MIGRAINE

Summary

The Veteran served from March 2004 to May 2004 and October 2004 to July 2011. The Veteran sought a higher rating for migraine headaches, claiming entitlement to a rating higher than 50 percent for the period beginning October 16, 2020. The agency of original jurisdiction (AOJ) granted service connection for migraine headaches effective July 3, 2011, and assigned a 50 percent rating effective October 16, 2020. The Veteran appealed, seeking a higher rating and contesting the effective date prior to October 16, 2020. The Board reviewed the evidence, including a November 2020 VA examination and the Veteran's testimony from a June 2024 hearing. The Board denied the appeal for a rating higher than 50 percent, finding that the maximum schedular rating contemplated very frequent headaches resulting in severe economic inadaptability and that the record did not support an extraschedular rating. However, the Board remanded the claim for a compensable rating prior to October 16, 2020. This remand was based on the need for a VA opinion to assess the severity of migraines without the ameliorative effects of medication, as Diagnostic Code 8100 does not contemplate medication usage, citing Jones v. Shinseki and Ingram v. Collins. The examiner did not address the severity prior to medication's effects. The Board also noted a pre-decisional duty to assist error.

Rationale

Maximum schedular rating contemplates severe economic inadaptability; Record does not support extraschedular rating; Veteran's testimony of missing work despite treatment did not meet extraschedular criteria

Full Decision Text

Citation Nr: A26037717
Decision Date: 04/22/26	Archive Date: 04/22/26

DOCKET NO. 201207-128565
DATE: April 22, 2026

ORDER

Entitlement to a rating higher than 50 percent for migraine headaches, beginning October 16, 2020, is denied.

REMANDED

A compensable rating for migraine headaches, prior to October 16, 2020, is remanded.

FINDING OF FACT

Beginning October 16, 2020, the Veteran is in receipt of the highest evaluation of migraine headaches under the Rating Schedule; an extraschedular disability picture is not shown.

CONCLUSION OF LAW

Beginning October 16, 2020, the criteria for an evaluation of migraine headaches in excess of 50 percent have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.124a, Diagnostic Code 8100.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from March 2004 to May 2004, and from October 2004 to July 2011.

In October 2020, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of entitlement to service connection for a migraine disability which was last addressed in the November 2013 rating decision. 

In November 2020, the agency of original jurisdiction (AOJ) issued the supplemental claim decision on appeal, which reopened the claim, finding that new and relevant evidence had been received, and granted service connection for migraine headaches, effective July 3, 2011.

In the November 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on June 10, 2024.

Therefore, the Board may only consider the evidence of record at the time of the November 2020 AOJ decision on appeal, as well as any evidence submitted by the Veteran, or representative, at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 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. 

However, because the Board is remanding the claim for a compensable rating for migraine headaches prior to October 16, 2020, any evidence the Board could not consider will be considered by the AOJ in the adjudication of the claim. 38 C.F.R. § 3.103(c)(2)(ii).

A rating higher than 50 percent for migraine headaches, since October 16, 2020.

The Veteran is seeking a higher rating for her headaches for the period associated with this appeal stream. Her VA Form 10182 was filed in December 2020, at which time the rating for her headaches was noncompensable (0 percent disabling). However, later in December 2020, the AOJ granted a 50 percent rating for headaches, effective October 16, 2020.

Migraine headaches are rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100, for migraine.  

Under Diagnostic Code 8100, a noncompensable rating is warranted for migraines with less frequent attacks.  A 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over the last several months.  A 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months.  The maximum schedular 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.  

 

As noted, the maximum 50 percent rating was awarded effective October 16, 202
 4.124a, Diagnostic Code 8100, for migraine.  

Under Diagnostic Code 8100, a noncompensable rating is warranted for migraines with less frequent attacks.  A 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over the last several months.  A 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months.  The maximum schedular 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.  

 

As noted, the maximum 50 percent rating was awarded effective October 16, 2020. AB v. Brown, 6 Vet. App. 35, 38-39 (1993). To the extent that the Veteran contends a higher rating is warranted, one would only be awarded based on an extraschedular disability picture, that is, where "application of the regular schedular standards is impractical because the disability is so exceptional or unusual due to such related factors as marked interference with employment or frequent periods of hospitalization." 38 C.F.R. § 3.321(b)(1). While the Veteran's hearing testimony at her June 2024 Board hearing indicated that she still missed some work despite several forms of headache treatment, the 50 percent rating assigned does contemplate very frequent headaches resulting in severe economic inadaptability. Moreover, the record does not show that the Veteran was hospitalized for her headaches. Thus, referral for consideration of an extraschedular rating is not warranted. The appeal for a rating higher than 50 percent disabling beginning October 16, 2020, is denied.

The Board has considered the doctrine of reasonable doubt but has determined that it is inapplicable, because the evidence is persuasively against the assignment of higher ratings beyond that awarded by this decision. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7.

REASONS FOR REMAND

Entitlement to a compensable rating for migraine headaches, prior to October 16, 2020.

As noted, the Veteran's service-connected migraines are rated as noncompensable under 38 C.F.R. § 4.124a, Diagnostic Code 8100, prior to October 16, 2020. She contends, to include during her June 2024 Board hearing, that her migraine headaches warrant a higher rating. See Board Hearing Transcript, Page 2.

During a November 2020 VA examination to evaluate the severity of the Veteran's migraine condition, the Veteran indicated that she used over-the-counter (OTC) medications to treat her migraines. Specifically, she discussed taking medication in dates prior October 16, 2020, for which the noncompensable rating is currently assigned. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012) (finding that the Board cannot deny a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria). In a recent U.S. Court of Appeals for Veterans Claims (Court) decision, Ingram v. Collins, 38 Vet. App. 130 (2025), the Court held that in accordance with their holding in Jones, where the diagnostic codes do not reference medication, the Board must discount the beneficial medication effects when assigning an evaluation.  As detailed above, Diagnostic Code 8100 does not contemplate medication usage and therefore Jones and Ingram apply.

Here, the November 2020 VA examiner did not address the severity of the Veteran's migraines headaches prior to October 16, 2020, without the ameliorative effects of medication. The Board is not permitted to substitute its own medical judgment for that of medical professionals. Colvin v. Derwinski, 1 Vet. App. 171 (1991) (stating that the Board may consider only independent medical evidence to support their findings and that if the Board finds that the medical evidence of record is insufficient, then it may supplement the record by seeking an advisory opinion or ordering a medical examination). Therefore, a remand is required to obtain a VA opinion addressing the severity of the Veteran's migraines without the ameliorative effects of medication and to correct a pre-decisional duty to assist error.  

The matter is REMANDED for the following action:

1. Arrange for an opinion from an appropriately qualified clinician to determine the severity of the Veteran's service-connected migraines for the period prior to October 16, 2020, when discounting any ameliorative effects of medication. 

(Continued on the next page)

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2. After discounting the beneficial effects of medication, the examiner should opine
 is insufficient, then it may supplement the record by seeking an advisory opinion or ordering a medical examination). Therefore, a remand is required to obtain a VA opinion addressing the severity of the Veteran's migraines without the ameliorative effects of medication and to correct a pre-decisional duty to assist error.  

The matter is REMANDED for the following action:

1. Arrange for an opinion from an appropriately qualified clinician to determine the severity of the Veteran's service-connected migraines for the period prior to October 16, 2020, when discounting any ameliorative effects of medication. 

(Continued on the next page)

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2. After discounting the beneficial effects of medication, the examiner should opine on the frequency and severity of the Veteran's migraines, including whether her migraine headache symptoms more nearly approximate characteristic prostrating attacks or completely prostrating and prolonged attacks, and the degree to which the headaches resulted in economic inadaptability. (A characteristic prostrating attack was defined by the Court as a migraine attack that typically produced powerlessness or a lack of vitality. Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018))

 

 

J. Kirby

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T.B.

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