Citation Nr: 9826856 Decision Date: 09/08/98 Archive Date: 09/17/98 DOCKET NO. 97-26 271 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an effective date prior to July 31, 1996, for the grant of service connection for migraine headaches. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD L.A. Howell, Associate Counsel INTRODUCTION The veteran served on active duty from March 1984 to July 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which granted entitlement to service connection for migraine headaches, effective July 31, 1996. The veteran challenges the effective date of the award. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that she is entitled to service connection effective March 1, 1995, the date she filed her original claim. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1998), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence supports assignment of an earlier effective date of July 16, 1994, for the award of service connection for migraine headaches. FINDINGS OF FACT 1. The RO has developed all evidence necessary for an equitable disposition of the veteran’s claim. 2. The veteran was discharged from active duty service on July 15, 1994. 3. The veteran submitted her claim for migraine headaches in March 1995, within one year after service separation. The claim was denied, she sought “reconsideration” of the claim, essentially disagreeing in a timely manner with that rating. 4. Entitlement to service connection was initially denied but subsequently granted by rating decision dated in May 1997 under the provisions of 38 C.F.R. § 3.105(b) (1997) – Revision of Decisions, Difference of Opinion. CONCLUSION OF LAW The criteria for an effective date of July 16, 1994, for the grant of service connection for migraine headaches have been met. 38 U.S.C.A. § 5107, 5110 (West 1991 & Supp. 1998); 38 C.F.R. § 3.400 (1997). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1997); that is, she has presented a claim that is plausible. Further, she has not alleged nor does the evidence show that any records of probative value, which could be associated with the claims folder and that have not already been sought, are available. The Board accordingly finds that the duty to assist the veteran, as mandated by § 5107(a), has been satisfied. The effective date of an award based on an original claim for compensation will be the day following separation from active service or date entitlement arose if claim is received within one year after separation from service; otherwise, the effective date will be the date of receipt of claim, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2) (1997). If there is a difference of opinion and the decision was not final prior to receipt of an application for reconsideration or to reopen, or prior to reconsideration on VA initiative, the effective date is the date from which benefits would have been payable if the former decision had been favorable. 38 C.F.R. § 3.400(h)(1) (1997). On the other hand, as to decisions which had become final prior to receipt of an application for reconsideration or to reopen, the date of receipt of such application or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(h)(2) (1997). The record reveals that the veteran initially filed a claim for migraine headaches in March 1995, within one year of service separation. That claim was denied by rating decision dated in August 1995 on the basis that it was not well grounded. She was given notice of the rating decision by letter dated in September 1995 and she had one year from the date of the mailing of the notice of the determination to file a notice of disagreement, that is, until September 1996. Otherwise, the decision would become final. 38 C.F.R. § 20.302 (1997). On July 31, 1996, prior to the expiration of the one year period, the veteran asked for a reconsideration of the August 1995 rating decision and submitted additional medical evidence in support of her claim. Apparently the RO considered this a new claim and again denied entitlement to service connection for migraine headaches by rating decision dated in October 1996. She filed a notice of disagreement in December 1996 and a statement of the case was issued in January 1997 indicating that new and material evidence had not been submitted to reopen the claim. The statement of the case also indicated, erroneously in the Board’s view, that the August 1995 rating action had become final. Specifically, the Board finds that the July 31, 1996, correspondence from the veteran, filed well within the one year statutory period, was a notice of disagreement to the August 1995 rating action and the March 1995 claim was, in fact, still active. Subsequently, by rating decision dated in May 1997, the RO granted entitlement to service connection for migraine headaches under the provisions of 38 C.F.R. § 3.105(b) (1997), and a 10 percent evaluation was assigned effective July 31, 1996. Specifically, § 3.105(b) provides that whenever an adjudicative agency is of the opinion that a revision or an amendment of a previous decision is warranted, a difference of opinion being involved rather than clear and unmistakable error, the proposed revision will be recommended to Central Office. 38 C.F.R. § 3.105(b) (1997). Having determined that the initial claim for migraine headaches (filed in March 1995) was still active at the time of the grant of service connection in May 1997, the effective date of the grant of service connection under 38 C.F.R. § 3.105(b) can be determined under 38 C.F.R. § 3.400(h). Specifically, as noted above, if there is a difference of opinion (under 38 C.F.R. § 3.105) and the decision was not final prior to receipt of an application for reconsideration or to reopen, or prior to reconsideration of VA initiative, the effective date is the date from which benefits would have been payable if the former decision had been favorable. 38 C.F.R. § 3.400(h)(1) (1997). This is precisely the situation here. The August 1995 decision was not yet final prior to receipt of the veteran’s July 1996 correspondence indicating a disagreement with the August 1995 rating action. As a result of her July 1996 correspondence, the claim for entitlement to service connection for migraine headaches was subsequently granted under 38 C.F.R. § 3.105(b). Thus, the effective date should be the date from which the benefits would have been payable if the former decision had been favorable. The Board finds that the date the benefits would have been payable had the original decision been favorable is the day after service separation, that is, July 16, 1994. Specifically, the veteran filed her original claim for migraine headaches in March 1995, within one year from the time of service separation. As noted, the effective date of the grant of disability compensation (service connection) is the day following separation from active service or date entitlement arose if the claim is received within one year after separation from service. Since the RO eventually determined that migraine headaches were present during service and post-service records showed recurrent symptoms, the Board finds that entitlement to service connection arose on the day following service separation and an effective date of July 16, 1994, is warranted. ORDER An earlier effective date of July 16, 1994, for the grant of service connection for migraine headaches is granted subject to the law and regulations governing the award of monetary benefits. MICHAEL D. LYON Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1998), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -