Migraines & Headaches at the VA

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 Elise Kalaski 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. Elise, why don't you tell us what a Migraine
Headache is? Elise: Sure.

So really generally, it's the type of headache
that usually is accompanied by other symptoms. So, it's not just head pain, 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? Elsie: 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 others you know, all kinds of other types of headaches.

Whether it be cluster headaches, tension headaches,
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 just the specific headaches, although it says specifically
migraines under the VA rating schedule. You'd mentioned something Mike. You've mentioned the concept of service connection. Do you want to explain to our viewers
what service connection is, generally? Mike: Sure, generally speaking, service
connection just means that the veterans 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. 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. In the context of headaches, I need to
show that, you know, they have a headache, maybe Elise probably discuss this in a second. Christian: Sure. 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: 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–its typically medical evidence, right, that's linking that in service blast
to your currently, you know, not diagnosed, but 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. Elise, do you want to talk a little bit about
sort of the diagnosis disability concept? Elise: Sure. Elise: 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? What, causes- Elise: Yes Christian: What causes disability under VA

Elise: 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 Elise 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 war 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 undiagnosed illness or what's called a MUCMIS, 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 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 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

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 Elise, you do need
that Nexus, right? Elise: Yes 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- Elise: Right. Christian: Could you maybe explain a little
bit how those C&P Exams would work? Elise: 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. Elise: 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- Elise: Correct. 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 Nexus to service, and you know, later we're going to talk about ratings. So why don't we just start there? Elise: 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 your 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 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. Christian: Okay Mike: So, what we can do in these instances
is oftentimes provide updated treatment records. We can provide updated you know, progress
notes. 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. 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: 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: 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. Christian: Okay Mike: VA probably wouldn't even reach the
merits to the underlying question of whether service connection is warranted.

And 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. Christian: Okay 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,
Mike, 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 Christian: Sure 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. It's a little complicated. But you know, for instance, we see this oftentimes
in the context of say, a neck condition.

Christian: Okay 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 veterans 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: You have a Service-Connected Disability
that causes the headaches, Mike: Yes Christian: That's one way to get secondary
connection. So, let's say Elise, that the service-connected
headaches disability causes something else, what happens then? Elise: Well, then you could if your service-connected
for that headache condition, you could get secondary service-connected for that second

But if you don't have –do you mean, if you're
if the condition, you're talking about a line, or– Christian: Like, let's say you have disability, Elise: Okay Christian: And it causes you to become depressed. Elise: Sure Christian: What would have a situation? Elise: 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? Elise: –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.

Christian: Absolutely Elise: 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 migraine headaches. These can be incredibly debilitating, incredibly
painful, and that can really be tough on one's gastrointestinal system. 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. 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, Christian: Sure 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.

Christian: Absolutely. Elise: 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
is prescribed. And it is based on something that service-connected,
the effects of that that condition can be compensated for. 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

Christian: 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 pyramiding, 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– Elise: 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 pyramiding 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 Elise'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 pyramiding, 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, Mike: Exactly Christian: At same time. Mike: Yep. 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, Elise? Elise: Yes. It is what we call a successive rating criteria. What that means is, if you think of it as
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
8100. 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.

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. 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- Elise: I do Christian: In front of you Mike? Mike: Sure Christian: Do you want to read the 50%? rating? And then Elise, do you want talk about maybe
what some of these words mean? Elise: Yes Mike: Sure. For a veteran to obtain the highest rating
under Diagnostic Code 8100, 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 of severe economic inadaptability." So that's kind of a mouthful. And as Elise was saying, the regulation doesn't
really go into defining the terms. In particular, if we were to look–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

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, Elise, about what prostrating means Elise: –prostrating means. 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. 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 Elise: 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. 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. 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 there's one more phrase in
the rating criteria, and it's good of a tongue twister. It's Severe Economic Inadaptability. 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. Christian: Okay. 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 inadaptability. What they really should be looking for is
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 maybe 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, Elise, the rating criteria says, "Productive
of Severe Economic Inadaptability." But that's not exactly what's required. Right? Elise: 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 inadaptability 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. 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 Inadaptability. 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, you 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. Christian: That's okay. I wanted to sort of tease out where you kind
of ended that bug which is about TDIU. Elise: Yes Christian: Mike, why don't you pick it up
from there. Mike: Sure Christian: But what happens if–so you have
severe–so your headaches are capable of producing severe economic inadaptability. 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. 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. If a veteran has a service-connected headache
condition, perhaps are being compensated the 50% rate already, Christian: Yes. 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

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. 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? Elise: 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 inadaptability is the fact that VA, at least
in their Board decisions, are supposed to be actually defining those things, and they're

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 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 examiner 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. Christian: Sure Mike: When considering how high their headaches
rating should be. Don't let the VA examiner downplay your symptoms,
just because you're seeking medication. Christian: Sure 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 adjudicating your case,
and oftentimes will see that they just solely side the case, based on whether the direct 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 really another
alternative basis to hopefully establish your claim. Christian: If VA 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 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 8100. Mike: Right, then the same doesn't necessarily
apply to things like hypertension, Christian: Sure Mike: Arguably psych. 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: Absolutely. Mike: Absolutely. Christian: I think we're getting pretty close
to wrapping up here. But we always like to sort of leave with some
parting thoughts. Elise, 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. Elise: Sure. So know, I 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". 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. 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. 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– Elise: If you don't show up Christian: If you don't show up for the examination. So that's something that's- Elise: 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: I just like to emphasize really the
importance of Lay Statements in the context of a headaches claim.

And 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 own–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. 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.

Has 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 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 Elise, 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. Sort of synthesizing what you were suggesting
or Mike was suggesting, don't be afraid to submit a Lay Statement in response to the

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? Elise: 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.

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, are they causing irritability? Because those are all things that could potentially
also be rateable. 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–what 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 Elise Kalaski and Michael Lostritto, and we were talking about Headaches. Hope to see you again soon..

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