, 2024.  By rating decision dated August 2, 2024, the AOJ increased the Veteran's evaluation for his migraines to 30 percent, effective May 1, 2024.  The Veteran then timely filed the January 2025 NOD.

Under the AMA, a determination on a claim by the AOJ becomes final unless the claimant continuously pursues the claim by filing a supplemental claim, a request for higher-level review, or an appeal to the Board within one year of the date the AOJ mails notice of the decision. 38 C.F.R. §§ 20.1103, 3.2500(c)(1). If a claimant continuously pursues an issue by filing one of these administrative review options within one year, the effective date will be the date of receipt of the initial claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.2500(h)(1). If a supplemental claim is received more than one year after the date on which the AOJ issued notice of a decision, the effective date will be the date of receipt of the supplemental claim, or the date entitlement arose, whichever was later. 38 C.F.R. §§ 3.400, 3.2500(h)(2).

In the instant matter, the Board finds that the Veteran has continuously pursued his claim for service connection for, and an increased evaluation for, his migraines since the filing of his May 7, 2021, Intent to File.  The Board will now turn to the issue of whether the evidence of record supports an evaluation of 50 percent for the Veteran's migraines for some or all of the period on appeal.

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. 

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the
 an evaluation of 50 percent for the Veteran's migraines for some or all of the period on appeal.

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. 

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. 

A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). However, where the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999).

The Veteran's migraines are rated under Diagnostic Code 8100.  The disability is currently rated at 30 percent from May 7, 2021, to February 22, 2023, at a noncompensable level from February 22, 2023, to May 1, 2024, and at 30 percent from May 1, 2024, to present.

Under DC 8100, a non-compensable rating is warranted for headaches with less frequent attacks. A 10 percent rating is assigned when there are characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent disability rating is assigned for headaches with characteristic prostrating attacks occurring on an average of once a month over the last several months. 38 C.F.R. § 4.124a, DC 8100. Headaches manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a 50 percent disability rating. 38 C.F.R. § 4.124a, DC 8100.

VA regulations do not define "prostrating," and the term has not been defined by the United States Court of Appeals for Veterans Claims (Court). Cf. Fenderson v. West, 12 Vet. App. 119 (1999). By way of reference, the Board notes that, according to Merriam Webster's Collegiate Dictionary 999 (11th Ed. 2007), "prostration" is defined as "complete physical or mental exhaustion." A very similar definition is found in Dorland's Illustrated Medical Dictionary 1554 (31st Ed. 2007), in which "prostration" is defined as "extreme exhaustion or powerlessness." VA regulations also do not define "economic inadaptability." However, the Court has noted that nothing in DC 8100 requires the Veteran to be completely unable to work in order to qualify for a 50 percent rating. See Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004).

Turning to the evidence of record, in August 2021 the Veteran submitted a private medical report from Dr. B.B., who documented that the Veteran reported frequent, and completely prostrating and prolonged attacks that occur two to three times per week.  He reported that his migraine shave been more debilitating and frequent over time, causing significant disruptions to his work and personal life.  He reported symptoms of throbbing head pain, nausea, sensitivity to light, sensitivity to sound, and bilateral temporal issues.  He reported that his headaches typically last an entire day, with completely prostrating headaches lasting into the night and next day.  He reported that his headaches affect both sides of the head, temporal area, and radiate to the back of his head and all over his head.  He reported completely prostrating attacks of headache pain at least 3-4 times per month, with less severe headaches even more often.

The Veteran was afforded a
 that occur two to three times per week.  He reported that his migraine shave been more debilitating and frequent over time, causing significant disruptions to his work and personal life.  He reported symptoms of throbbing head pain, nausea, sensitivity to light, sensitivity to sound, and bilateral temporal issues.  He reported that his headaches typically last an entire day, with completely prostrating headaches lasting into the night and next day.  He reported that his headaches affect both sides of the head, temporal area, and radiate to the back of his head and all over his head.  He reported completely prostrating attacks of headache pain at least 3-4 times per month, with less severe headaches even more often.

The Veteran was afforded a VA examination for his headaches/migraines in September 2021.  The Veteran reported an onset of symptoms in 2018, which he described as throbbing, with photo/phono sensitivity, nausea, occasional vomiting, and headaches once per week.  He reported that the symptoms have persisted, but that his headaches have worsened and are now three times per week, which he treats with pain medication.  He reported symptoms of pulsating or throbbing head pain, pain which worsens with physical activity, nausea, vomiting, sensitivity to light, sensitivity to sound.  He reported a duration of this pain of less than 1 day and that the pain affects both sides of his head.  The examiner indicated that the Veteran experiences prostrating attacks of headache pain once every month, and that the Veteran's headaches would impact his employability because he has lost 2-4 weeks of work in the last 12 months.

The Veteran was afforded another VA examination for his headaches/migraines in February 2023.  The Veteran reported symptoms of left-sided pain with light sensitivity, nausea, and vomiting.  He reported that he has constant mild headaches and 2-3 migraines per month.  He reported current symptoms of constant head pain, pain localized to one side of the head, nausea, vomiting, sensitivity to light, sensitivity to sound, and changes in vision.  He reported a duration of the pain of less than 1 day and that the pain affects the left side of his head.  The examiner indicated that the Veteran does not experience prostrating attacks of headache pain but that the Veteran's headaches would impact his employability in that he lost 0-1 week work time in the past 12 months due to severe incapacitating migraines.

The Veteran submitted a Statement in Support of Claim in April 2024, in which the Veteran averred that he suffers from migraines at least once a week.  He indicated that pain medications have had little effect in treating his migraines, and that his migraines have caused severe work disruptions due to absenteeism.  He further indicated that his migraines have caused him to miss significant events in his personal life, including children's birthday parties.  He averred that he has to lay down in quiet, dark locations at least 5 times per month in order to cope with his migraines.

The Veteran was afforded another VA examination for his headaches/migraines in May 2024.  The Veteran reported symptoms of constant head pain, pain localized to one side of the head, nausea, vomiting, sensitivity to light, sensitivity to sound, and changes in vision.  He reported a duration of the pain of less than 1 day and that the pain affects the left side of his head.  The examiner indicated that the Veteran experiences prostrating attacks of headache pain once every month and that the Veteran's headaches would impact his employability because when he has a migraine he is required to rest in a dark place and is unable to complete tasks, and he would miss work due to the inability to focus due to sensitivity to light when migraines occur.

The Board has also carefully reviewed the Veteran's VA and private treatment records, which affirm his diagnosis of migraine headaches and indicate, in pertinent part, that he suffers from frequent, often severe, headaches.  See December 2023 VAMC treatment record (Veteran's main concern today is that he gets daily headaches); (February 2024 VAMC treatment record (Veteran suffers from frequent, "very severe" headaches with symptoms of nausea, sensitivity to light and sound, etc).

As previously outlined above, the Veteran currently has a staged rating for his migraines of 30 percent from May 7, 2021, to February 22, 2023, a noncompensable rating from February 22, 2023, to May 1, 2024, and a rating of 30 percent from May 1, 2024, to present. The Veteran, through his representative, asserts that the AOJ erred by arbitrarily setting the date of the reduction to a noncompensable rating for this condition based on the date
 2024 VAMC treatment record (Veteran suffers from frequent, "very severe" headaches with symptoms of nausea, sensitivity to light and sound, etc).

As previously outlined above, the Veteran currently has a staged rating for his migraines of 30 percent from May 7, 2021, to February 22, 2023, a noncompensable rating from February 22, 2023, to May 1, 2024, and a rating of 30 percent from May 1, 2024, to present. The Veteran, through his representative, asserts that the AOJ erred by arbitrarily setting the date of the reduction to a noncompensable rating for this condition based on the date of the February 2023 VA examination.  See January 2025 Representative Brief.  He further asserts that the VA examinations for headaches/migraines in 2021, 2023, and 2024 all fail to accurately document the frequency of the Veteran's prostrating attacks, and are contradicted by the Veteran's reports to his providers, the private medical report of Dr. B.B., and the Veteran's own lay statements.  Id.

In light of the foregoing, the Board agrees that the February 22, 2023, effective date for the decreased evaluation was arbitrarily set, a practice that was explicitly rejected in Swain v. McDonald, 27 Vet. App. 219 (2015).  Both the Veteran's lay statements, the VA and private treatment notes, and the private medical report of Dr. B.B. indicate that the Veteran's symptomatology and limitations from his migraine headaches have been consistent prior to, and subsequently to, February 22, 2023.  

Moreover, resolving reasonable doubt in favor of the Veteran, the Board agrees with the Veteran's representative that an evaluation of 50 percent is warranted for the Veteran's service-connected migraines for the entire period on appeal, from May 7, 2021, to present.  As the foregoing affirmatively demonstrates, the Veteran has consistently reported frequent, severe, and often debilitating migraines, which he claims cost him at least one job and which the private medical report of Dr. B.B. and the opinions of the foregoing VA examiners all agree would impact his employability.  As such, the Board finds that the record reflects that his migraines have manifested in very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability.

The Veteran is now evaluated at 50 percent for his service-connected migraines, which is the maximum schedular rating for this condition.

The Board has considered whether an extraschedular rating is warranted for the service-connected migraines. However, the Board notes the Veteran has not asserted that referral for extraschedular consideration is warranted, and the record does not otherwise reasonably raise the matter. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016).  Moreover, the evidence of record does not exhibit any signs, symptoms, or limitations not contemplated by the rating criteria. 38 C.F.R. § 3.321 (b); Thun v. Peake, 22 Vet. App. 111 (2008).  Therefore, referral for extraschedular consideration is not warranted.

Accordingly, a rating of 50 percent, but no higher, for service-connected migraines, is warranted from May 7, 2021, to present.

DEA Benefits

Dependents Educational Assistance (DEA) benefits may be paid to dependents of a Veteran who has a service-connected disability that is rated permanent and total. 38 U.S.C. §§ 3500, 3501, 3510; 38 C.F.R. §§ 3.807(a), 21.3021. A total disability may be assigned where a Veteran's service-connected disabilities are rated 100 percent disabling under the rating schedule, or if the Veteran is deemed unemployable due to service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341.

As noted above, the Board has now granted an evaluation of 50 percent for the Veteran's service-connected migraines for the entire period on appeal from May 7, 2021, to present.  As such, the Veteran's service-connected disabilities are now rated 100 percent disabling under the rating schedule from May 7, 2021, to present.

Accordingly, the Board finds that DEA benefits are warranted from May 7, 2021, to present, and the claim for an effective date of May 7, 2021, for DEA benefits is granted.

 

 

M. MILLS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	B. Hillman, Counsel

The Board's decision in this case is binding only with