BVA ignores competent statements, errs in denying a higher rating for migraine headaches, bilateral ankle disability
The Veteran honorably served in the United States Navy from 1990 to 2010 and was awarded several commendations for his 20 years of service. Upon separation from service, VA awarded him service connection for migraine headaches and bilateral ankle disabilities. VA assigned non-compensable ratings for both disabilities. The Veteran’s migraine headaches caused dizziness, nausea, and sensitivity to light and sound. He suffered from these headaches about three times per month. During an episode he had to spend the day in bed and was unable to function. He felt extreme pain behind his eyes and in his temples. His ankles resulted in weakness, stiffness, swelling, pain, giving way, locking, and fatigability. During flare-ups of pain, he had difficulty walking and standing. He experienced flare-ups about 15 times per month.
Veteran appeals non-compensable ratings for migraine headaches, bilateral ankle condition to the BVA
In June 2016 the Veteran appealed for a higher rating for both his service-connected disabilities. The Board continued to deny higher ratings. Specifically it found the Veteran’s statements about the frequency and severity of his headaches uncredible. With CCK’s help, the Veteran appealed this decision to the Court of Appeals for Veterans Claims.
CCK appeals to Court; CAVC agrees with CCK’s arguments
CCK argued and the Court agreed that the Board provided inadequate reasons or bases for finding the Veteran’s competent reports about his migraine headaches not credible. The Board concluded that the Veteran’s ability to attend a VA examination while suffering from a headache was inconsistent with his statement that he had to stay in bed. The Court found that the Board did not explain why it concluded that all of the Veteran’s migraines were of the same severity as the one he experienced during his examination.
The Court also agreed that the Board wrongly discounted the Veteran’s statements about the frequency of his headaches merely because he made those statements for purposes of seeking VA benefits. Finally, the Court agreed that the Board ignored favorable evidence. Specifically, they discounted that the Veteran experienced bilateral ankle pain on movement during flare-ups. Under VA regulations, pain on motion entitles a veteran to a minimum 10% rating.
The Court vacated the Board’s decision and remanded the Veteran’s claim for further adjudication.
- As a Veteran, How Much Will My Appeal of a Board Denial to the Court Cost?
- I Received an Unfavorable Board Decision; What Should I Do?
- What is the Board of Veterans’ Appeals (BVA)?
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