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Court Wins

Board Denied Increased Ratings for Headache and Cervical Spine Conditions, CCK Successfully Appealed

Michael Lostritto

April 20, 2019

Updated: November 20, 2023

Court Win - Increased Rating radiculopathy

Summary of the Case

The Veteran served honorably in the United States Army from August 1981 to August 1986.  During service, he sustained a cervical spine injury following a jeep accident, which required fusion of the first and second cervical vertebrae.  In September 1986, the Regional Office granted service connection for a cervical spine disability, assigning an initial 20 percent rating.  This rating was later increased to 30 percent in May 2004.  In a February 2009 statement, the Veteran reported increased pain in his neck and that he had trouble sleeping at night because of the pain, requiring use of a cervical collar.  Two years later, he applied for disability benefits for headaches, indicating that he was claiming service connection both as due to the in-service injury and as secondary to his cervical spine disability and resulting pain.  The Veteran also reiterated that he has experienced insomnia ever since his in-service injury.

In December 2011 and again in March 2012, the Veteran attended VA examinations for his headache condition.  On both occasions, the VA examiners noted that his headaches are very frequent, prostrating, and prolonged and affect his ability to work as he needs accommodations for symptoms relief.  The Regional Office then granted service connection for migraine headaches as secondary to the Veteran’s service-connected cervical spine disability and assigned an initial 30 percent evaluation.  In November 2012, he appealed to the Board of Veterans’ Appeals, requesting higher ratings for both his cervical spine and headache conditions.  The Veteran attended another VA examination for his headaches in July 2016.  The examiner indicated that he experienced prostrating attacks once every month, but that his headaches were not very prostrating and prolonged attacks, productive of severe economic inadaptability.  Shortly after, the Board issued the decision on appeal.

Board denies increased ratings for headaches and cervical spine disability

In August 2017, the Board issued a decision that denied entitlement to increased ratings for the Veteran’s migraine headaches and cervical spine disability.  The decision also denied referral for extraschedular consideration of his conditions.  In its decision, the Board found that the Veteran’s headaches were not completely prostrating in nature and were not capable of producing severe economic inadaptability.  The Board specifically noted the findings of three VA examiners and that the Veteran was able to retain employment despite his headaches, and with reasonable accommodations.  Furthermore, the Board determined that extraschedular consideration was not warranted for the disabilities on appeal.  Specifically, the Veteran did not display symptoms that were not contemplated by any applicable rating criteria.

CCK successfully appealed to the Court of Appeals for Veterans Claims (CAVC) the Board decision that denied the Veteran entitlement to increased ratings for his headache and cervical spine conditions.

Migraine Headaches

In regards to the Veteran’s headaches, CCK argued that the Board erred in denying entitlement to a disability rating in excess of 30 percent for three reasons:

  1. The Board failed to define the terms in Diagnostic Code 8100 upon which it relied to adjudicate the Veteran’s claim.
  2. The Board used the wrong standard for determining whether his headaches were productive of severe economic inadaptability.
  3. The Board failed to discuss favorable evidence regarding the severity of his headaches

The Court agreed the Board erred with respect to the “productive of severe economic inadaptability” criterion in denying entitlement to a higher evaluation for his migraine headaches.  Specifically, the Board improperly required the Veteran to demonstrate that his migraine headaches actually produced severe economic inadaptability, instead of considering whether the migraine headaches were capable of producing severe economic inadaptability.  The Court also held that the Board overlooked that the Veteran was able to maintain employment because of the accommodations provided by his employer, suggesting that his headache condition might produce severe economic inadaptability without such accommodations.  Furthermore, the Court agreed with CCK’s other arguments as well, finding that the Board adopted the opinion of the July 2016 examiner on this issue without discussing other evidence to the contrary and failed to define the terms in DC 8100.

Cervical Spine Disability

For the Veteran’s cervical spine disability, CCK argued that the Board erred in failing to provide adequate reasons or bases addressing whether referral for extraschedular consideration was warranted for his cervical spine disability based on sleep impairment symptoms or in determining whether a separate evaluation for those symptoms was warranted.  Specifically, CCK asserted that the Veteran experiences difficulty sleeping as a result of the pain associated with his neck disability, and that symptom is not contemplated by the 30 percent schedular rating currently assigned.

Here, the Court agreed that the Board erred in failing to address the Veteran’s sleep impairment symptoms and whether they warranted extraschedular consideration or consideration of a separate rating.  Accordingly, the Court set aside the Board’s decision and remanded the Veteran’s case for readjudication.


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