VA Disability for Migraines & Headaches
READ the blog here: https://cck-law.com/blog/how-does-the-va-rate-migraine-headaches/
- Triggers and symptoms of migraine headaches
- Can you get VA disability benefits for other types of headaches? (tension headaches, cluster headaches, etc.)
- Service Connection for Migraines and Headaches
- Undiagnosed Illness claims (or MUCMI claims) for Persian Gulf War veterans
- C&P Exams for Migraines/Headaches and how to respond to an unfavorable VA exam
- The Appeals Modernization Act (AMA) and submitting new evidence with an appeal
- Secondary Service Connection for Headaches and Migraines
- How to avoid pyramiding headache claims
- VA Migraine Ratings (which is the same as a VA Headache Rating)
- What does “prostrating” mean to VA?
- What does “severe economic inadaptability” mean to VA? (“productive of” vs. “capable of”)
- VA Unemployability (TDIU) for Headaches and Migraines
- Common pitfalls in Migraine and Headache cases
- Final thoughts and tips for VA Migraine Claims and VA Headache Claims
Christian: Good afternoon and welcome to another edition of Facebook Live from Chisholm Chisholm & Kilpatrick. My name is Christian McTarnaghan, and today I’m joined with Alyse Galoski and Michael Lostritto. And here today, we are talking about headaches disabilities: Migraine Headache Disabilities. So let’s just start at a really basic level. Alyse, why don’t you tell us what a Migraine Headache is?
Alyse: Sure. So really generally, it’s the type of headache that usually is accompanied by other symptoms. So it’s not just head beam, you’re also going to get light sensitivity, sometimes dizziness, sometimes nausea. So it’s a type of headache.
Christian: So are there any particularly common associated triggers for a Migraine Headache?
Alyse: Yes. So there’s a very wide variety actually. Hormonal changes is one. For example, when a woman is starting her menstrual cycle that can trigger a migraine. Alcohol; different types of alcohol can trigger migraines–wine, beer. Stress; changes in your sleep, can trigger migraines, certain medications as well–even the weather.
Christian: So, migraines seem to be a really particular type of headache. Mike, are migraine headaches, the only type of headaches you can get VA disability compensation for?
Mike: That’s a great question, Christian. And the answer is–the short answer is no. If you look at the schedule of rating disabilities, under headaches, there really is only one listed. It’s Migraine Headache.
Christian: Specifically lists Migraine Headache.
Mike: Correct. But that shouldn’t–Don’t let that deceive you into thinking that veterans can only apply for specifically migraine headaches, there are other you know, all kinds of other types of headaches. Whether it be cluster headaches, tension, headaches, maybe maybe just an unspecified or general type of headache. All of those can be service-connected, and veterans can receive compensation for them. Despite the fact that the rating schedule only specifically lists migraine headaches
Christian: I definitely have a few clients that have had diagnosed tension headaches or something to that effect, and it doesn’t matter, it should still be rated under the–just the specific headaches, although it says specifically migraines under the VA rating schedule. So you’d mentioned something Mike. You’ve mentioned the concept of service connection. So do you want to explain to our viewers what service connection is, generally?
Mike: Sure, so generally speaking, Service Connection just means that the veteran’s condition was caused by their active military service. And so they’re generally speaking three principles that a veteran needs to show to establish what we call Direct Service Connection. So in that context, veterans typically need to show that there is some type of in service event, disease injury occurrence. They also have to show up current disability. So in the context of headaches, I need to show that, you know, they have a headache, maybe Alyse probably discuss this in a second.
Mike: Not necessarily a diagnosis of a headache, but they do need to show a current disability. And finally, they need to show what’s called a Nexus, which is the legal and medical link between the in service event and the current disability.
Christian: So, you know, you could have–you can unfortunately have been, you know, exposed to some sort of blast in service that could count as in service injury, then you have headache disability currently, and then you have some sort of–it’s typically medical evidence, right, that’s linking that in service blast to your currently, you know, not diagnosed, by your current headaches disability. And that would be the three elements of service connection that you would need to sort of get service-connected to that disability. So you tease this a little bit Mike. Alyse, do you want to talk a little bit about sort of the diagnosis disability concept?
Christian: Would it be a lot?
Alyse: Sure. So like Mike said, you don’t actually need to have an official diagnosis to be considered disabled, or having a disability under VA Law. What you do need to have is some type of effect on your functional loss, or effect on your ability to earn wages. So good example of that is pain. If you have had pain, but you don’t actually have an underlying diagnosis, you can still be considered having a disability so long, you can show that that head pain somehow affects your ability to earn wages. It doesn’t have to completely make you unemployable. It just–maybe it makes you late sometimes maybe it makes affects your concentration. It just has to have some type of functional effect.
Christian: And that’s VA Law’s definition of what a disability–right? Well, causes-
Christian: What causes disability under VA Law.
Alyse: Yes. And that’s a somewhat new contempt–that’s a new case called Sanders V. Wilkie, where they laid that out. So you still might have some trouble. It’s definitely easier to get service-connected when you have a diagnosis. So I would encourage you to go ahead and try and get a diagnosis, but technically you don’t need one.
Christian: That’s something–we’re going to talk about pitfalls sort of throughout the process and a little bit more in a section at the end of this talk. But something you definitely need to be on lookout for is being denied solely because you don’t have a diagnosed disability. Like Alyse noted, this is a relatively new case. Sometimes getting these cases up and going and having the cases or the service connection claims adjudicated based on new cases can take a while. So definitely I would keep a lookout for that, if you’re applying for disability benefits and you don’t have a diagnosis. But that aside, Mike there are certain types of disabilities that can be considered service connection on a presumptive basis, even if they’re completely undiagnosed. Is that correct?
Mike: Yes, that’s absolutely correct. And I think what we commonly see is–this take place in the context of Persian Gulf, you know, veterans. So under US Code Section 1117, there’s a presumption that’s afforded to Persian Gulf–certain Persian Gulf War veterans. And this is a very complicated area. And I know that we have material on this on our website. But generally speaking, what this allows is for veterans who have perhaps an un diagnosed illness or what’s called a MUCMI, to still be able to establish service connection on a presumptive basis, despite the fact that–like we were saying, they may not have a formal diagnosis for headaches.
Christian: I think you you might have mentioned this, but this has sort of it’s a Persian Gulf War concept, right, in terms of those who have served overseas in the Persian Gulf.
Mike: Yes. So specifically, we’re looking at veterans who served in that region from August 2 1990, until–I’ll just just get it right here–December 30–31st, out to 2021 currently. And so you know, if you’re a veteran and you served in the Persian Gulf War, during that period, and you know, you have pain that’s related to–what you feel is a headache or a migraine headache, it’s worth taking a look at that specific regulation or statute to see whether you can apply on a presumptive basis.
Christian: And for a presumption would mean that you wouldn’t need that Nexus element that you were talking about before. If you served in that–in the appropriate area at the appropriate time and you have an undiagnosed disability, that’s consistent with pain, it’s possible for you to get service-connected without having have medical evidence or that sort of link between the service incident and your current disability.
Mike: That’s a great point. Basically, the presumption allows for a shortcut.
Mike: So the veteran still has to have a current disability, so a headache. But really, what the presumption does is allows them to not necessarily have medical evidence that provides a specific medical Nexus. So it’s very helpful to veterans who maybe can’t obtain that type of medical evidence.
Christian: And so shifting gears, typically, when you’re not going to get service-connected on a presumptive basis Alyse, you do need that Nexus, right?
Christian: And a lot of times that comes in the form of a Compensation or Pension examination. To our veterans that are in listeners and watchers, it’s probably not a foreign concept to them to have to go to a C&P Exam. So but specifically for headaches-
Christian: Could you maybe explain a little bit how those C&P Exams would work?
Alyse: Sure. So C&P Exam for headaches: If it is–if the board does request a Nexus opinion, which usually they will, when you’re looking for a service connection. There will be an opinion about Nexus that would be the examiner would ask you for your history. “When did your headache start?” And then they would make an opinion as far as whether your headaches are related to your service. But some other questions that you might see in there–I have to say it’s a very generic exam. It’s one of the more generic exams. You’re seeing really just check boxes. Are these headaches, prostrating which–we’ll get into the definition of that in a little bit. But, “Are these headaches prostrating?” “Yes” or “No”. There’s usually not really an explanation about what that means even. What the examiners view of that definition is, and why they’re determining that your headaches are not prostrating. They also have–instead of really getting specific about how frequent your headaches are, they tend to have more like check boxes. Occur X amount of times a month, rather than being really specific to your actual case. And anything else–Sometimes they don’t get into any other symptoms-
Christian: More than five–less than five sort of thing.
Alyse: Yes. And you have to fit into one of the boxes. So it doesn’t–they don’t do a great job at painting your actual functional loss, as far as the headache exams are concerned. So–
Christian: So the point here being that if you do get an examination, even for purposes of service connection, there’s usually going to be a severity component of that examination. Because if you do get service-connected then-
Christian: They’re going to have to decide on what rating you should get. So I think something that our listeners would be interested in is, “What happens if you go to a C&P Exam and it’s an unfavorable exam.” So it either determines that there’s not an access to service, and you know, later we’re going to talk about ratings. So why don’t we just start there?
Alyse: Sure. So if it’s something that we’re–they’re saying there, it’s not related to service, there, couple things you can do. You can get a go out and get your own private exam. You can definitely absolutely no matter what, get a copy of that exam and see if there’s anything in that exam that you can challenge. Maybe there’s something that was written down there that you didn’t say. Or there’s something that you said that wasn’t written down there, just for an example. So you can challenge that actual exam. One thing, as far as Nexus is that, a non doctor can’t do, unfortunately, is make that Nexus. So that’s really why your own private doctor is going to help you with the Nexus. But we’re talking about severity, which is the step after you get service-connected. Absolutely submit your on Lay Statements. Because you are competent to say how your headaches affect you, you’re competent to say I was very they are. So as far as the Nexus, you might have to get your private medical doctor to dispute that. But if it’s just them saying that your headaches aren’t that bad, submit your on Lay Statements. Submit Lay Statements by people who love you, or people who work with you who have seen, you know how you headaches can really affect your day to day.
Christian: So we’re going to turn to you Mike and ask a question about the Appeals Modernization Act. So if a veteran needs to submit new evidence with an appeal, what should that veteran know about the AMA?
Mike: So the AMA just to take a step back, is the new appeal system, which was enacted in law, and is now in place for Veterans Filing Claims and for decisions issued on or after February 19th, of this year. And essentially what this does is: If a veteran has previously filed for service connection for a headache condition, and has been denied, and is looking to now refile for that condition, they’re going to need to provide, along with their new supplemental claim, what’s called New and Relevant Evidence. And so this is, as the regulation status, is a low standard, but its standard nevertheless. And what that really means is that, a veterans going to need to provide some type of evidence that didn’t exist or wasn’t already considered by VA at the time of the initial denial.
Mike: So what we can do in these instances is oftentimes provide updated treatment records. We can provide updated you know, progress note. We can provide new Lay Statements. All that which detail maybe the new severity of the condition. And you know, submitting that along with a supplemental claim in the AMA, will likely be enough to meet that very low threshold for new and relevant evidence. But it is different than what we call the Legacy System or the Old System. So I think it’s really important for veterans to know that if they’ve previously been denied for service connection for this condition, that they are going to do it–going to have to do something a little bit extra, and provide evidence in order to essentially reopen their claim.
Christian: So what would happen, let’s say if a veteran didn’t provide the correct type of evidence to either–with an appeal in the AMA. What would the result of that be?
Mike: So it’s very likely that if a veteran’s submitting a new claim, a supplemental claim and they don’t provide any evidence, it would be denied on that basis alone.
Mike: VA probably wouldn’t even reach the merits to the underlying question of whether service connection is warranted. And so if, you know–the good thing about the new system is that veterans can continuously refile a supplemental claim as they obtain and can submit new and relevant evidence.
Mike: But it’s really important for, you know, veterans to maintain the same effective date that they do provide new and relevant evidence at the time they’re submitting their appeal or the claim.
Christian: Okay. So sticking on the theme of service connection likens in sticking with you asking you this question. So, before we get to ratings, Secondary Service Connection, could you explain that concept?
Mike: Sure, and this is an important concept. Previously we were speaking about Direct Service Connection. And Secondary Service Connection is different in the sense that if a veteran has a service-connected condition, which causes contributes to or further aggravates
Mike: Or a non-service-connected condition, then that non-service-connected condition can become service-connected by virtue of being caused by the service-connected condition. So it’s it’s a little complicated. But you know, for instance, we see this oftentimes in the context of say, a neck condition.
Mike: A veteran may have a service-connected neck condition, which then has developed over time and become more severe and is now causing the veteran to experience headaches. So despite the fact that the veteran’s headaches may not–specifically stem from an in-Service Event, the fact that headaches are now being caused by another service-connected condition, in this case, the neck condition, the veteran will be able to file and likely succeed on a claim for secondary service connection of that headache condition.
Christian: So you have a Service-connected Disability that causes the headaches,
Christian: That’s one way to get secondary connection. So let’s say Alyse, that the service-connected headaches disability causes something else, what happens there?
Alyse: Well, then you could if your service-connected for that headache condition, you could get secondary service-connected for that second disability. But if you don’t have –do mean, if you’re if the condition, you’re talking about a line, or–
Christian: Like, let’s say you have disability,
Christian: And it causes you to become depressed.
Christian: What would have a situation?
Alyse: So long as the headache condition is service-connected, and you can get service-connected for the headache condition. But if we’re going to expand this,
Christian: For the depression you mean?
Alyse: –For the depression, that we’re going to expand the hypothetical more and say that your service-connected C-Spine condition, your neck condition caused or aggravated your headaches, then that also caused depression, you could technically get both secondary Service-connected for the headaches, and then for the depression.
Alyse: So but you have to start with something that is Service-connected.
Christian: And for–I know that some of my veteran clients take some pretty serious medication for their headaches. These can be incredibly debilitating, incredibly painful, and that can really be tough on one’s gastrointestinal system. So if there were an ulcer or some sort of gastrointestinal disability, then even that could potentially be service-connected, because you have to take your medicine to treat your Service-connected Disability, and that’s causing another disability. So–
Mike: And the reverse works as well. So if a veteran has a Service-connected Condition, that’s not a headache condition, and they have to take certain medications for that condition. And one of the side effects of that medication is that it causes headaches,
Mike: Then that’s a basis as well, for a veteran to claim service connection for the headaches based on the fact that they’re taking medication for their Service-connected Condition.
Alyse: I think that’s an important point to make. That even when we’re not even talking about the Secondary Service Connection around so long as your medication that you’re taking as prescribed. And it is based on something that Service-connected, the effects of that that condition can be compensated for. So for example if you are on medication–pretty severe medication for a pain condition or your headaches, and it causes you not to be able to drive and now you can’t work, well, then you could potentially get TDIU for that. even though it’s really technically the medication and not the underlying condition. So long as the reason for the medication is Service-connected.
Christian: So before we move on to ratings, I just want to make one point, although you can get Secondary Service Connection for a lot of this stuff. If you’re–let’s go back to our previous hypothetical: If your headaches make you depressed, but you already have a rating for a psychological disability. You can’t get two depression ratings. One because of something that happened to you and service made you depressed, and two, because your headaches make you depressed. That would be called Pure Meeting, and that’s not allowed, because you would be getting double compensation for the same disability. So that’s just something to keep in mind. For veterans who are trying to apply for secondary service connection and things like that. That you can’t get two ratings for the same symptoms. That’s not allowed–
Alyse: Even if you’re diagnosed with two different types of headaches, it’s really those symptoms are very similar, you could be running into a Pure Meeting issue when you’re only going to get compensated for one of them.
Christian: Did you have something to add?
Mike: No, that I was going–I was going to add to Alyse’s point. That’s a great point. You know, we were talking about before the fact that, despite the fact that the Rating Schedule only lists migraines, you can be service-connected for various types of different migraines. That’s true. But along the lines of you were saying. With Pure Meeting, you’re only going to be actually compensated for you know, basically one of the headaches.
Christian: You’re not going to get a tension headaches rating, and the migraine headaches,
Christian: At same time.
Christian: Alright, so we’ve been talking a lot about Service Connection–Secondary Service Connection. Let’s get into Ratings. Do you want to explain how the rating criteria for headaches works, Alyse?
Alyse: Yes. So it is what we call a Successive Rating Criteria. What that means is, if you think of it as a–the Lowest Criteria is you need symptom A. And then to get the next rating, you need symptom A plus B. And then for the next you would need A plus B, plus C. The idea being that they all build upon one another, and you need all three to get the third highest. That what’s called a successive rating criteria. For the migraine or the headaches rating criteria in general, that is going to be found under 38 CFR 4.124A. And that’s diagnostic code 80100. The lowest code here is a Non Compensable or a zero percent. The terminology in this diagnostic code is pretty general overall. Actually, there are a lot of words that that don’t really have definition. But Non Compensable, you’re going to be looking at something that means just with less frequent attacks.
So it’s hard to say what that exactly means. The board hasn’t really said it. The VA hasn’t really defined what that means exactly. The next highest has our favorite word or at least in VA Law, which is prostrating. And I say that because no one really knows what that means. There are some definitions of it, which we will get in to, but it’s difficult to know what prostrating means. Especially because the next three criteria habit, but they differentiate between different types of prostrating. And they also have a severe, frequency rather component. So the prostrating component is really the severity. The next component is your frequency. They go up to 50%. I could go into all of them specifically, but you can find this online. Like I said, it’s diagnostic code 8100. But what is important to know–is they have this prostrating component, and then the frequency component.
Christian: Do you want to maybe let us know, though, so we can talk about sort of the sections? Or do you have the rating criteria-
Alyse: I do
Christian: In front of you Mike?
Christian: Do you want to read the 50%? rating? And then Alyse, do you want talk about maybe what some of these words mean?
Mike: Sure. So for a veteran to obtain the highest rating under Diagnostic Code 80100, for migraines, they would have to show–and this is the terminology of the Diagnostic Code. They have to show, “With very frequent, completely prostrating and prolonged attacks, productive have severe economic inadaptability.” So that’s kind of a mouthful. And as Alyse was saying, the regulation doesn’t really go into defining the terms. In particular, if we were to loo–you know, VA has its own adjudication manual that it uses, and it attempt to define some of the terms there. But I think–generally speaking, I think it’s fair to say that a lot of the terms in this particular Diagnostic Code go, unfortunately undefined. And that makes it very difficult for the board and for the regional office, to really then assign the appropriate rating.
Christian: Absolutely. So what little–so what indication, do we have it all, Alyse, about what prostrating means
Alyse: –prostrating means. So and when you look at when VA actually does adjudicate it, usually what they do is they look both to the dictionary and to the M 21. So the dictionary usually defines prostrating as, “Complete physical, or mental exhaustion or complete exhaustion or powerlessness you’ll see kind of a combination of those words.” Hard to say even though what that means. What does it mean to be completely exhausted and powerless. The M 21, which is the Adjudication Manual adds a little bit, but still again to be honest, it’s not super–
Christian: Pretty vague
Alyse: It’s pretty vague. There are two different types of prostrating within this rating criteria. One of them is Characteristically Prostrating and then the higher one is Completely Prostrating. So, the M 21 defines Characteristically Prostrating as, “Causing extreme exhaustion, powerlessness, debilitation or incapacitation with substantial inability to engage in ordinary activities.” The definition of Completely Prostrating is basically the same except for– without this substantial inability, they have a central total inability to engage in ordinary activities. So the difference is their saying. Basically, one of them is of substantial inability to engage in activities and the other one is a total inability.
Tough to say what an ‘ordinary activity’ is. But usually when you are having to go to sleep, or lay down in a dark room or sit on the floor and you can’t engage in anyone. That’s when you start to see more of a prostrate–more examiners find that your headaches are prostrating. If you’re someone who can work through your headaches, it’s difficult to prove that your headaches are what’s considered prostrating, because they’re not causing extreme powerlessness, right. So the sleep is a really good example of it. If you have to just lay down and kind of close out the world with your migraines, which is pretty common.
But it can be difficult because like we said, diets–for migraines that’s kind of common–have to lay down be completely dark. But if you just have tension headaches, you don’t always have to do that. You can sometimes work through them, they can be very distracting, but you don’t necessarily need to go to sleep. So that’s where we run into a lot of difficulties with the Rating Criteria. Is this–is trouble with this prostrating element. But as of now, we do have to show it to get up to get a higher rating, because it is what’s considered a Successive Rating Criteria, you do need to show that to get at least a 10%.
Christian: And so there’s one more phrase in the rating criteria, and it’s good of a tongue twister. So it’s Severe Economic in Adaptability. Does anything tell us what that means? Either of you. Putting that out to both of you this is–
Mike: This is admittedly pretty difficult, I would say, to really nail down. We know from VA’s Adjudication Manual that they use, that it doesn’t necessarily mean that the individual is incapable of any substantial gainful employment. At least that’s what they say.
Mike: And so, outside of that, I think it’s really important for veterans to know that if they’re seeking a 50% max rating, and they need to show this severe economic and adaptability. What they really should be looking for his symptoms that forced them to take a break from whatever they’re doing and go down, lay down in a dark room where they really can’t do much of anything. It doesn’t necessarily mean that you know, they have stopped work completely. Maybe they need to take two days off a week. Maybe they need to take one day off a month, something like that.
And it may be they don’t take any days off, but they’re just really powering through. And the severity of their condition is capable essentially, of providing that economic in-adaptability. But it hasn’t actually–to this to, you know, to this point in time, cause them to take time off from work. It’s it really goes to the severity of the condition and how it impacts the veteran’s ability to work and function. And so, you know, we’ll get into this a little bit later. But I think this can really be really teased out in a good Lay Statement.
Christian: Absolutely. And so Alyse, the Rating Criteria says, “Productive of Severe Economic In-adaptability.” But that’s not exactly what’s required. Right?
Alyse: So actually, all you need to show is that, it’s capable of. There’s Case Law on that. You don’t need to show that it actually causes Severe Economic In-adaptability just–as Mike was saying it’s capable of doing so. So again, it there is some overlap with the prostrating. We’re showing how severe it is and how that could potentially impact your employment. But you don’t have to show that it actually does. It’s not TDIU. So and the case law says you don’t. That’s one of the most common mistakes that you’re going to see in these headache claims, at least when you’re getting into the these more severe 50% realm cases, is they deny you a 50% because you–you’re working, basically. First you can be working. This is not like I said IU. You do not have to not be working. Severe Economic In-adaptability. Even though it’s hard to say exactly what that means. We know it doesn’t mean complete unemployability or even an inability to engage in Substantially Gainful Employment, which is the standard for TDIU. Because it’s only a 50% rating, right? If you if you met that higher, he would be getting a 100% rating. If you were if your disability was preventing you from Substantially Gainful Employment. The–I lost my train of thought. [laughing]
Christian: That’s okay. I wanted to sort of tease out where you kind of ended that thought which is about TDIU.
Christian: So Mike, why don’t you pick it up from there.
Christian: But what happens if–so you have severe–so your headaches are capable of producing Severe Economic In-adaptability. Let’s say you have a 50. But what if your headaches are even more severe than that? What if your headaches stop you from being able to work?
Mike: There’s an additional benefit that veterans can seek and shorthand is TDIU, but it basically means Total Disability based on Individual Unemployability. And again, that just means that the veteran service-connected disability. So in this case, service-connected headache condition would preclude the veteran from being able to obtain or continue maintaining what’s called Substantially Gainful Employment. So that basically their ability to work. So if a veteran has a service-connected headache condition, perhaps are being compensated the 50% rate already,
Mike: But the severity is increased, or they feel that the 50% rating doesn’t accurately really contemplate the real severity of their condition, they can raise TDIU by submitting a letter and saying that they’re seeking this benefit. There’s an additional form that they will probably have to fill out as well. But raising the benefit to VA will let them know that you’re seeking Unemployability Benefits due to your Service-connected headache condition.
Christian: Alright, great. So this has been a lot of information. And we sort of been talking about a lot of different elements of headaches claims, both service connection and rating. One of the things that we always also like to talk about–and we have been talking about it throughout the whole presentation, the whole talk is what are some common pitfalls that you think we should let people know about in terms of VA’s adjudication of headaches disabilities?
Alyse: Sure. So one of the good things about the fact that we don’t have really any definitions for what it means to be prostrating or even what it means to be so capable of causing Severe Economic In-adaptability is the fact that VA, at least in their board decisions, are supposed to be actually defining those things, and they’re not. So that’s one–at least at core, that is a very common argument that we will make. The reason for that is that you as a veteran, are entitled to know what did–what the standard is that you’re being required to meet. It shouldn’t just be some word that means nothing to you. They have to explain what what it takes to be prostrating, for example, and why your actual disability doesn’t reach that level, and what a disability might look like if it did reach that level. Usually, you don’t see that. Usually you just see this isn’t prostrating or they just rely solely on a VA examiners check mark that says it’s not prostrating without any further discussion. And that’s inadequate. That’s a very common one. Another one–and I know we were just talking about this, but that–the severe economic inadaptability. It has to just be capable of it, it doesn’t have to actually cause it. Kind of going off what we were talking about before. That’s another really common one.
Mike: And I think another common mistake that VA often makes in adjudicating these claims that I see, is VA will consider the effects of medication the veterans taking.
Christian: Absolutely, that’s my point.
Mike: And so, you know, as you can imagine oftentimes veterans who experience headaches or migraines, will take pain–some time a pain medication to help them deal with that pain. And so we oftentimes, unfortunately see VA examiner’s say, “Well, yes, you have maybe severe headaches, but you’re taking pain medication that allows you to function on daily basis, and takes care of all of your symptoms, and therefore you shouldn’t be rated as highly.” And that’s really not correct, specifically with this particular disability, you know. Veterans should not be–rather, veterans use of medication should not be held against them.
Mike: When considering how high their headaches rating should be. So don’t let the VA examiner downplay your symptoms, just because you’re seeking medication.
Mike: That’s improper. Another thing I’d like to add too is, and we were talking about secondary service connection earlier. VA has to really consider not just Direct Service Connection, but Secondary Service Connection when they’re indicating your case, and oftentimes will see that they just solely side the case, based on whether the rock service connection has been established or not. But they do need to and if they don’t, you should raise it to them, they do need to consider all theories of service connection, including Secondary Service Connection. So just keep that in mind as a–really another alternative basis to hopefully establish your claim.
Christian: So if he is only looking at whether your headaches are caused by something that happened in service–Make sure that if your headaches or maybe being caused by another service-connected disability, that VA is adjudicating that as well. They don’t just stop at step one. And I just want to emphasize this point, although you said it. We’re just talking about headaches, specifically, when it comes to medication, there’s a sort of a larger issue with me out there. But I sort of wanted to make that clear, without going into the weeds there that we’re just sort of talking about that concept with respect at 80100.
Mike: Right, then the same doesn’t necessarily apply to things like hypertension,
Mike: Arguably psych. So we’re–like you said, we’re just specifically talking about Migraine Headaches and the fact that the VA can’t use or use your use of medication against you.
Christian: So, I think we’re getting pretty close to wrapping up here. But we always like to sort of leave with some parting thoughts. Alyse, you want to share, maybe a thought or two parting–thought or two about something that veterans watching this should keep in mind when they’re trying to pursue their headaches claims.
Alyse: Sure. So know, it was very honest about how I feel about the C&P Exams, and how you know, effective or how detailed they are. But one thing that you should do is always attend them. Because you need to basically. VA will say this, “Their duty to assist is it is a two way street.” So if you don’t attend the exam, then you’re kind of stuck. It’s hard to make any duty to assist, you know, arguments, because you’re not actually attending the exam. So do your best to attend those exams. And at those exams be as detailed as possible. But also be honest. Always request a copy of the exam afterwards. So that you can look at it and make sure that it’s an adequate, you know, representation of what you thought you went through. Remember that the examiner isn’t going to be somebody that you’ve necessarily met ever before. And they’re typically not very long. So that’s why it’s always good to supplement your own record with your own private treatment doctors or even the doctors that you treat with at the VA center, as well as your Lay Statements.
Christian: And VA actually can deny the claim outright–
Alyse: If you don’t show up
Christian: If you don’t show up for the examination. So that’s something that’s-
Else: It’s really important
Christian: Really important to remember. Because that’s a long time, and sometimes you get to that stage–Definitely go and continue on with your claim any other thoughts, Mike?
Mike: So I just like to emphasize really the importance of Lay Statements in the context of a headaches claim. And so in my opinion, at least Lay Statements will really make or break your case in the context of a headaches case. And the reason for that is partially because it’s very difficult for somebody else to assess the severity of your condition when it comes to headaches. And there’s no better–there’s no person positioned better than the veteran to be able to detail the severity of their condition, the frequency of their condition, how chronic their condition is, the duration, and the impact that it has on their on–basically on their employment. The veteran is best positioned for that, and their Lay Statement will be credible in helping detail some of those things.
So I think when you look at the diagnostic code, and specifically what it requires, veterans should keep in mind that in their Lay Statements, they should really focus in on the frequency of their headaches, the–you know, how chronic their condition is. So has it lasted–two times per month over the past six months over the past year, you know, since you got out of service. And finally, really the impact that it has on the veterans daily activities and ability to work. And that goes to the prostrating, basically, element which are in the diagnostic code. And so hitting those three things, I think it’s really critical for veteran when you’re doing a detailed Lay Statement to be able to maximize the benefit under this Diagnostic Code.
Christian: And one suggestion that I would have is, as you said Alyse, the DBQ’s or the C&P Examinations for headaches, kind of try to put every veteran in this one particular box. They might not fit. So sort of synthesizing what you were suggesting or Mike was suggesting, don’t be afraid to submit a Lay Statement in response to the examination. Especially if you’re able to, obtain a copy of it. “It’s more frequent than that. That’s not what I said, you know, this is more severe–” Things of that nature. Don’t be afraid to tell VA what you think of the examination in a clear sort of direct way that focuses on maybe symptoms or severity that was missed in the context of that examination. Because less than five can be one, but less than five can also be four. Or you know, or maybe they just misheard, or the VA examiner maybe just heard you say something about that. So that’s a thought that I would leave everyone with. Any final thoughts, in addition to what you’ve noted, before we sign off?
Alyse: I guess I would just also say, you know, we talked about Secondary Service Connection for a while, there is also something called Separate Ratings. So you might even be compensated for something that’s not necessarily under the Headaches Code, if it’s causing your headaches, for example, depression. But really what I want to say is, when you are making claims or Lay Statements like Mike was saying, don’t just think about what your headaches are doing, as far as you know, the light sensitivity. Are they also impacting other areas of your life other than work? Are they causing, you know, social problems? Are they causing depression, because of your inability? Because those are all things that could potentially also be breakable.
Mike: One, just one final thought from me. And this also appears in the VA’s Adjudication Manual. Sometimes it can be helpful for veterans to create with–VA calls a Headaches Journal. And so that’s something veterans can keep which documents the date, the time and the frequency of their headaches and the severity as well. And so that’s something that if you know, the veterans are experiencing headaches, they can they can submit. And that just is further evidence, further proof to help substantiate their claim. And like I said, there’s nobody better to be able to assess that than the veteran.
Christian: Great. Well, I think that’s it for us today. Thank you very much for watching. Again, my name is Christian McTarnaghan, and today I was here with Alyse Galoski and Michael Lostritto, and we were talking about Headaches. Hope to see you again soon.
- Board’s Double Denial of Veteran’s Heart Condition Claims Contained Legal Error
- Bilateral knee condition denial ignored possible connection to service
- Board Erred in Denying Service Connection for Veteran’s Psychiatric Condition and Seizure Disorder
- Board Fails to Discuss Prior Diagnoses of Psychiatric Condition in Denying Service Connection
- Board Fails to Address Lay Evidence Regarding Severity of Condition in Decision to Deny Veteran Increased Rating for Lumbar Spine Disability
- Secondary Service Connection & Aggravation
- Military Sexual Trauma (MST): How to Get Service Connection – Video
Share this Post