Migraines and VA service connected benefits
In my practice, I have found repeated mistakes when it comes to rating migraines correctly for VA service connected benefits. Migraines are difficult for the VA to assess because they are unseen. The VA is much better at rating disabilities that are easy to see—orthopedic problems, eye problems, diabetes, etc. But to properly assess the extent of the disabling effects that migraines have a person the VA must listen to the veteran. Unfortunately, I rarely see this happen.
There are four possible ratings for migraines. A zero percent rating is appropriate for migraines that are not prostrating or happen less frequently than every two months. A 10 percent rating is appropriate for migraines that produce a prostrating attack at least once every two months. A 30 percent rating is appropriate where a veteran has a prostrating attack occurring on an average once a month over the last several months. The final rating is a 50% rating for frequent completely prostrating and prolonged attacks that are ‘productive of severe economic inadaptability.’
There are a couple important notes about the way migraines are rated. First, is to understand the term prostrating. The term means to lay down or to reduce a person to extreme physical weakness. Essentially, the question is are the migraines severe enough to make the person lay down. If this is the case it is extremely important that the veteran lets the doctors know not only how frequently she is having migraines but how often the migraines are prostrating. In fact, the more descriptive you can be to your doctor the better. Often, I will read a veteran’s medical records about migraines and it will note that the veteran has a couple migraines a month. Then when I ask the veteran about it she will let me know that she might just have two a couple but whenever she has one she will have to lay down in a dark, silent room and that she will have to stay there for two days.
It is important to be as descriptive as possible because the VA is going to rate you based on not what you tell them but what is in your medical records. Of course, the description of your migraines in your medical records is what the doctor wrote down after asking you but the VA is more comfortable relying on what is printed in medical records than what a veteran tells the VA Benefits administration directly.
The other important note to take away is that the maximum rating for migraines is 50%. VA set up its rating schedule to match the severity of a disability with how much the disability impairs a veterans ability to work. The higher the rating the more the disability interferes with the veteran’s ability to work. By offering a 50% rating as the highest rating for migraines the VA implicitly is stating that migraines cannot completely impair one’s ability to work. I disagree with this notion.
I have represented multiple veterans who have weekly prostrating migraines. These veterans have to retreat to a dark room and cannot do any work for the whole day. When I asked a vocational expert about what it means for a person to miss one to two days a week of work the expert told me that, effectively, this person is unemployable because no standard work setting would allow a person to miss that much work.
So if you have migraines and, as a result, cannot work a 50% rating is not an adequate rating for you. You must insist that the VA rate you totally disabled due to individual unemployability (IU). Typically, IU ratings are reserved for individuals who are rated at least 70% and have demonstrated to the VA that they cannot work. Once again, a 70% rating is not a possible rating for a someone battling migraines. The VA’s own regulations state that the VA must consider an IU rating if the veteran has shown that she cannot work due to her VA service connected disability. Rarely, will the VA actually grant IU where the veteran does not meet the 70% threshold.
In these cases, I seek the opinion of vocational experts. These experts can look at the time lost and the functional loss resulting from the migraines and then show how the migraines prevent the veteran from working. With a vocational expert report I force the VA to consider the whether the migraines cause individual unemployability. Remember if your service connected disability prevents you from working then the VA should compensate you at the maximum rating.
