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Retro pay back to 2005, and remand question

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IraqVet

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The board in DC send me a decision that they upped my 50% PTSD from 50% to 70% going all the way back to 2005. They are also awarding me migranes, but I do not know the % yet, and also seizures, and they are making a decision on my TDUI. I am currently 70% combined before this decision. My question is the decision the board made was done back in April.....I still have recieved no backpay or notification on my new disabilities from the St Louis regional office. I do have a lawyer and they said that this is the new thing that the VA is doing to vets........sitting on the decisions, and turning the lawyers into debt collectors for the veterans. I have gotten awards in the past but it has never taken this long to process.......How long am I looking at to get my back pay and new disability %'s. I have been fighting them on this since 2005. 

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Depending on the severity of your migraines they can be rated from 0% to 50%. Here is an appeals case that was favorable for a veteran with migraines. Read through it and see if you meet the requirements for the appropriate rating provided in the case.
The longer the VA takes, the more money they are ;required by law; to compensate you in retro pay. So be patient.(I know it's easier said than done, I've been there too.)



Citation Nr: 1631068    
Decision Date: 08/04/16    Archive Date: 08/11/16

DOCKET NO.  10-44 146A    )    DATE
    )
    )

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUES

1. Entitlement to disability ratings for migraine headaches higher than 30 percent prior to September 3, 2015, and 50 percent from September 3, 2015, forward.

2. Entitlement to a total disability rating based on individual unemployability (TDIU) and special monthly compensation (SMC).


REPRESENTATION

Appellant represented by:    The American Legion


ATTORNEY FOR THE BOARD

K. J. Kunz, Counsel


INTRODUCTION

The Veteran had active service from May 1993 to September 1995.

This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions by the Oakland, California Regional Office (RO) of the United States Department of Veterans Affairs (VA). In a March 2007 rating decision, the RO continued a 30 percent disability rating for migraine headaches.

In May 2015, the Board remanded the case to the RO for the development of additional evidence. In a September 2015 rating decision, the RO increased the rating for migraine headaches to 50 percent, effective September 3, 2015.

In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of an increased rating claim when a TDIU claim is raised by the record in the increased rating claim. In a September 2015 VA medical examination, the examiner found that the effects of medications for the Veteran's migraine headaches and the frequency of migraines made her unable to work.  That finding raises a TDIU claim.  In a May 2016 informal hearing presentation, the Veteran's representative also raised the issue of entitlement to special monthly compensation.  See Bradley v. Peake, 22 Vet. App. 280 (2008).  The Board therefore has added these claims to the issues on appeal.

The issues of a TDIU and SMC are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDING OF FACT

Prior to September 3, 2015, the Veteran had prostrating migraine attacks that were so frequent and persistent as to produce severe economic inadaptability. 


CONCLUSION OF LAW

Prior to September 3, 2015, the Veteran's migraine headaches met the criteria for a 50 percent disability rating. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. Part 4, including §§ 4.1, 4.2., 2.7, 4.10, 4.124a, Diagnostic Code 8100 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

In July 2006, the Veteran submitted a claim for a disability rating higher than the existing 30 percent rating for her service-connected migraine headaches. In a March 2007 rating decision, the RO continued the 30 percent rating. The Veteran appealed that decision. In a September 2015 rating decision, the RO increased the rating for migraine headaches to 50 percent, effective September 3, 2015. The Veteran continued her appeal. She contends that impairment resulting from her migraines warrants ratings higher than 30 percent before September 3, 2015, and 50 percent from September 3, 2015.

VA assigns disability ratings by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.10. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. The Court has indicated that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating was filed until a final decision is made. See Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

The rating schedule provides criteria for evaluating migraine as follows:

With very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability
   ........................................................... 50 percent

With characteristic prostrating attacks occurring on an average once a month over last several months  .... 30 percent

With characteristic prostrating attacks averaging one in 2 months over last several months  ................... 10 percent

With less frequent attacks  .............................. 0 percent

38 C.F.R. § 4.124a, Diagnostic Code 8100.

Turning to the evidence, in private treatment in July and September 2006, ongoing chronic migraine was noted. The Veteran's headaches were described as infrequent, and sometimes lasting two days.

On VA examination in October 2006, the Veteran reported that during migraine attacks she had to stay in bed and was unable to do anything. She stated that the attacks lasted three days, and occurred on average eight times per month.

In an October 2006 statement, the Veteran wrote that in 2005 her headaches lasted one to three days and occurred ten to fifteen times per month. She stated that during headaches she stayed inside her house. She asserted that her headaches made her unable to function, and made employment out of the question. She indicated that more recently she had experienced five to eight headaches per month. She reported that she had lost her driver's license and did not work.

In private treatment in January 2007, the Veteran reported having migraines about eight days a month, with about five of those severe and disabling.  In private treatment in May 2007, the Veteran reported having about six migraines per month. 

In June 2007, the Veteran's husband wrote that the Veteran had five to eight migraines a month, many requiring eighteen to twenty hours in bed in dark and quiet conditions. Two of the Veteran's daughters wrote that the Veteran had headaches many times per week, and had to spend a great deal of time lying down.

In private treatment in December 2007 and April 2008, the Veteran reported having headaches about every ten days. In July 2008, she reported intermittent migraine headaches. In September 2008, she reported a severe headache that lasted three to four days. In ongoing treatment of the Veteran for migraines in 2010, the treating physician adjusted medications. In June 2010, the Veteran reported having very severe headaches five to eight times a month.

In a November 2010 statement, the Veteran wrote that the severity, frequency, and duration of her headaches caused an economic burden.

In private treatment in January 2011, the Veteran reported headaches that lasted one to three days and occurred at least fifteen times per month. In February 2011, her headaches were described as chronic and daily. In July 2011, she was seen during a headache that had been present for three days. In August 2012, she reported headaches that required lying down up to three times per week. 

On VA examination in July 2013, the Veteran reported having headaches that lasted two to three days and occurred about fifteen times a month.

In private treatment in September 2013, the Veteran reported having had fourteen headaches in the preceding month.

In April 2014, a physician indicated that, because of the Veteran's migraines, work as a postal carrier would put her at high risk of vision loss. In private treatment in July 2014, the Veteran reported no change in her headaches.

In a July 2014 statement, the Veteran wrote that she had headaches that lasted one to three days and occurred at least fifteen times per month. She stated that during headaches she had to stay still in a dark and quiet place. She stated that she could not look at a computer screen for more than fifteen minutes at a time. She reported that she was released from her last job because of her limitations due to headaches. She asserted that those limitations would prevent her from securing employment.


On VA examination in September 2015, the Veteran reported having migraine headaches nearly every other day. She indicated that the head pain typically lasted less than one day. The examiner found that the Veteran had very prostrating and prolonged migraine attacks productive of severe economic inadaptability. The examiner stated that the Veteran was unable to work due to the extent of medications as well as the frequency of migraine attacks.

In a June 2016 statement, the Veteran wrote that she had no less than 12 to 15 headaches a month that were intense and kept her at home and in her room.  

In private treatment in 2015 and 2016, the Veteran reported ongoing migraines with no significant changes in intensity and severity.  Pertinent diagnoses included chronic migraine without aura, intractable, with status migrainosus.

The Veteran's statements and medical records indicate that she had migraine attacks that were prostrating, prolonged, much more frequent than once a month, and so frequent and persistent as to produce severe economic inadaptability. Accordingly, the manifestations and effects of her migraine headaches met the criteria for a 50 percent rating. The Board therefore grants a 50 percent rating prior to September 3, 2015.  A 50 percent rating is the maximum rating available under DC 8100.  Accordingly, the claim has been granted in full.


ORDER

Entitlement to a 50 percent disability rating for migraine headaches for the appellate period prior to September 3, 2015, is granted, subject to the laws and regulations controlling the disbursement of monetary benefits.


REMAND

Unfortunately, a remand is also required in this case.  Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that she is afforded every possible consideration.  Appropriate development should be completed, as set forth below.

Accordingly, the case is REMANDED for the following action:

1.  Send the Veteran a VCAA letter concerning the issues of entitlement to a total disability rating based on individual unemployability and entitlement to special monthly compensation.  She should be provided with and asked to complete and return a VA Form 21-8940.  She should also be asked to clarify her contentions concerning the claim for special monthly compensation.  

2.  Obtain the Veteran's updated VA treatment records.

3.  Next, schedule the Veteran for an appropriate VA examinations to evaluate the issues of entitlement to a TDIU and SMC.  

4.  Finally, readjudicate the claims on appeal.  If the benefits sought on appeal remain denied, the Veteran and her representative should be provided a supplemental statement of the case (SSOC).  A reasonable period of time should be allowed for response before the appeal is returned to the Board.  

The Board intimates no opinion as to the ultimate outcome of the remanded matter. The Veteran has the right to submit additional evidence and argument on that matter. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




______________________________________________
P.M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


Edited by doc25
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Since you received a remand, that is a list of instructions the board is telling the VA and the veteran to do. It's not a denial, so it's always a good thing. It's still going to delay the process, but like I mentioned before, the longer it takes the more $$$ will be in your pocket. When you see lump sums of $15k or more, it'll be worth the wait. Best wishes on your claim.

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On 11/5/2018 at 6:32 PM, doc25 said:

Depending on the severity of your migraines they can be rated from 0% to 50%. Here is an appeals case that was favorable for a veteran with migraines. Read through it and see if you meet the requirements for the appropriate rating provided in the case.
The longer the VA takes, the more money they are ;required by law; to compensate you in retro pay. So be patient.(I know it's easier said than done, I've been there too.)



Citation Nr: 1631068    
Decision Date: 08/04/16    Archive Date: 08/11/16

DOCKET NO.  10-44 146A    )    DATE
    )
    )

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUES

1. Entitlement to disability ratings for migraine headaches higher than 30 percent prior to September 3, 2015, and 50 percent from September 3, 2015, forward.

2. Entitlement to a total disability rating based on individual unemployability (TDIU) and special monthly compensation (SMC).


REPRESENTATION

Appellant represented by:    The American Legion


ATTORNEY FOR THE BOARD

K. J. Kunz, Counsel


INTRODUCTION

The Veteran had active service from May 1993 to September 1995.

This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions by the Oakland, California Regional Office (RO) of the United States Department of Veterans Affairs (VA). In a March 2007 rating decision, the RO continued a 30 percent disability rating for migraine headaches.

In May 2015, the Board remanded the case to the RO for the development of additional evidence. In a September 2015 rating decision, the RO increased the rating for migraine headaches to 50 percent, effective September 3, 2015.

In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of an increased rating claim when a TDIU claim is raised by the record in the increased rating claim. In a September 2015 VA medical examination, the examiner found that the effects of medications for the Veteran's migraine headaches and the frequency of migraines made her unable to work.  That finding raises a TDIU claim.  In a May 2016 informal hearing presentation, the Veteran's representative also raised the issue of entitlement to special monthly compensation.  See Bradley v. Peake, 22 Vet. App. 280 (2008).  The Board therefore has added these claims to the issues on appeal.

The issues of a TDIU and SMC are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDING OF FACT

Prior to September 3, 2015, the Veteran had prostrating migraine attacks that were so frequent and persistent as to produce severe economic inadaptability. 


CONCLUSION OF LAW

Prior to September 3, 2015, the Veteran's migraine headaches met the criteria for a 50 percent disability rating. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. Part 4, including §§ 4.1, 4.2., 2.7, 4.10, 4.124a, Diagnostic Code 8100 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

In July 2006, the Veteran submitted a claim for a disability rating higher than the existing 30 percent rating for her service-connected migraine headaches. In a March 2007 rating decision, the RO continued the 30 percent rating. The Veteran appealed that decision. In a September 2015 rating decision, the RO increased the rating for migraine headaches to 50 percent, effective September 3, 2015. The Veteran continued her appeal. She contends that impairment resulting from her migraines warrants ratings higher than 30 percent before September 3, 2015, and 50 percent from September 3, 2015.

VA assigns disability ratings by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.10. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. The Court has indicated that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating was filed until a final decision is made. See Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

The rating schedule provides criteria for evaluating migraine as follows:

With very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability
   ........................................................... 50 percent

With characteristic prostrating attacks occurring on an average once a month over last several months  .... 30 percent

With characteristic prostrating attacks averaging one in 2 months over last several months  ................... 10 percent

With less frequent attacks  .............................. 0 percent

38 C.F.R. § 4.124a, Diagnostic Code 8100.

Turning to the evidence, in private treatment in July and September 2006, ongoing chronic migraine was noted. The Veteran's headaches were described as infrequent, and sometimes lasting two days.

On VA examination in October 2006, the Veteran reported that during migraine attacks she had to stay in bed and was unable to do anything. She stated that the attacks lasted three days, and occurred on average eight times per month.

In an October 2006 statement, the Veteran wrote that in 2005 her headaches lasted one to three days and occurred ten to fifteen times per month. She stated that during headaches she stayed inside her house. She asserted that her headaches made her unable to function, and made employment out of the question. She indicated that more recently she had experienced five to eight headaches per month. She reported that she had lost her driver's license and did not work.

In private treatment in January 2007, the Veteran reported having migraines about eight days a month, with about five of those severe and disabling.  In private treatment in May 2007, the Veteran reported having about six migraines per month. 

In June 2007, the Veteran's husband wrote that the Veteran had five to eight migraines a month, many requiring eighteen to twenty hours in bed in dark and quiet conditions. Two of the Veteran's daughters wrote that the Veteran had headaches many times per week, and had to spend a great deal of time lying down.

In private treatment in December 2007 and April 2008, the Veteran reported having headaches about every ten days. In July 2008, she reported intermittent migraine headaches. In September 2008, she reported a severe headache that lasted three to four days. In ongoing treatment of the Veteran for migraines in 2010, the treating physician adjusted medications. In June 2010, the Veteran reported having very severe headaches five to eight times a month.

In a November 2010 statement, the Veteran wrote that the severity, frequency, and duration of her headaches caused an economic burden.

In private treatment in January 2011, the Veteran reported headaches that lasted one to three days and occurred at least fifteen times per month. In February 2011, her headaches were described as chronic and daily. In July 2011, she was seen during a headache that had been present for three days. In August 2012, she reported headaches that required lying down up to three times per week. 

On VA examination in July 2013, the Veteran reported having headaches that lasted two to three days and occurred about fifteen times a month.

In private treatment in September 2013, the Veteran reported having had fourteen headaches in the preceding month.

In April 2014, a physician indicated that, because of the Veteran's migraines, work as a postal carrier would put her at high risk of vision loss. In private treatment in July 2014, the Veteran reported no change in her headaches.

In a July 2014 statement, the Veteran wrote that she had headaches that lasted one to three days and occurred at least fifteen times per month. She stated that during headaches she had to stay still in a dark and quiet place. She stated that she could not look at a computer screen for more than fifteen minutes at a time. She reported that she was released from her last job because of her limitations due to headaches. She asserted that those limitations would prevent her from securing employment.


On VA examination in September 2015, the Veteran reported having migraine headaches nearly every other day. She indicated that the head pain typically lasted less than one day. The examiner found that the Veteran had very prostrating and prolonged migraine attacks productive of severe economic inadaptability. The examiner stated that the Veteran was unable to work due to the extent of medications as well as the frequency of migraine attacks.

In a June 2016 statement, the Veteran wrote that she had no less than 12 to 15 headaches a month that were intense and kept her at home and in her room.  

In private treatment in 2015 and 2016, the Veteran reported ongoing migraines with no significant changes in intensity and severity.  Pertinent diagnoses included chronic migraine without aura, intractable, with status migrainosus.

The Veteran's statements and medical records indicate that she had migraine attacks that were prostrating, prolonged, much more frequent than once a month, and so frequent and persistent as to produce severe economic inadaptability. Accordingly, the manifestations and effects of her migraine headaches met the criteria for a 50 percent rating. The Board therefore grants a 50 percent rating prior to September 3, 2015.  A 50 percent rating is the maximum rating available under DC 8100.  Accordingly, the claim has been granted in full.


ORDER

Entitlement to a 50 percent disability rating for migraine headaches for the appellate period prior to September 3, 2015, is granted, subject to the laws and regulations controlling the disbursement of monetary benefits.


REMAND

Unfortunately, a remand is also required in this case.  Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that she is afforded every possible consideration.  Appropriate development should be completed, as set forth below.

Accordingly, the case is REMANDED for the following action:

1.  Send the Veteran a VCAA letter concerning the issues of entitlement to a total disability rating based on individual unemployability and entitlement to special monthly compensation.  She should be provided with and asked to complete and return a VA Form 21-8940.  She should also be asked to clarify her contentions concerning the claim for special monthly compensation.  

2.  Obtain the Veteran's updated VA treatment records.

3.  Next, schedule the Veteran for an appropriate VA examinations to evaluate the issues of entitlement to a TDIU and SMC.  

4.  Finally, readjudicate the claims on appeal.  If the benefits sought on appeal remain denied, the Veteran and her representative should be provided a supplemental statement of the case (SSOC).  A reasonable period of time should be allowed for response before the appeal is returned to the Board.  

The Board intimates no opinion as to the ultimate outcome of the remanded matter. The Veteran has the right to submit additional evidence and argument on that matter. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




______________________________________________
P.M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


I read this case. I am currently rated at 30% for migraines on eBennies (just notified of the claim closed) and my situation is the same. Except, I get Botox every three months (copay $300) and a monthly injection (copay $5) sent to me that I must administer.  I don't know why I'm 30%.  Maybe, I need to send the VA more documentation.  What else can I do to increase my rating to TDIU?

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2 hours ago, Joyce Pinckney said:

I read this case. I am currently rated at 30% for migraines on eBennies (just notified of the claim closed) and my situation is the same. Except, I get Botox every three months (copay $300) and a monthly injection (copay $5) sent to me that I must administer.  I don't know why I'm 30%.  Maybe, I need to send the VA more documentation.  What else can I do to increase my rating to TDIU?

How many migraines do you experience per month that keeps you out of work? Have you lost jobs or lost promotion opportunities because of the migraines?

 I've provided the criteria for migraines towards the end of this post. Go over the medical evidence you have, see if it matches up with the 50% criteria, and send in the documentation that proves you're at 50% , otherwise if you don't meet the criteria, build up on medical evidence. If you do meet the criteria, by all means, appeal the 30%. If you don't meet the 50% criteria, build up to the medical evidence and request an increase from 30% to 50%. 

Are you service-connected for Depression? If you're not, Migraines can cause secondary Depression.

On your question about TDIU:

TDIU is one area of disability claims I'm not experienced with yet. For that I'll ask for Berta, Tbird, Broncovet, and any other forum member that has experience with TDIU claims to answer this question.

MIGRAINE HEADACHES:

With very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability
........................................................... 50 percent
With characteristic prostrating attacks occurring on an average once a month over last several months  .... 30 percent
With characteristic prostrating attacks averaging one in 2 months over last several months  ................... 10 percent
With less frequent attacks  .............................. 0 percent
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You can possibly increase your rating to 50% but getting TDIU for migraines is a bridge too far.  I lost my job due to migraines and the medication that I took but I was not awarded TDIU for that.  Sorry.

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