MIGRAINE

Summary

The veteran, who served in the United States Marine Corps from April 2000 to November 2000 and again from January 2003 to July 2005, sought revision of a December 2007 rating decision that denied service connection for headaches. The veteran contended that the original decision contained clear and unmistakable error (CUE) because it failed to consider a March 2007 VA examination report which diagnosed tension headaches and provided a positive nexus opinion. The original decision denied the claim based on an asserted absence of "totally incapacitating headaches," a standard not required for service connection. The Board reviewed the case under the Appeals Modernization Act, noting that the original decision became final due to the veteran's failure to file a timely appeal. However, the Board found the veteran's CUE allegations met the threshold requirements. The Board determined that CUE existed because the December 2007 decision failed to consider the March 2007 positive VA opinion and misapplied the law by requiring a higher standard than necessary for service connection. The Board concluded that had the original decision properly considered the evidence and applied the benefit of the doubt standard, service connection for tension headaches would have been granted. Therefore, the Board granted the CUE motion and awarded service connection for tension headaches.

Rationale

CUE found due to failure to consider positive VA opinion; CUE found due to misapplication of law (requiring total incapacitation); Benefit of the doubt applied due to equipoise

Full Decision Text

Citation Nr: A26037929
Decision Date: 04/22/26	Archive Date: 04/22/26

DOCKET NO. 231120-394159
DATE: April 22, 2026

ORDER

Entitlement to revision of the December 2007 Rating Decision, in which entitlement to service connection for headaches was denied, based on clear and unmistakable error (CUE), is granted.

FINDINGS OF FACT

1. The December 2007 Rating Decision denying service connection for headaches became final when the Veteran failed to submit a timely Notice of Disagreement (NOD).  

2. The statutory or regulatory provisions extant at the time of the December 2007 Rating Decision were not correctly applied, the correct facts with regard to the claimed headache condition, as they were known at the time, were not before the RO in December 2007, and the failure to consider those facts and correctly apply those laws and regulations was undebatable and manifestly changed the outcome of the December 2007 Rating Decision.

CONCLUSION OF LAW

The criteria for entitlement to revision of the December 2007 Rating Decision, in which entitlement to service connection for headaches was denied, based on clear and unmistakable error (CUE), have been met.  38 U.S.C. § 5109A, 7105; 38 C.F.R. § 3.105.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Marine Corps from April 2000 to November 2000, and from January 2003 to July 2005

The rating decision on appeal was issued in July 2023 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.

In April 2023, the Veteran submitted a VA Form 20-0996 Higher-Level Review Request seeking review of a March 2023 Rating Decision. In July 2023, the agency of original jurisdiction (AOJ) issued the Rating Decision on appeal.  

In his November 2023 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 March 2023 AOJ decision. See 38 C.F.R. § 20.301.

Entitlement to revision of the December 2007 Rating Decision, in which entitlement to service connection for headaches was denied, based on clear and unmistakable error (CUE).

The Veteran asserts that there was clear and unmistakable error (CUE) in the December 2007 Rating Decision denying service connection for headaches, citing March 2007 and September 2007 C&P examination reports containing a diagnosis of tension headaches and a positive nexus opinion.  For the reasons that follow, the Board herein grants the Veteran's CUE motion and awards service connection for tension headaches.

CUE is a very specific and rare kind of error. It is the kind of error of fact or law that when called to the attention of later reviewers compels the conclusion to which reasonable minds could not differ that the result would have been manifestly different but for the error. Even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensured, the error complained of cannot be CUE. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993).

A three-part test determines whether a prior decision was based on CUE: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at that time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was CUE must be made on the record and law that existed at the time of the prior adjudication in question. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc).

A manifest change in the outcome of an adjudication means that, absent the alleged CUE, the benefit sought would have been granted at the outset. King v. Shinseki, 26 Vet. App. 433, 441 (2014). The standard is not whether it is reasonable to conclude that the outcome would have been different. Id. at 442.

A claimant may
 must be made on the record and law that existed at the time of the prior adjudication in question. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc).

A manifest change in the outcome of an adjudication means that, absent the alleged CUE, the benefit sought would have been granted at the outset. King v. Shinseki, 26 Vet. App. 433, 441 (2014). The standard is not whether it is reasonable to conclude that the outcome would have been different. Id. at 442.

A claimant may assert that VA failed to adjudicate a reasonably raised claim in the context of a request for revision of a prior decision on the basis of CUE. Richardson v. Nicholson, 20 Vet. App. 64, 71-72 (2006). When presented with a CUE motion asserting failure to adjudicate a reasonably raise claim, VA must make two threshold factual determinations. First, VA must give a full and sympathetic reading to a pro se claimant's prior submissions to determine whether such a claim was reasonably raised. If it is determined that a claim was reasonably raised, VA must then determine whether such a claim is pending or whether it was adjudicated as part of a final decision. If such a reasonably raised claim remains pending, then there is no decision on that claim to revise on the basis of CUE. However, in such a situation, the claim must be adjudicated. If VA determines that the claim was adjudicated, then the appellant may collaterally attack the resulting decision on the basis of CUE. Id.

In this matter, the Veteran contends the December 2007 Rating Decision was clearly and unmistakably erroneous because the RO did not consider the March 2007 diagnosis and positive VA opinion, written by a competent medical professional, and instead denied service connection because of the asserted absence of documentation of "totally incapacitating headaches." The RO stated that because of this absence, the claim could not be "favorably considered," or in other words, granted.  Next, the RO indicated that entitlement was not established as an "undiagnosed illness as the file does not have actual evidence to show condition to have been disabling to a degree of ten percent (10%) or more for a period of six (6) month or more."

As an initial matter, the December 2007 Rating Decision became final, as the Veteran did not file a timely notice of disagreement (NOD) and no new and material evidence was received during the one-year appeal period following the Rating Decision.  See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103.

Further, the Board finds the allegations of CUE made by the Veteran and his representative are adequate to meet the threshold pleading requirements.  See Simmons v. Principi, 17 Vet. App. 104 (2003); Phillips v. Brown, 10 Vet. App. 25 (1997).

On review, the Board finds CUE in the December 2007 Rating Decision that, in pertinent part, denied service connection based on incomplete facts and a misapplication of the law.  

The pertinent laws and regulations at the time of this decision were essentially the same as they are now.  Specifically, 38 C.F.R. § 3.303(a) provided then, as now, that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service and 38 C.F.R. § 3.303(d) provided then, as now, that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(a), (d).  Next, 38 C.F.R. § 3.102, both then and now, provided that when a reasonable doubt arises due to an approximate balance of positive and negative evidence, such doubt shall be resolved in favor of the Veteran. Lastly, in 2007, as now, total incapacitation must be shown for the maximum rating for headaches, but need not be shown for an award of service connection.  See 38 C.F.R. § 4.124, DC 8100.  

Evidence of record at the time of the December 2007 Rating Decision included the Veteran's original June 7, 2006 claim for compensation, service treatment records, VA treatment records, a March 2007 VA examination report and positive nexus opinion from a VA medical doctor.  

The March 2023 and July 2023 Rating Decisions
 reasonable doubt arises due to an approximate balance of positive and negative evidence, such doubt shall be resolved in favor of the Veteran. Lastly, in 2007, as now, total incapacitation must be shown for the maximum rating for headaches, but need not be shown for an award of service connection.  See 38 C.F.R. § 4.124, DC 8100.  

Evidence of record at the time of the December 2007 Rating Decision included the Veteran's original June 7, 2006 claim for compensation, service treatment records, VA treatment records, a March 2007 VA examination report and positive nexus opinion from a VA medical doctor.  

The March 2023 and July 2023 Rating Decisions concede current diagnoses and in-service treatment for headaches.  Specifically, March 2007 and August 2007 VA examinations show a diagnosis of tension headaches.  Further, these Rating Decisions also concede that the Veteran's service treatment record dated July 25, 2003 shows complaints of headaches in service.  A review of the record confirms a current diagnosis of tension headaches dated March 2007.

The Veteran was afforded a VA examination in March 2007.  The examiner, a medical doctor, included a diagnosis of tension headaches.  The examiner indicated the headache symptoms began in during service, with a laceration to the forehead in October 2000 at Camp Johnson, NC, without loss of consciousness, and with infrequent and mild, tension-type, non-prostrating. headaches over the following three years located at the site of the laceration and that his current symptoms were a continuing, but not worsening, presentation of the same symptoms.  Thus, the Veteran's August 2007 VA examiner concluded that it was as likely as not that the Veteran's headache disability had onset during service.  

Moreover, in the "Evidence" section of the December 2007 Rating Decision, the RO listed the August 2007 VA examination and medical opinion, and the VA medical and that the VA Ann Arbor treatment records were available and reviewed.  Nevertheless, the RO denied service connection for headaches.  Indeed, the RO specifically implicated the absence of "totally incapacitating headaches" as a reason for denying service connection for headaches.  The RO stated that because of this absence, the claim could not be "favorably considered," or in other words, granted.   

Based on the above, at the time of the December 2007 Rating Decision, and pursuant to 38 C.F.R. § 3.303(a), the evidence was sufficient to at least place in equipoise the question of entitlement to direct service connection for tension headaches.  In other words, the evidence was in an approximate balance as to whether there was a currently diagnosed headache disability and whether it had onset during service.  And as mentioned above, the RO denied service connection based on the absence of a requirement to show the highest possible evaluation for headaches, which was, and is, not a requirement for a grant of service connection itself. Absent any evidence to the contrary, the RO should have resolved reasonable doubt in favor of the Veteran.  See 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

Lastly, the Board finds that but for this error, the outcome of the June 2006 service connection claim for headaches would have been manifestly different - namely, it would have been granted.  A review of the evidence does not reveal a negative nexus opinion as to headaches.  Furthermore, had the December 2007 Rating Decision properly discussed the August 2007 positive VA medical opinion and assigned probative weight to the VA examiner's findings, which, at that time, was at least in equipoise on the question of whether the currently diagnosed insomnia had onset in service, the proper application of 38 U.S.C. § 5107 and 38 C.F.R. § 3.102, requiring that reasonable doubt be resolved in a claimant's favor, would have mandated that VA award service connection for headaches.  Consequently, the December 2007 RO Rating Decision clearly erred in its denial of service connection for headaches. 38 C.F.R. § 3.105(a).

Based on the above, the claim for CUE in the December 2007 Rating Decision in the denial of service connection for headaches is granted, and the December 2007 Rating Decision should be revised to reflect that the service connection claim for tension headaches is granted.

 

 

Danette Mincey

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Maskatia, Zaheer

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. § 
 of service connection for headaches. 38 C.F.R. § 3.105(a).

Based on the above, the claim for CUE in the December 2007 Rating Decision in the denial of service connection for headaches is granted, and the December 2007 Rating Decision should be revised to reflect that the service connection claim for tension headaches is granted.

 

 

Danette Mincey

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Maskatia, Zaheer

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.