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Court Wins

Board Failed To Adjudicate Entitlement To Extraschedular Referral For Headaches

Bradley Hennings

May 1, 2018

Updated: November 20, 2023

Court Win- Increased Rating right leg fracture


The Veteran served on active duty from June 1989 to June 1992, earning numerous decorations. She experienced headaches which caused vision impairment, dizziness, difficulty seeing computer lights, and emotional distress. These headaches made it hard for her to concentrate and affected her work. The Veteran lost jobs over the years because her migraines made her incapable of effectively doing her jobs. She spent multiple days in bed due to her headaches.

In January 1997, the Veteran filed a claim for service connection for headaches, and that September, the Regional Office granted the claim and assigned a 10 percent rating. In October 2002, she filed an increased rating claim, and the RO granted a rating of 30 percent but no higher. The Veteran filed another increased rating claim in October 2009, but the RO denied a higher rating. She filed another increased rating claim in January 2011 and requested entitlement to Total Disability Based on Individual Unemployability (TDIU) in August 2016.

Board decision failed to adjudicate entitlement to extraschedular referral for headaches

In December 2016, the Board of Veterans’ Appeals granted the Veteran a 50 percent schedular rating for her headaches, and remanded the issue of entitlement to TDIU for a vocational assessment to evaluate the impact of her service-connected disabilities on her ability to function in an occupational setting. It failed to adjudicate her entitlement to an extrachedular referral for her condition.

CCK appeals headaches denial to the Court

CCK successully appealed to the Court the Board’s failure to adjudicate whether the Veteran was entitled to extraschedular referral for her headaches.

CAVC agrees with CCK’s arguments

CCK argued, and the Court agreed, that the Board erred when it failed to consider whether the Veteran was entitled to extraschedular referral for her headaches. The Court noted that the record includes evidence that the Veteran’s migraines cause vision impairment, dizziness, difficulty seeing computer lights, and emotional distress, and the diagnostic code under which she is rated (diagnostic code 8100) does not contemplate these symptoms. Furthermore, the Court recognized these symptoms may cause marked interference with employment. Indeed, the Veteran stopped working, at least in part, due to her headaches, and even before she stopped working entirely, her headaches were so severe she was reduced from full-time to part-time work. Thus, the Board’s failure to consider whether extraschedular referral was required rendered its statement of reasons or bases inadequate. On remand, the Board must consider if referral is warranted.


About the Author

Bio photo of Bradley Hennings

Bradley Hennings joined Chisholm Chisholm & Kilpatrick as an attorney in January 2018 and currently serves as a Partner in the firm. His practice focuses on the U.S. Department of Veterans Affairs (VA) and the U.S. Court of Appeals for Veterans Claims.

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