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Court Wins

Board Denial of Increased Rating for Headaches Contained Legal Error

Michael Lostritto

January 9, 2019

Updated: November 20, 2023

Court Win - Increased Rating radiculopathy

Summary of the Case

The Veteran served honorably in the United States Army from 1960 through 1980.  He initially applied for service-connected compensation for headaches in June of 2010.  In October of 2010, the Veteran received a Rating Decision granting service connection for his headaches at a noncompensable rating.  He filed a timely Notice of Disagreement appealing for a higher rating, but was denied.  The Veteran continued to appeal to the Board of Veterans’ Appeals.

Board denies disability rating for headaches above 30 percent

In January of 2017, the Board issued a decision granting entitlement to a 30 percent disability rating, but not higher, for the Veteran’s headaches throughout the entire period on appeal.  In its decision, the Board determined that the Veteran’s headaches had a frequency and severity that could qualify for a 50 percent disability rating.  However, the Board found that his headaches were not productive of the severe economic inadaptability that the 50 percent disability rating requires.  The Board also determined that the Veteran’s record did not reasonably raise the issue of entitlement to TDIU.  Overall, the Board held that the Veteran was able to work part time as a bus driver, most, if not all, of his treatment for headaches has been on an outpatient basis, although he has to pay people to do things which would trigger a headache, there is no indication that such payments rise up to the level of severe economic inadaptability.

CCK argues the Board erred in denying an increased rating for headaches   

CCK successfully appealed to the Court of Appeals for Veterans Claims the Board decision that denied a disability rating in excess of 30 percent for the Veteran’s headaches.  CCK argued that the Board erred in two ways.  First, it did not adequately explain why the Veteran’s headache disability was not productive of severe economic inadaptability.  Second, the Board should have considered whether the Veteran’s headaches render him capable of only marginal employment, thus entitling him to TDIU.  Specifically, CCK addressed the fact that the Veteran was only able to work a few hours each day because of his headaches.

CAVC agrees with CCK’s arguments

CCK argued, and the Court agreed, that the Board failed to explain what constitutes severe economic inadaptability.  The Court noted that although the Board need not precisely define terms such as “severe”, it must explain in the context of the facts presented, the rating criteria used in determining the category into which a claimant’s symptoms fall.  Therefore, it is not sufficient to simply state that a claimant’s degree of impairment lies at a certain level without providing an adequate explanation.  The Court also found that the Board did not address whether the Veteran’s symptoms are capable of severe economic inadaptability, regardless of if they actually do so.  Accordingly, the Court remanded the issue of a disability rating in excess of 30 percent for the Veteran’s headaches back to the Board for readjudication.

To read the Court’s full decision, click here.

About the Author

Bio photo of Michael Lostritto

Michael joined CCK in September of 2016 as an Attorney, was named Supervising Attorney in 2021, and now serves as a Managing Attorney. His practice focuses on the representation of disabled veterans before the Department of Veterans Affairs and the United States Court of Appeals for Veterans Claims.

See more about Michael