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Increased TBI & Migraine ratings

Increased TBI & Migraine ratings

This case involves several issues but centered around two: the veteran's entitlement to increased TBI (Traumatic-Brain-Injury) and migraine ratings. 

ISSUE ON APPEAL TO THE CAVC (TBI & Migraine Ratings).

The veteran in this case was in a car accident while in-service.

Since that time, he had many problems, including multiple migraine headaches each week. The service-connected migraines caused light and noise sensitivity and were so painful to cause vomiting.  When he had the headaches, the veteran had to lay down in a dark room, without people around, and without eating until they passed. He had "explosive head syndrome" in at least half of his headaches. He had not worked in more than 2 decades.

The BVA, overlooking an extensive medical records pertaining to the veteran's headaches, the BVA found only that "the most probative evidence" showed that the headaches weren't "prostrating" and that the veteran's symptoms fluctuated wildly. Based on this statement, the BVA assigned a 0-percent rating prior to 2016.

The BVA, with arguably no analysis, appears to have relied on the veteran's inability to secure and maintain employment since 2006 as also being the lack of evidence "to show time lost from work due to headaches." 

Additionally, the veteran sought a rating of higher than 10-percent for his TBI. The BVA found that the veteran's “mild memory loss,” was indicative of level 1 impairment.  The BVA did not, however, acknowledge that in order for a higher level of impairment to be established for a TBI, “objective evidence on testing” of more severe impairment was necessary.

RESOLUTION AT THE CAVC.

In the Joint Motion for Remand, the VA and the veteran agreed that the BVA had failed to provide an adequate statement of the reasons for its decisions rating the veteran's migraines, for failing to define the terms used in the diagnostic criteria for migraines, and for failing to explain whether the severity of the veteran's migraines resulted in economic inadaptability.

As to the TBI, the veteran and the VA agreed that the BVA had failed to procure the neuropsychological testing that was necessary before a higher impairment level could be adequately assessed.

The CAVC vacated the BVA decision and remanded it to the Veterans Law Judge to remedy the errors in the decision.

If you believe you are not properly rated for your migraines or TBI by the VA Regional Office or by the BVA, and would like help appealing a VA Ratings decision to the BVA or a BVA Decision to the CAVC, click here to have an accredited VA attorney from the law firm of Attig | Curran | Steel, PLLC, take a look at your case.

Case Details

OGC Attorney: Amanda M. Haddock (link to attorney's LinkedIn page)

Veteran Representation at CAVC: Alexandra Curran (link is to attorney's bio)

Board of Veterans Appeals Veterans Law JudgeMatthew W. Blackwelder (link is to our results with appeals of BVA Judge)

Vets’ Rep at BVA: Carol J. Ponton, Attorney (Law firm of Hill & Ponton)

Date of BVA Decision: June 13, 2019

Date of CAVC Joint Motion to Remand:   June 8, 2020

Link to BVA Decision

Link to Joint Motion to Remand

 

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