Case A26040752

Summary

The veteran, who served from April 1995 to April 1999, appeals the denial of an increased rating for migraine headaches and the grant of Special Monthly Compensation (SMC) at the housebound rate. The Board denied the increased rating for migraines, noting that the veteran was already receiving the maximum 50% rating under Diagnostic Code 8100 and that the evidence did not support a higher rating. However, the Board granted SMC at the housebound rate, finding that the veteran's migraines alone prevented substantially gainful employment since October 28, 2011, meeting the first criterion. The second criterion was met by service-connected disabilities in the left foot and TMJ disorder, rated at 60% combined, which were separate from the migraines. The Board also granted an effective date of October 28, 2011, for the TDIU award, based on the private rehabilitation counselor's opinion that migraines prevented substantially gainful employment from that date, outweighing a less-detailed VA opinion. The effective date for Dependents' Educational Assistance (DEA) benefits was also set to October 28, 2011, as the TDIU award established the necessary permanent total disability.

Full Decision Text

Citation Nr: A26040752
Decision Date: 04/30/26	Archive Date: 04/30/26

DOCKET NO. 260116-624953
DATE: April 30, 2026

ORDER

Entitlement to an increased rating in excess of 50 percent for migraine headaches is denied.

Entitlement to special monthly compensation (SMC) at the housebound rate from January 11, 2021 is granted.

Entitlement to an effective date of October 28, 2011, but no earlier, for the grant of a total disability rating based on individual unemployability (TDIU) is granted.

Entitlement to an effective date of October 28, 2011, but no earlier, for the grant of eligibility for Dependents' Educational Assistance (DEA) benefits is granted.

FINDINGS OF FACT

1. The Veteran is in receipt of the maximum rating for migraine headaches.

2. The issue of entitlement to a TDIU was raised during an ongoing claim for an increased rating for the Veteran's left foot scars, pending since April 5, 1999.

3. The Veteran's migraine headaches alone have prevented her from following and securing substantially gainful occupation since October 28, 2011, the day after she stopped working full-time, with difficulty sustaining adequate pace, productivity, and reliability due to pain and visual changes.

4. From January 11, 2021, the Veteran has service-connected disabilities ratable at least at 60 percent, separate and distinct from her migraine headaches.

5. The Veteran never filed a claim for eligibility for DEA benefits.

CONCLUSIONS OF LAW

1. The criteria for entitlement to an increased rating in excess of 50 percent for migraine headaches have not been met. 38 U.S.C. §§ 1155, 5107 (2024); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a, Diagnostic Code (Code) 8100 (2025).

2. The criteria for entitlement to SMC at the housebound rate from January 11, 2021 have been met. 38 U.S.C. §§ 1114(s), 5107 (2024); 38 C.F.R. §§ 3.102, 3.350(i) (2025); Bradley v. Peake, 22 Vet. App. 280 (2008).

3. The criteria for entitlement to an effective date of October 28, 2011, but no earlier, for the grant of a TDIU have been met. 38 U.S.C. §§ 5101, 5110 (2018, 2024); 38 C.F.R. §§ 3.1, 3.155 (2014, 2018, 2025), 3.400 (2025).

4. The criteria for entitlement to an effective date of xxx, but no earlier, for the grant of eligibility for DEA benefits have been met. 38 U.S.C. §§ 5101, 5110 (2018, 2024); 38 C.F.R. §§ 3.1, 3.155 (2014, 2018, 2025), 3.400 (2025).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from April 1995 to April 1999.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2025 rating decision by the Department of Veterans Affairs (VA).

In September 2024, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a July 2024 decision. In January 2025, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior July 2024 decision.

In the January 2026 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 July 2024 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 decision, which was subsequently subject to higher-level review, the Board did not consider it in its decision. 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 
 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 July 2024 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 decision, which was subsequently subject to higher-level review, the Board did not consider it in its decision. 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, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a supplemental claim are included with this decision. 

The Board must consider entitlement to SMC when fairly raised by the record. See Akles v. Derwinski, 1 Vet. App. 118 (1991). The issue of entitlement to SMC at the housebound rate has been raised by the record in the context of the increased rating issue related to migraine headaches. The Board has accordingly added entitlement to SMC as an issue on appeal.

1. Entitlement to an increased rating in excess of 50 percent for migraine headaches.

Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4.

When a question arises as to which of two ratings applies under a particular Code, the higher rating is assigned if the disability more nearly approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. If the evidence is not in approximate balance or nearly equal, the claim is to be denied. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001).

In any claim for an increased rating, "staged" ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999).

The Veteran's migraine headaches are rated pursuant to Code 8100, for migraine. Code 8100 provides a maximum 50 percent rating. 38 C.F.R. § 4.124a.

The Veteran is in receipt of a 50 percent rating for her migraine headaches. Thus, a rating in excess of 50 percent cannot be assigned, and increased rating is denied.

2. Entitlement to SMC at the housebound rate from January 11, 2021.

SMC at the housebound rate is payable if a veteran has a single service-connected disability rated at 100 percent and has an additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). A TDIU rating based on a single disability is permitted to satisfy the statutory requirement of a 100 percent rating. Bradley v. Peake, 22 Vet. App. 280, 293 (2008).

As discussed below, the Veteran's migraine headaches have prevented her from securing and following substantially gainful occupation throughout the review period. As a result, the first element for entitlement to SMC at the housebound rate has been met.

From January 11, 2021, the Veteran has service-connected disabilities independently ratable at least at 60 percent, separate and distinct from her migraine headaches: painful scars of the left foot and great toe, rated at 30 percent; left foot plantar fasciitis, rated at 20 percent; left great toe bunionectomy, rated at 10 percent; and temporomandibular joint (TMJ) disorder, rated at 10 percent. As such, the
293 (2008).

As discussed below, the Veteran's migraine headaches have prevented her from securing and following substantially gainful occupation throughout the review period. As a result, the first element for entitlement to SMC at the housebound rate has been met.

From January 11, 2021, the Veteran has service-connected disabilities independently ratable at least at 60 percent, separate and distinct from her migraine headaches: painful scars of the left foot and great toe, rated at 30 percent; left foot plantar fasciitis, rated at 20 percent; left great toe bunionectomy, rated at 10 percent; and temporomandibular joint (TMJ) disorder, rated at 10 percent. As such, the second element for entitlement to SMC at the housebound rate has been met.

Because the Veteran's migraine headaches alone are the basis of the award of a TDIU and she has separate and distinct disabilities rated at least at 60 percent from January 11, 2021, entitlement to SMC at the housebound rate is warranted.

Effective Date

Except as otherwise provided, the effective date of an evaluation and award of compensation based on an initial claim or supplemental claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. An initial claim includes a new claim requesting service connection and a claim for increase in a disability evaluation rating. See 38 C.F.R. § 3.1(p) (2019). The effective date for the assignment of an increased rating may be up to one year prior to receipt of a formal claim for increase when it is factually ascertainable that an increase in disability had occurred based on all evidence of record. 38 C.F.R. § 3.400(o)(2).

Prior to March 24, 2015, a claim is a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p) (2014). The essential elements for any claim, whether formal or informal, are: (1) intent to apply for benefits; (2) identification of the benefits sought; and (3) communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009).

From March 24, 2015, a claim must be filed on a designated VA form. See 38 C.F.R. § 3.1(p) (2018); 79 Fed. Reg. 57,696 (Sept. 25, 2014).

For initial decisions issued on or after February 19, 2019, a claimant may continuously pursue a claim or an issue by timely and properly filing one of the following administrative review options after any decision by the agency of original jurisdiction, Board, or by the U.S. Court of Appeals for Veterans Claims (Court), provided that any appeal to the Court is timely filed as determined by the Court: (1) following the notice of a decision on an initial claim or a supplemental claim, the claimant may file a supplemental claim, request a higher-level review, or appeal to the Board; (2) following notice of a decision on a higher-level review, the claimant may file a supplemental claim or appeal to the Board; (3) following notice of a decision on an appeal to the Board, the claimant may file a supplemental claim or file a notice of appeal to the Court; and (4) following a decision on an appeal to the Court, the claimant may file a supplemental claim. 38 C.F.R. § 3.2500(c).

Except as otherwise provided, including 38 C.F.R. § 3.400, 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 listed in 38 C.F.R. § 3.2500(c) within one year of the issuance of the decision, provided that any appeal to the Court must be accepted as timely by that court. 38 C.F.R. § 3.2500(h). Indeed, a final claim is one where the period to file a review option expired. 38 C.F.R. § 3.160(d)(2).

1. Entitlement to an effective date prior to August 14, 2019 for the grant of entitlement to a TDIU.

The Veteran asserts that she is entitled to an effective date from at least May 2012 because she has had a claim pending since 1999 and she has been unable to perform the physical and
.F.R. § 3.2500(c) within one year of the issuance of the decision, provided that any appeal to the Court must be accepted as timely by that court. 38 C.F.R. § 3.2500(h). Indeed, a final claim is one where the period to file a review option expired. 38 C.F.R. § 3.160(d)(2).

1. Entitlement to an effective date prior to August 14, 2019 for the grant of entitlement to a TDIU.

The Veteran asserts that she is entitled to an effective date from at least May 2012 because she has had a claim pending since 1999 and she has been unable to perform the physical and mental acts required by employment since at least May 2012. See January 2026 Notice of Disagreement.

A TDIU is not a separate claim, but rather one way to get the appropriate rating for a disability. Because a TDIU can come up basically any time VA is rating a disability, VA may need to address it as part of separate claim streams when it is rating different disabilities. A TDIU is not its own separate benefit that VA can grant or deny unmoored from the underlying claim for an increased rating. Instead, a TDIU is part of that underlying claim-as an option for a potential rating-and the eventual effective date depends on the specific claim VA is then adjudicating. Phillips v. McDonough, 37 Vet. App. 394 (2024).

VA is required to treat an application for a TDIU as a request for a higher rating for a veteran's disability or disabilities. De Hart v. McDonough, 37 Vet. App. 371, 380 (2024).

Date of Claim

In November 2021, VA received a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, wherein the Veteran asserted that she was unable to work due to her service-connected migraines, left foot plantar fasciitis, left great toe bunionectomy, left great toe scars, and TMJ disorder. As such, the Board must determine whether a claim for an increased rating for those disabilities remained pending prior to receipt of the VA Form 21-8940.

In a rating decision issued in December 2020, the AOJ granted service connection for left foot scars, effective April 5, 1999. In November 2021, the Veteran sought review of the rating assigned in a supplemental claim. See VA Form 20-0995. The VA Form 21-8940 was received on the same day. As a result, a claim for an increased rating remained pending since April 5, 1999.

The Board notes that the Veteran has no disabilities that are service connected prior to April 5, 1999. Thus, review of whether there were any other earlier, additional pending increased rating claims is unnecessary. The date of claim for this matter is April 5, 1999.

Date of Entitlement

A TDIU rating may be assigned, where the schedular rating is less than total, when the veteran is unable to secure or follow substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. It is the established policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b).

The record is consistent that the Veteran last worked on October 27, 2011. See, e.g., July 2016 Social Security Administration (SSA) records. She initially asserted that she became too disabled to work after she stopped working, on August 1, 2012, see August 2020 VA Form 21-8940, but then later reported she became too disabled to work on October 27, 2011. See, e.g., November 2021 VA Form 21-8940. She previously had worked from 2008 to 2011 as a director of programs and fund development and has two years of college education. Id.

The Veteran asserted that she was fired due to missing too much work because, at least in part, of her migraines. She submitted sick leave usage charts from her employer showing that she used 80 hours of sick leave in 2011, prior to being terminated. Although she was fired, her employer wrote a letter commending her work competency. See correspondence received in August 2020. The Veteran stated that her work's leniency and patience for her missing work "ran out," and that, after she was fired, she attempted to apply for jobs but never went back to work. Her
 previously had worked from 2008 to 2011 as a director of programs and fund development and has two years of college education. Id.

The Veteran asserted that she was fired due to missing too much work because, at least in part, of her migraines. She submitted sick leave usage charts from her employer showing that she used 80 hours of sick leave in 2011, prior to being terminated. Although she was fired, her employer wrote a letter commending her work competency. See correspondence received in August 2020. The Veteran stated that her work's leniency and patience for her missing work "ran out," and that, after she was fired, she attempted to apply for jobs but never went back to work. Her migraines were beginning to take over her life. See November 2021 correspondence. In June 2013, the Veteran's husband also noted that the Veteran could not drive most days or work regular work hours due to her migraine pain. See statement.

In January 2024, a private certified rehabilitation counselor opined that the Veteran's migraine headaches prevented her from securing and following substantially gainful employment, regardless of skill or exertional level from at least May 2012. The counselor discussed that employees are only allowed to be off-task 10 percent of an eight-hour workday or less and are expected to produce a certain, minimal amount of work while on the job, but the Veteran's constant and daily headaches, accompanied by vision changes and pain that worsened with activity, rendered her unable to remain on task and productive as required by employees. Her symptoms, including fatigue due to medication side effects, would at least as likely as not slow the pace at which she was able to complete work tasks throughout the day, interfere with her ability to consistently and reliably produce a certain minimum amount of work each day, and preclude her from meeting expectations.

The private counselor relied on a review of the file and provided a full and detailed rationale that included discussion of the lay statements of reported history and medical evidence. As a result, the Board assigns the opinion significant probative weight.

The Veteran's migraine symptoms of pain and visual changes are corroborated by a September 2013 VA headaches examination. The Veteran's symptoms appeared to remain the same, if not worse, in a November 2020 VA headaches examination.

The probative evidence of record weighs in favor of finding that the Veteran's migraines alone prevented her from securing and following substantially gainful occupation since October 28, 2011, the day after she stopped working full-time. Notably, the January 2024 private certified rehabilitation counselor discussed the impact of the Veteran's migraines on her ability to perform occupational tasks in a competitive labor environment. Although a November 2020 VA examiner opined that the Veteran's migraines allowed her to perform "medium work," the opinion is outweighed by the January 2024 private opinion because no rationale was provided.

Although the January 2024 private counselor focused his opinion on that the Veteran was unable to work from "at least May 2012," the Board can discern no substantive worsening of migraine symptoms between October 28, 2011 and May 2012 such that her migraines did not prevent her from working prior to May 2012. As such, the Board finds that the date of entitlement for this matter is October 28, 2011.

Here, the date of entitlement is later than the date of claim. As a result, an effective date of October 28, 2011, but no earlier, for the grant of a TDIU is warranted.

2. Entitlement to an effective date prior to August 14, 2019 for the grant of eligibility for DEA benefits.

Date of Claim

The Veteran never filed a claim for eligibility for DEA benefits. Rather, entitlement to the ancillary benefit was raised due to the award of a TDIU. Thus, the Board finds that the date of claim for this matter is the same as the date of claim for a TDIU, April 5, 1999, for the same reasons as discussed above.

Date of Entitlement

In the case of a veteran who is alive, the conditions for basic eligibility for DEA include: (1) discharge from service under conditions other than dishonorable; and (2) a permanent total service-connected disability. 38 C.F.R. § 3.807(a). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a). Permanence of disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 3.340(b). The term "
 is alive, the conditions for basic eligibility for DEA include: (1) discharge from service under conditions other than dishonorable; and (2) a permanent total service-connected disability. 38 C.F.R. § 3.807(a). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a). Permanence of disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 3.340(b). The term "total disability permanent in nature" for the purpose of DEA benefits means any disability rated total for the purposes of disability compensation which is based on an impairment reasonably certain to continue throughout the life of the disabled person. 38 U.S.C. § 3501(a)(7).

The Veteran has been granted an effective date of October 28, 2011 for the grant of entitlement to a TDIU. Thus, the Veteran has a permanent total service-connected disability from October 28, 2011, and such is the date of entitlement for this matter.

Because the date of entitlement is later than the date of claim, the Veteran is warranted an effective date of October 28, 2011, but no earlier, for the grant of eligibility for DEA benefits.

 

 

E. I. VELEZ

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Sandler, Counsel

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.