MIGRAINE

S. CHARLES NEILL · 2026 · Case ID: A26039824

MIXED

Summary

The Veteran served from June 2015 to October 2018, including service in the Southwest Asia Theater of Operations during the Persian Gulf War. The Veteran appeals the denial of increased ratings for headaches and the denial of service connection for bilateral shin splints and bilateral hip conditions. The Board granted an initial 10 percent rating for headaches from August 10, 2022, to September 12, 2023, finding the evidence in approximate balance and affording the Veteran the benefit of the doubt. However, the Board denied increased ratings for headaches for subsequent periods, finding the evidence did not support higher evaluations. The claims for bilateral shin splints and bilateral hip conditions were remanded for further development. The Board noted that the Veteran has a service-connected left ankle condition and claimed his shin and hip pain were due to military running/rucking, his ankle condition, or Persian Gulf toxic exposures. The Board found that VA made pre-decisional duty to assist errors by failing to obtain relevant medical treatment records and relying on inadequate VA examinations. The remand instructions require obtaining outstanding VA treatment records, including imaging reports, and scheduling a new VA examination to determine the etiology of the shin and hip conditions. The examiner must opine on the relationship to service, including the combined effect of toxic exposures and whether the conditions constitute a medically unexplained chronic multisymptom illness (MUCMI).

Rationale

Evidence in approximate balance for 10% rating; Benefit of the doubt afforded to Veteran; December 2023 VA exam allows for prostrating headaches once every two months

Special Benefit

NO SPECIAL BENEFIT

Docket No.

231218-401183

Full Decision Text

Citation Nr: A26039824
Decision Date: 04/28/26 Archive Date: 04/28/26

DOCKET NO. 231218-401183
DATE: April 28, 2026

ORDER

1. Entitlement to an initial compensable rating of 10 percent, but not higher, for headaches from August 10, 2022 to September 12, 2023 is granted.

2. Entitlement to an increased rating in excess of 10 percent for headaches from September 13, 2023 to February 21, 2024 is denied.

3. Entitlement to an increased rating in excess of 30 percent for headaches from February 22, 2024 forward is denied.

REMANDED

1. Entitlement to service connection for bilateral shin splints, to include as secondary to a left ankle condition, is remanded.

2. Entitlement to service connection for a bilateral hip condition, to include as secondary to a left ankle condition, is remanded.

FINDINGS OF FACT

1. Prior to September 13, 2023, the Veteran's headache disability manifested with characteristic prostrating attacks averaging one in two months over last several months.

2. Prior to February 22, 2024, the Veteran's headache disability did not manifest with characteristic prostrating attacks occurring on an average once a month over last several months.

3. From February 22, 2024 forward, the Veteran's headache disability did not manifest with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.

CONCLUSIONS OF LAW

1. The criteria for an initial compensable rating of 10 percent for service-connected headaches prior to September 13, 2023 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.124a; DC 8100.

2. The criteria for an increased rating in excess of 10 percent for service-connected headaches from September 13, 2023 to February 21, 2024 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.124a; DC 8100.

3. [The criteria for an increased rating in excess of 30 percent for service-connected headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.124a; DC 8100.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from June 2015 to October 2018.

This matter is before the Board of Veterans' Appeals (Board) on appeal under the modernized review system, also known as the Appeals Modernization Act (AMA), from August 2023 (hips), November 2023 (shins), and December 2023 (headaches) rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO).

In March 2025, the Board denied the appeals. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (CAVC or the Court), resulting in a December 2025 Joint Motion for Remand (JMR). In the JMR, "the parties agree that remand is required because the Board erred by failing to: (1) address whether Appellant is entitled to service connection under the Gulf War provisions of 38 C.F.R. § 3.317; (2) address the applicability of the combat presumption; (3) conduct a Saunders analysis with respect to the bilateral shin and bilateral hip condition; (4) address whether VA satisfied its pre-decisional duty to assist in obtaining private treatment records; and (5) address whether an earlier effective date is warranted for headaches." See December 2025 CAVC Decision.

Increased Ratings

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1.

Where an increase in the level of a disability is at issue, the primary concern is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations in the course of the appeal, the assignment of staged ratings is appropriate. See Hart v. Mansfield, 21 Vet. App. 5058 (2007); Fenderson v. West, 12 Vet. App. 119 (1999).

If there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

The Veteran is seeking increased evaluations for his headaches. By way of background, the Veteran has had a noncompensable (0 percent) rating from August 10, 2022, a 10 percent disability rating from September 13, 2023, and a 30 percent from February 22, 2024, forward under 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100.

DC 8100 assigns a noncompensable rating for less frequent attacks. A 10 percent rating is assigned for characteristic prostrating attacks averaging one in two months over last several months. A 30 percent evaluation is assigned for characteristic prostrating attacks occur an average of once a month over the last several months. A 50 percent evaluation is warranted for very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100. The rating criteria of DC 8100 are considered successive, meaning that a claimant cannot fulfill the criteria of the higher rating without fulfilling those of the next lower rating. See Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018).

"Prostrating" means "lacking in vitality or will: powerless to rise: laid low." See Johnson v. Wilke, 30 Vet. App. 245, 252 (2018) (citing Webster's Third New International Dictionary of the English Language Unabridged (Webster's) 376 (1966). The phrase "characteristic prostrating attacks" means "the headaches must render the veteran entirely powerless." "Completely" is defined as "to complete degree: entirely." Id. at 253 (citing Webster's at 465).

"Severe economic inadaptability" is not defined in VA law. See Pierce v. Principi, 18 Vet. App. 440, 446 (2004). In addition, the Court has held that nothing in Code 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Id. In this regard, it was explained by the Court that if "economic inadaptability" were read to import unemployability, the appellant, should he or she meet the economic-inadaptability criterion, would then be eligible for a TDIU rather than just a 50 percent rating. Id. (citing 38 C.F.R. § 4.16). The Court discussed the notion that consideration must also be given as to whether the disability was capable of producing severe economic inadaptability, regardless of whether the condition was actually causing such inadaptability. See Pierce, 18 Vet. App. at 446. In this regard, VA conceded that the words "productive of" could be read to mean either "producing" or "capable of producing." Id. at 446-47.

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
. See Pierce, 18 Vet. App. at 446. In this regard, VA conceded that the words "productive of" could be read to mean either "producing" or "capable of producing." Id. at 446-47.

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 claim 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 v. McDonough, 21 F.4th 776, 781 (Fed. Cir. 2021) (en banc).

1. An initial compensable rating of 10 percent, but not higher, for headaches from August 10, 2022 to September 12, 2023 is granted.

From August 10, 2022 to September 13, 2023, the Veteran's medical records are silent as to headache symptomatology. In January 2023, the Veteran stated he had headaches during the day and his vision flickered as if his head was quickly going up and down. See January 2023 VA Form 21-526EZ. In a July 2023 VA exam, the Veteran was noted to have a diagnosis of migraines. See July 2023 C&P Exam. The Veteran stated he had two or three headaches monthly with pain on both sides but had not sought treatment or medication for the headaches. Id. The Veteran described the headaches as pulsating or throbbing pain on both sides of the head, and to include nausea and sensitivity to light and sound. Id. The examiner determined the Veteran's headaches were not prostrating attacks and did not impact his ability to work. Id.

The Board notes that the Veteran underwent a VA exam in December 2023 in which the examiner determined the Veteran's headache condition had been stable since 2017. See December 2023 C&P Exam. As CAVC pointed out in its December 2025 Joint Motion for Remand, this determination by the examiner can be interpreted to mean the Veteran's headaches were prostrating once every two months (but not completely prostrating) since onset.

Upon review of the record, the Board finds the evidence to be in at least in approximate balance as to whether the Veteran's symptoms more nearly approximate the criteria for a 10 percent disability rating. The criteria for a 10 percent disability rating requires characteristic prostrating attacks averaging one in two months over last several months. While the Veteran's medical records do not document any headache symptomatology and the July 2023 VA examiner found the Veteran did not have prostrating headaches, the December 2023 VA exam allows for the possibility the Veteran's headaches were prostrating once every two months since the effective date of service connection.

The criteria for a 30 percent disability rating requires characteristic prostrating attacks occurring on an average once a month over the last several months. The evidence of record does not support a finding that the Veteran's symptoms more nearly approximated a 30 percent disability rating.

Therefore, affording the Veteran the benefit of the doubt, the Board finds the criteria for a 10 percent evaluation (but not higher) was more nearly approximated by the Veteran's symptoms for the period prior to September 13, 2023.

2. An increased rating in excess of 10 percent for headaches from September 13, 2023 to February 21, 2024 is denied.

From September 13, 2023 to February 21, 2024, the Veteran's medical records do not document symptoms of or treatment for a headache condition. In a December 2023 VA exam, the examiner noted the Veteran's assertion of pulsating or throbbing pain on both sides of his head, nausea, and sensitivity to light and sound. See December 2023 C&P Exam. The Veteran's headaches were noted to last less than a day and were prostrating once every two months but not completely prostrating. Id. The examiner assessed the Veteran's headache condition to not impact his ability to work. Id.

The Board finds that the Veteran's headaches manifest in symptoms that more closely approximate the criteria for a 10 percent disability rating during the appellate period. The Veteran averaged one incomplete prostrating headache in two months. The
a headache condition. In a December 2023 VA exam, the examiner noted the Veteran's assertion of pulsating or throbbing pain on both sides of his head, nausea, and sensitivity to light and sound. See December 2023 C&P Exam. The Veteran's headaches were noted to last less than a day and were prostrating once every two months but not completely prostrating. Id. The examiner assessed the Veteran's headache condition to not impact his ability to work. Id.

The Board finds that the Veteran's headaches manifest in symptoms that more closely approximate the criteria for a 10 percent disability rating during the appellate period. The Veteran averaged one incomplete prostrating headache in two months. The criteria for a 30 percent disability rating requires characteristic prostrating attacks occurring on an average once a month over the last several months. The evidence of record does not support a finding that the Veteran's symptoms more nearly approximated a 30 percent disability rating. Therefore, an increased rating in excess of 10 percent from September 13, 2023 to February 22, 2024 must be denied.

3. An increased rating in excess of 30 percent for headaches from February 22, 2024 forward is denied.

There is no medical evidence of record involving the Veteran's headache from February 22, 2024 forward within the AMA evidentiary window for this claim. As such, there is no evidence of record to support a finding that the Veteran's symptoms more nearly approximate a 50 percent disability rating requiring very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability. Therefore, an increased rating in excess of 30 percent from February 22, 2024 forward must be denied.

REASONS FOR REMAND

1. Service connection for bilateral shin splints, to include as secondary to a left ankle condition disorders (and to specifically include MUCMIs from Persian Gulf War service in the Southwest Asia theater of operations), is remanded.

2. Service connection for a bilateral hip condition, to include as secondary to a left ankle condition disorders (and to specifically include MUCMIs from Persian Gulf War service in the Southwest Asia theater of operations), is remanded.

Under the AMA, if a duty to assist error occurred prior to the agency of original jurisdiction (AOJ) decision on appeal, the appeal must be remanded to the AOJ for correction of the error. 38 C.F.R. § 20.802(a). In this case, the Board finds that pre-decisional duty to assist errors were made because the AOJ did not request relevant medical treatment records and relied on inadequate VA examinations in denying the claims.

The Veteran claims his shins and hips hurt due to running and rucking while in the military, his service-connected ankle condition, and/or his exposure to toxins during service in the Persian Gulf. See July 2023 and September 2023 VA Form 21-526EZ. While in the military, the Veteran reported pain in his arms, legs, or joints which bothered him a lot after a deployment to Kuwait. See August 2018 STR. In the report of medical history during the separation exam, the Veteran marked that he had swollen or painful joints. See November 2018 STR. Post-military, the Veteran's medical records are mostly silent regarding symptoms, treatment, or diagnoses for shin and hip conditions other than one note of hip pain in December 2020. See January 2021 CAPRI. The December 2020 telehealth (video) appointment notes contain the following statement, "All labs and x-rays reviewed with patient during visit." Id. This note implies there are outstanding imaging reports or results not associated with the claims file. As such, remand is necessary to develop the record.

A careful review of the Veteran's DD Form 214, Certificate of Discharge from Active Duty, reveals that he had qualifying service in the Southwest Asia Theater of Operations during the Persian Gulf War after August 2, 1990. Therefore, he is considered a Persian Gulf veteran and is also presumed to have been exposed to burn pits and other toxins, to include fine particulate matter, during that time. See 38 C.F.R. §§ 3.2, 3.317, 3.320(a)(5); see also PACT Act, Pub. L. 117-168. The record includes a VA Memorandum designating the Veteran as a participant in a toxic exposure risk activity (TERA). See July 2023 VA Memo.

The Veteran underwent multiple VA examinations. In an October 2018 VA exam, the Veteran was noted to not have (nor ever have) shin splints. See October 2018 C&P Exam
is considered a Persian Gulf veteran and is also presumed to have been exposed to burn pits and other toxins, to include fine particulate matter, during that time. See 38 C.F.R. §§ 3.2, 3.317, 3.320(a)(5); see also PACT Act, Pub. L. 117-168. The record includes a VA Memorandum designating the Veteran as a participant in a toxic exposure risk activity (TERA). See July 2023 VA Memo.

The Veteran underwent multiple VA examinations. In an October 2018 VA exam, the Veteran was noted to not have (nor ever have) shin splints. See October 2018 C&P Exam. In 2023, VA examiners again stated the Veteran did not have a diagnosis regarding shin or hip conditions. See June 2023 and July 2023 C&P Exams. None of the examiners noted or discussed the notations of joint pain in the Veteran's service treatment records. Additionally, the July 2023 examination did not address any of the Veteran's stated functional impairment due to his shins and hips. Further, the examiners did not opine whether the Veteran's conditions were related to Southwest Asia toxic exposures. In order to be considered an adequate TERA opinion, the examiner must consider the total potential toxic exposure through all applicable military deployments; and the synergistic, combined effect of all toxic exposure risk activities.

On remand, the examiner must address whether or not the Veteran's claimed bilateral shin and bilateral hip pain are related to the combined effect of all his toxic exposure. Consideration must be given to whether the Veteran has any undiagnosed illnesses, MUCMIs, or other diseases presumptively associated with his toxic exposure. See 38 C.F.R. § 3.317; see also PACT Act, Pub. L. 117-168.

Additionally, although the Veteran was provided a Gulf War general medical examination in July 2023, the Veteran's musculoskeletal system was not adequately addressed. Signs or symptoms that may be a manifestation of an undiagnosed illness or MUCMI include muscle pain and joint pain. 38 C.F.R. § 3.317(b). On remand, an opinion should be obtained that considers whether the Veteran's shin and hip conditions constitute a MUCMI.

The matters are REMANDED for the following action:

1. First, obtain any outstanding and ongoing VA treatment records relevant to the claim on appeal, particularly imaging results/reports (see December 28, 2020 VA Video Connect Note referencing "All labs and x-rays reviewed with patient during visit" in the January 12, 2021 CAPRI).

A copy of any requests and all replies must be included in the claims file. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file.

2. Next, schedule the Veteran for a VA examination from an appropriate examiner to determine the etiology of the Veteran's shin and hip conditions. The record must be made available to the examiner for review, (including a copy of this Remand) and the examiner should indicate that the record was reviewed in connection with the examination.

The examiner should provide an opinion as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's bilateral shin and bilateral hip conditions (to include pain and any resulting functional loss) were caused by, incurred in, or is otherwise related to his active service.

This determination must be based on the Veteran's specific case and cannot be based on the etiology of the disease or disability population as a whole.

If both the etiology and pathophysiology are partially or fully understood, the examiner should opine as to the following: Are the Veteran's shin and hip conditions related to his Gulf War toxic exposure? The examiner must consider the total potential toxic exposure through all applicable military deployments and the synergistic, combined effect of all toxic exposure risk activities.

The examiner is informed that a positive opinion indicating a nexus to service does not require certainty. Rather, if the weight of the evidence is in approximate balance for and against a nexus to service, the examiner should make a determination favorable to the Veteran.

A detailed rationale supporting the examiner's opinion should be provided. In forming the opinion, the examiner must consider all lay statements of record and the medical research submitted by the Veteran. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may
potential toxic exposure through all applicable military deployments and the synergistic, combined effect of all toxic exposure risk activities.

If the examiner believes that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts), by a deficiency in the record (i.e., additional facts are required), or the examiner does not have the needed knowledge or training.

S. CHARLES NEILL

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board B. Dyer

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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