Case A26040637

Summary

The Veteran, who served from March 2010 to June 2010, appeals a higher-level review decision concerning the effective date for a 50 percent rating for migraine headaches. The Board reviewed the case based on the evidence of record at the time of the April 21, 2025 agency of original jurisdiction decision. The primary issue was establishing the correct effective date for the 50 percent rating for migraine headaches, which the Board determined to be February 28, 2023. The Board considered the Veteran's continuous pursuit of the claim through various review options, including a December 30, 2024 VA Form 21-526EZ, which was interpreted as a supplemental claim. This interpretation was based on the claim being filed within one year of a prior rating decision, the Veteran's assertion of symptom onset in 2013, and the submission of new and relevant private medical evidence from C.T., MD. The Board found that the Veteran's migraine headaches, as of February 28, 2023, met the criteria for a 50 percent rating due to very frequent completely prostrating and prolonged attacks causing severe economic inadaptability. This finding was supported by the private medical evaluation, despite a conflicting VA examination. The Board granted the earlier effective date of February 28, 2023, for the 50 percent rating.

Rationale

Migraine headaches rated under Diagnostic Code 8100.; 50 percent rating warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.; Board found Veteran's symptoms met criteria as of February 28, 2023, based on private medical evaluation.

Full Decision Text

Citation Nr: A26040637
Decision Date: 04/30/26	Archive Date: 04/30/26

DOCKET NO. 250605-555707
DATE: April 30, 2026

ORDER

An effective date of February 28, 2023 for the award of a 50 percent rating for migraine headaches is granted.

FINDINGS OF FACT

1. The Veteran's claim for a higher rating for his service-connected migraine headaches was continuously pursued since February 28, 2023. 

2. From February 28, 2023 the medical evidence shows the Veteran's migraine headaches were characterized by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.  

CONCLUSION OF LAW

The criteria for an effective date of February 28, 2023 for the award of a 50 percent rating for migraine headaches have been met. 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.400, 3.2500(h), 4.71a, Diagnostic Code 8100.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran served on active duty from March 2010 to June 2010.

This matter is before the Board of Veterans' Appeals (Board) following his appeal of an April 21, 2025 higher-level review rating decision.

In the June 2025 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the April 2, 2025 agency of original jurisdiction (AOJ) decision, which was subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the April 2, 2025 decision, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801.

An effective date of February 28, 2023 for the award of a 50 percent rating for migraine headaches is granted.

Generally, the effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400. Unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found, but will not be earlier than the date of receipt of the claimant's application. 38 U.S.C. § 5110(a). The effective date of an evaluation and award of compensation for an increased rating claim is the later of the date of receipt of the claim or the date entitlement arose. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o)(1). 

For claims or appeals filed on or after March 24, 2015, a claim for benefits must be submitted on a standardized form. Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660, 57,686 (Sept. 25, 2014) (eff. Mar. 24, 2015). Under the AMA, an initial claim is a new claim requesting service connection for a disability or grant of a new benefit on a form prescribed by the Secretary. 38 C.F.R. §§ 3.1(p)(1), 3.160(b). A supplemental claim is any complete claim for a VA benefit on an application form prescribed by the Secretary where an initial or supplemental claim for the same or similar benefit on the same or similar basis was previously decided.  38 C.F.R. §§ 3.1(p)(2), 3.2501.

Additionally, under the AMA, the effective date will be fixed in accordance with the date of receipt of the initial claim or date entitlement arose, whichever is later, if a claimant continuously pursues an issue by timely filing in succession any of the available review options within one year of the issuance of the decision. 38 C.F.R. § 3.2500(h). One of the available review options is a supplemental claim. See 38 C.F.R. § 3.2500(c).

There is currently no specific prescribed form in the VA regulation for a supplemental claim and, thus, the VA Form 21-526EZ can constitute a supplemental claim when intended to pursue a claim that has been denied before.  Chisholm v. Collins, 38 Vet. App. 140 (2025) (holding that while a supplemental claim needs to be filed on a form prescribed by the Secretary, it does not
 an issue by timely filing in succession any of the available review options within one year of the issuance of the decision. 38 C.F.R. § 3.2500(h). One of the available review options is a supplemental claim. See 38 C.F.R. § 3.2500(c).

There is currently no specific prescribed form in the VA regulation for a supplemental claim and, thus, the VA Form 21-526EZ can constitute a supplemental claim when intended to pursue a claim that has been denied before.  Chisholm v. Collins, 38 Vet. App. 140 (2025) (holding that while a supplemental claim needs to be filed on a form prescribed by the Secretary, it does not need to be filed on a specific supplemental claim form. VA's regulations do not limit supplemental claims to only one prescribed form).

With regard to the date of entitlement, the term date entitlement arose is the date when the claimant met the requirements for the benefits sought, on a facts found basis. 38 U.S.C. § 5110(a); McGrath v. Gober, 14 Vet. App. 28, 35 (2000). These facts found include the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation. See generally 38 C.F.R. § 3.400.  For instance, if a claimant filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested. Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008).

After a careful review of the evidence, the Board finds that the appropriate effective date for the award of a 50 percent rating for migraine headaches is February 28, 2023. 

In this case, the AOJ granted service connection for migraine headaches in a May 2024 rating decision and rated the disability as noncompensable effective February 28, 2023. The Veteran then submitted a May 2024 VA Form 20-0996, Request for Higher-Level Review, which was denied in a May 2024 higher-level review rating decision.

The Veteran then submitted a December 30, 2024 VA Form 21-526EZ, Fully Developed Claim, for migraine headaches, and the Veteran continuously pursued that claim through the April 21, 2025 higher-level review decision on appeal. In the April 21, 2025 rating decision, the AOJ granted a higher rating of 50 percent for migraine headaches effective December 9, 2024. In so doing, the AOJ noted that the chain of continuous pursuit was broken with the December 2024 filing of a VA Form 21-526EZ, as opposed to a VA Form 20-0995, Decision Review Request: Supplemental Claim along with new and relevant evidence. 

The Board finds that the December 30, 2024 claim may properly be interpreted as a supplemental claim. First, the claim was filed within one year of the May 2024 rating decision denying a compensable rating for migraine headaches. Second, in the December 30, 2024 claim form, the Veteran asserted that his migraine headaches began in 2013. The Veteran's statement that his symptoms started in 2013 is interpreted as an assertion that he has had the symptoms he had at the time of the December 2024 claim since 2013. Third, along with the December 30, 2024 claim, the Veteran submitted two pieces of medical evidence from private physician C.T., MD. The Board finds the December 2024 medical evidence to be new, because it was not previously of record. The Board also finds this evidence to be relevant, because it discusses the symptoms and severity of the Veteran's migraine headaches, as further discussed below. Taken together, the Board finds this filing is best interpreted as a request for review of a prior decision on the same or similar benefit on the same or similar basis, as opposed to a claim for increase based on a change or worsening in condition or circumstance since the last decision issued by VA for the benefit. See 38 C.F.R. § 3.1(p).

Therefore, the Board finds that the Veteran's claim for an initial higher rating for his service-connected migraine headaches has been continuously pursued, and the proper date of claim is February 28, 2023.

Having established the date of claim, the Board turns to the medical evidence of record to determine whether a higher rating for migraine headaches is warranted for the period on review beginning February 28, 2023.

The Veteran's migraine headaches are rated pursuant to Diagnostic Code 8100. 38 C.F.R. § 4.124a.

Under Diagnostic Code 8100,
 a change or worsening in condition or circumstance since the last decision issued by VA for the benefit. See 38 C.F.R. § 3.1(p).

Therefore, the Board finds that the Veteran's claim for an initial higher rating for his service-connected migraine headaches has been continuously pursued, and the proper date of claim is February 28, 2023.

Having established the date of claim, the Board turns to the medical evidence of record to determine whether a higher rating for migraine headaches is warranted for the period on review beginning February 28, 2023.

The Veteran's migraine headaches are rated pursuant to Diagnostic Code 8100. 38 C.F.R. § 4.124a.

Under Diagnostic Code 8100, a noncompensable rating is warranted for characteristic prostrating attacks averaging less than once in two months. A 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in two 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. A 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a.

Neither the regulation nor the United States Court of Appeals for Veterans Claims (Court) has defined "prostrating." However, "prostration" is defined as "extreme exhaustion or powerlessness," Dorland's Illustrated Medical Dictionary 1554 (31st ed. 2007), or as "physically or emotionally exhausted," Webster II New College Dictionary 889 (3rd ed. 2001).

Additionally, the term "productive of severe economic inadaptability" has not been clearly defined by VA regulations. The Court has noted that "productive of" can either have the meaning of "producing" or "capable of producing." See Pierce v. Principi, 18 Vet. App. 440, 445 (2004). Thus, migraines need not actually "produce" severe economic inadaptability to warrant the 50 percent rating. Id. at 445-46. Further, "economic inadaptability" does not mean unemployability, as such would undermine the purpose of regulations pertaining to a TDIU. Id. at 446; see also 38 C.F.R. § 4.16. However, that said, migraines must be, at a minimum, capable of producing "severe" economic inadaptability to warrant a 50 percent rating.

In order to warrant a higher rating, the Veteran's headache disability would have to more closely approximate symptoms causing very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a. The Board finds that the evidence of record shows such severity from February 28, 2023.

A February 2024 VA examination found the Veteran had neither characteristic prostrating attacks nor completely prostrating and prolonged attacks of migraine headaches. 

A December 2024 private medical evaluation completed by C.T., MD notes that the Veteran's chronic migraines and headaches have persisted for several years since 2013 and progressively worsened, significantly impacting his daily activities and overall quality of life. C.T., MD notes that these symptoms were managed with over-the-counter medications, but as their frequency and intensity increased, the Veteran required more medical attention. C.T., MD notes that the headaches frequently disrupt the Veteran's concentration and task performance, contributing to heightened stress and fatigue. C.T. MD noted that the headaches initially presented as dull and persistent, but have become more frequent and intense, often escalating into full-blown migraines that occur more than three times a month and last up to 96 hours depending on the Veteran's medication use. The Veteran asserted that at work, the frequency and severity of headaches hinder focus and task completion, often resulting in unscheduled breaks that disrupt productivity and lead to absenteeism. He asserted that he frequently needs to call off or leave early due to these attacks.  

C.T., MD also provided a December 2024 migraine headaches disability benefit questionnaire, and noted that the Veteran's migraine headaches were characterized as completely prostrating and prolonged attacks occurring greater than once per month. He noted that the Veteran sometimes has to miss work and calls off two to three times a month, needs to take breaks and time off, cannot focus at some points, and has a hard time completing tasks. 

In a February 2025 statement in support of his claim, the Veteran asserted that he is dealing with the same symptoms now that he was dealing with when he talked to the VA examiner on February 9, 2024. The Veteran asserted that the VA examiner did not do an adequate job of evaluating the impairment his condition has caused
., MD also provided a December 2024 migraine headaches disability benefit questionnaire, and noted that the Veteran's migraine headaches were characterized as completely prostrating and prolonged attacks occurring greater than once per month. He noted that the Veteran sometimes has to miss work and calls off two to three times a month, needs to take breaks and time off, cannot focus at some points, and has a hard time completing tasks. 

In a February 2025 statement in support of his claim, the Veteran asserted that he is dealing with the same symptoms now that he was dealing with when he talked to the VA examiner on February 9, 2024. The Veteran asserted that the VA examiner did not do an adequate job of evaluating the impairment his condition has caused, the VA examination was very hurried, and there were many areas that he felt were never touched upon. Specifically, the Veteran asserted that he suffers debilitating attacks more than once a month that render him completely unable to function, making it impossible to carry out any regular daily activities. He asserted that these attacks can last for more than an hour, where he must lie down in a dark room away from everything, until the pain subsides. He asserted that his headaches have affected his work, and when having a migraine he is unable to concentrate or focus on any task due to the throbbing/pulsating pain, and he has had to call out due to the pain. 

A December 2025 VA examination found that the Veteran had completely prostrating and prolonged attacks of migraines once in two months. The Veteran asserted that he had lost two to four weeks of work time in the last 12 months. He noted that when he experiences prostrating attacks, he must stay at home and not do anything at all, and just lie in bed and keep the curtains closed with no sound or light at all. 

Resolving reasonable doubt in favor of the Veteran, the Board finds that since February 28, 2023, the Veteran's migraine headaches have been characterized by symptoms causing very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 

Therefore, the claim for an earlier effective date for the award of a 50 percent rating for migraine headaches is granted.

 

 

L. STEPANICK

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. Sargent

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.