Winning VA Disability Rating for Migraines

Video Transcription

Brandon Paiva: Hello and thank you for joining us for another CCK Live. My name is Brandon Paiva. I’m an accredited claims agent here at Chisholm Chisholm & Kilpatrick. And with me this afternoon is my colleague Alex Gamache, who’s also an accredited claims agent here at CCK, and Michelle DeTore, who is also an accredited claims agent here at CCK.

And in this video today, we’re going to explain VA disability ratings for migraines and give you a little bit more information that you could potentially use to win your VA claim. So, first, let’s start with an overview about what migraines are.

Migraine headaches are a type of headache that is characterized usually by intense pain that can be accompanied by nausea, vomiting, sensitivity to light and sound, lightheadedness, and sometimes even blurred vision. Migraines can be extremely debilitating and last anywhere from hours to days depending on the person.

Now, migraines often occur in four stages. The first stage is what they call prodrome, which is usually early migraine symptoms, which can have something to do with brain fogs, sensitivity to light, and things like that. The next is aura, where you start to feel a migraine coming on, and then the attack, which is the third stage, which is when you’re actually beginning to feel the pain of the migraine. And then, last but not least, is what they call prodrome, which oftentimes is not really medically called this, but oftentimes a migraine hangover or what they call sort of lasting brain fog after the migraine and headache have subsided.

Although it really is unclear as to what causes migraines, there are triggers that can include even something as simple as hormonal imbalance, alcohol use, stress, sensory stimulation, certain foods, and even certain changes in the environment. Some veterans may even experience migraines with the changing of the seasons.

So, that’s a little bit about what a migraine is and kind of gives you a little bit of some details what we’re going to be working with when we’re defining migraine and just a little bit of a framework.

Now, I’m going to turn it over to my colleague, Alex. So, what I’m curious to know is Alex, how would you get service-connected for migraines? Can you talk to us a little bit about what you need to show and maybe give us a little more information on how you can potentially get paid for your migraines?

Alex Gamache: Yes. So, typically, veterans need three of the following criteria to get service-connected for migraines. The first is a current diagnosis by a medical professional. The second is an in-service event injury or illness. And the third is a medical nexus or basically a link between the in-service event injury or illness and the current diagnosis that the veteran has. It’s important to note that even if a veteran doesn’t have an official diagnosis of migraine headaches, chronic headaches, or head pain, they can still get compensation if the condition causes functional loss or affects their ability to earn wages.

So, if the veteran meets the criteria above, they basically need to submit a claim for service connection, which can be submitted on a VA form 21-526EZ. This form can be submitted online, by mail, in person at your local Regional Office, or with the help of a representative.

Brandon: Thanks, Alex. Now, you really touched on how to get service-connected for migraines on more of a direct basis. But as we know, when dealing with VA compensation, there are often other theories we can use to potentially get service-connected for our various conditions. So, Michelle, I’m going to turn this one over to you. Can you talk to us a little bit about how you can get service-connected for migraines, say on a secondary basis?

Michelle DeTore: Sure. So, oftentimes, you see that migraines are a very common side effect of a service-connected condition. So, typically in this scenario, a veteran would have a diagnosis of migraines and they would have a link to a service-connected condition. Basically, that a service-connected condition is causing these headaches or maybe possibly aggravating them.

You often see it with a couple of different conditions and I’ll kind of go through some of those. We see a lot of time with psychiatric conditions, as you can imagine, Brandon had touched upon how stress is one of the leading causes for headaches. PTSD and anxiety are going to cause a lot of stress, they’re going to heighten that and a lot of times, you see a lot of veterans that suffer from headaches, or that they already had headaches and their PTSD and anxiety trigger an episode. So, that’s when we talk about aggravation that maybe they didn’t have their PTSD or their anxiety, they wouldn’t have that headache or that migraine trigger at that point in time. You also see it for depression.

Another common cause of headaches and migraines is sometimes a poor diet. A lot of veterans, because they are so anxious, they’re not eating enough or eating properly, so that could trigger a headache or migraine. Or sometimes, they’re overeating, and that could also be a common cause for a headache trigger.

You can see it a lot of times for pain and also pain medication. That is a very common side effect of a lot of pain medications, so that’s something to keep in mind, even for neck pain, for back pain. Those alone the pain can trigger a headache or migraine. But also, the medication used to treat it.

High blood pressure causes it. High blood pressure medication is very common for it. You’ll see it with a lot of traumatic brain injuries. A lot of times a big side effect that veterans have down the road is going to be migraines, sinus problems, or sinusitis, rhinitis. You’ll see it a lot because of the pressure right there.

And then tinnitus, because of the ringing in the ears, a lot of times it’s not necessarily that it created the headaches, but it can also aggravate a headache because the ringing can then trigger a headache or migraine to occur at that point in time. So, with the secondary service connection, I think it’s very important that if you’re experiencing this as a side effect and you think it’s possibly a side effect to a service-connected condition or medication you’re taking for the service-connected condition, it’s very important to be talking to your doctors about it so that it’s within your medical records because it’s one of the places VA’s going to be looking. So, I think it’s very important to make sure that you’re making it of record that you’re experiencing that symptom so you can have evidence showing that it is secondary because you’re going to need that link between your service-connected condition and headaches and migraines.

Brandon: Thanks, Michelle. I think you’ve provided a ton of great information there. I think that just further kind of shows really how complex migraines are and the different things that could potentially cause migraines. I think you summarized it pretty well.

Now, we’ve spoken about what a migraine is, spoken about how to get service-connected for both on a direct and potentially a secondary basis. Now, we’ll talk about how VA actually rates migraines. So, VA rates migraine headaches under 38 CFR § 4.124a, under diagnostic code 8100, which is what you’re going to want to remember. Diagnostic code 8100, for the purposes of what we’re going to define here.

Now, this diagnostic code includes disability ratings ranging from 0 to 50% with the criteria based on the severity and frequency of migraines. The criteria is as follows:

A veteran who has a 0% rating will often get migraines with what VA describes as less frequent attacks. In order to get a 10% rating, you’ll have to have migraines that are characteristic of prostrating attacks, averaging one in two months over the last several months. So, a little bit of subjectivity there.

In order to get a 30% rating, the migraines will have to have characteristics of prostrating attacks occurring on an average of once a month over the last several months. As opposed to the 10% rating, which is one in every two months, the 30% rating is at least a prostrating migraine or prostrating attack every month or so.

And last but not least, the highest schedular rating that VA offers for migraines is the 50% rating. This is what VA characterizes as a very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. So, that’s a little bit more severe, obviously, than that 30% rating. This definitely happens more than once a month, we would like to think in our interpretation of this 50% rating.

Now, the term prostrating generally means that migraine headaches so severe and debilitating that the veteran must stop all activity, and lay down for an extended period of time due to complete exhaustion and even physical weakness. This may also require veterans to take medication or seek medical attention depending on how bad their migraine is. So, when we’re talking about the prostrating, it basically has to kind of stop you in your tracks be like, “Well, I need to go lay down for a few minutes. I need to stop whatever I’m doing right now because this migraine is so bad.” So, that’s kind of what VA defines as prostrating, very kind of generally speaking.

So, now that we’ve kind of spoken about what the different VA ratings are, let’s talk about what a veteran could expect in a compensation and pension (C&P) exam for migraines. So, to give us a little bit more information, I’m going to kick it over to my colleague, Alex. Can you talk to us about what veterans can expect or what actually happens during C&P examinations when we’re trying to rate migraines?

Alex: Typically, when the VA determines that migraines are secondary service-connected to a condition or a result of service, they will go ahead and schedule a compensation and pension exam to determine if the nexus exists and the severity of the condition.

So, going back to the direct service connection, the VA examiner will basically give an opinion and say if that condition is “at least as likely as not” due to service and sometimes even secondary to other service-connected conditions. Talking about severity, they’ll also go through specific criteria in the VA exam to determine how severe the veteran’s migraines are.

During these exams, veterans should definitely thoroughly explain the severity of their symptoms to the examiner so that the examiner can properly rate the condition. Like Brandon mentioned, they rate migraines basically on prostrating attacks. So, it’s important to detail all of the symptoms and limitations that occur during a migraine episode so that the examiner can accurately assess the impact of that condition.
If the outcome of the VA exam is not favorable, there are definitely ways to challenge that.

Veterans can obtain a copy of their VA exam to see if any information discussed during the exam is missing or if it’s noted inaccurately and they can also request a second opinion if they don’t believe that the opinion that they obtained in their VA exam is accurate, or they can also get a private physician or their own medical professional opinion.

Brandon: Thanks, Alex. That’s more great information as well. I think one important piece that you highlighted that I think we should all continue to remind our clients and any veterans seeking service connection for migraines: make sure you’re thoroughly explaining the severity of your symptoms to your examiner or your primary doctor. As we know, because of how complex migraines are, not only given in their onset and their triggers, but people often react very differently to migraines when they actually get them. Some people can still kind of suffer through the rest of the day but kind of feel a little bit foggy. Others sometimes get sunspots or dark spots in their eyes, kind of visual hallucinations, up to and including vomiting and nausea and things like that. So, make sure that you’re definitely explaining your symptoms thoroughly because it’s not necessarily a one-size-fits-all kind of symptomology when we’re talking about migraines.

Michelle, I’m going to ask you this question to see if you can provide us with some more information as well. So, now that we’ve kind of talked about the C&P examinations and potentially what the examiner may ask a veteran talking about their migraines, what other evidence can a veteran potentially use to support their claim for service connection for migraines?

Michelle: One big one is that you should be trying to submit lay evidence of in. With lay evidence, there are three major things that I look to include and look for, its duration, frequency, and severity. Duration, frequency, and severity, those are very three big things that go along with the rating criteria. So, we want to know how often they’re happening, how long they’re lasting, and what you can do or cannot do during that period.

So, a lot of times you’ll be talking to veterans and they’ll say, “I experienced a headache. During that time, I have to just go lay down in a quiet dark room until the headache passes.” And then, it’s how long does that take? “It takes several hours until I’m out for the night.” And just showing that that’s how long you’re out for and then showing how often it happens, it happens once or twice a week.

Keep in mind, sometimes veterans have minor headaches and then they have major headaches. So, there’s sometimes different types of migraines they’re having. They’re having ones that maybe they took medication and it went away and that’s one type of headache. Then they have the more severe ones, which are very common, and I see very often is that it’s not always the same severity. Then, the severe headaches happen four times a month and then they’re completely out for two days.

It’s very important to touch upon that stuff. If you are working, I think it’s very important to talk about how it impacts your ability to work. Are you missing days and having to leave early? Are you getting accommodated? When you have migraine, does your employer let you go lay down in the couch in the backroom until it passes which is an hour to two hours? These are very important things to be discussed.

I think it’s also, very important to talk about when you were working, if it was impacting you and how it was impacting you. It’s also really good if you could have what we call buddy statements or friend or family member who can corroborate what you’re saying. Because, VA is very unique in the sense that they often take lay evidence as the same weight as medical evidence. So, if you have friends and family saying the same thing and saying how severe it is, and especially if you have a negative VA examination, you now are adding favorable weight to the fact that your headaches are more severe than what was reported there.

Going along that lines, you can also get your own medical opinion. You can get a medical, you can take a disability benefits questionnaire which we do have on our website, links to them, but they’re also on VA’s website. And you can take that to your doctor and have them fill it out for you to show the severity of the condition.

You could also, generally, just get a medical opinion without the disability benefits, questionnaires from your doctor, especially a lot of times, your doctor often refers you to a neurologist instead of maybe a primary care doctor who we consider a specialist in their fields. They can maybe carry a little bit more weight about their opinion.

So, those are very common things that we do. Again, if you are having these symptoms, it’s very important to be reporting them to your doctor, recording how often they’re happening, what’s happening during it. Because showing consistent medical evidence is also a really good way to support your claim as well.

Brandon: Thanks, Michelle, again, a lot of good information there. I think it really kind of what boils down to as well is you’re not just necessarily limited to the information that is discovered during your C&P examination to talk about the severity of your migraines.

Again, I think what Michelle has spoken about was huge and we’re talking about buddy statements. I think that’s particularly helpful when dealing with migraine cases because you could be dealing with your migraine and you may suffer from migraines every single day and may not see any sort of behavioral changes or how your productivity may change, because you’ve been dealing with them for so long. So, often time getting those buddy statements is really helpful, especially in cases like this.

So, I know Michelle had touched on talking about the severity and limitations that are brought about when a veteran is suffering from a migraine. So, I think this is a perfect transition into talking about TDIU, unemployability based on your migraine condition. So, if you are service-connected for migraine headaches, and those migraine headaches prevent you from obtaining and maintaining substantially gainful employment, that veteran may be eligible for a total disability rating based on individual unemployability, or what we call TDIU.

Now, TDIU, as we’ve spoken about many times in our CCK lives, it allows veterans to receive compensation equal to a 100% rating, even if their combined disability rating is less than 100%. In order to be awarded schedular TDIU, veterans must have one condition rated at least at 60% or more, or if you’re service-connected for two or more conditions, your combined rating must be at least 70%, with one of those conditions being rated at least 40% or higher.

Veterans who don’t meet these qualifications may be eligible for what we call extraschedular TDIU, if they can prove that their migraines uniquely hinder their ability to maintain substantially gainful employment. So, if you suffer from migraines and feel like it is impacting your productivity at work or it’s preventing you from returning back to work or is impacting your employability in any way, you could still be eligible for TDIU, even if you don’t fall into the schedular category. If you have just one condition at that 50% rating, you could still be entitled to extraschedular TDIU based on your migraines alone.

So, I think that about hits the nail on the head. I think we’ve kind of provided enough information for one afternoon. I know this is pretty dense, but we’ve provided a lot of good information as to what migraines are, how to get service-connected, the multiple theories you can use, what evidence you can use, and even provided information as to what you can expect if you’re a veteran going through the compensation and pension examination kind of factor of this, if you’re find that you’re seeking service connection for migraines.

As always, we have more information on migraines in VA rating system can always be found on our CCK blog or through our other CCK videos.

Thank you very much for your attention this afternoon or this morning, whenever you’re watching this video. Thanks for tuning in and be sure to subscribe to our channel. Thanks again.