Citation Nr: 0810278 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 05-03 539A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to an effective date earlier than July 22, 2003 for the assignment of a 30 percent disability rating for service-connected headaches. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States INTRODUCTION The veteran served on active duty from December 1980 to June 1998. Procedural history In an October 2001 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois granted the veteran's claim of entitlement to service connection for headaches. A noncompensable (zero percent) disability rating was assigned, effective July 16, 1998. The veteran did not appeal that decision. On June 22, 2003, the veteran filed a claim for an increased disability rating for his service-connected headaches. In the March 2004 rating decision which forms the basis for this appeal, the RO in St. Louis, Missouri granted a 30 percent rating, effective from July 22, 2003. The veteran disagreed with the effective date of the increased rating, and after the Chicago RO issued a statement of the case (SOC) in January 2005, the veteran perfected his appeal by filing a substantive appeal (VA form 9) in February 2005. Issues not on appeal In April 2004, the veteran filed a claim for an increased disability rating for his service-connected back disability. His claim was denied in a November 2004 RO rating decision, and he filed a notice of disagreement in December 2004. The Chicago RO issued a SOC in May 2006. To the Board's knowledge, the veteran did not file a substantive appeal as to that issue. Therefore the issue is not on appeal and will be discussed no further herein. See Archbold v. Brown, 9 Vet. App. 124, 130 (1996) [pursuant to 38 U.S.C.A. § 7105(a), the filing of a notice of disagreement initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a substantive appeal after a statement of the case is issued by VA]. In addition, the Chicago RO issued a rating decision in May 2006 which granted a temporary total rating for the period from October 20, 2005 through January 31, 2006 and also granted service connection for right lower extremity radiculopathy with an assigned rating of 20 percent effective April 30, 2004. In an August 2007 decision, the RO in Milwaukee, Wisconsin granted a temporary total rating from January 16, 2007 to March 1, 2007; granted a special monthly pension based on housebound status from October 20, 2005 to February 1, 2006 and from January 16, 2007 to March 1, 2007. To the Board's knowledge, the veteran did not disagree with any aspect of either decision. FINDINGS OF FACT 1. In an October 2001 rating decision, the RO granted service connection for headaches. A noncompensable disability rating was assigned. The veteran did not appeal. 2. On July 22, 2003, the veteran filed a claim of entitlement to an increased disability rating for his service-connected headaches. 3. In a March 2004 rating decision, an increased disability rating of 30 percent was granted for the service-connected headaches, effective July 22, 2003. 4. It was factually ascertainable as of July 22, 2002 that the frequency and severity of the veteran's service-connected headaches approximated that required for the assignment of a 30 percent disability rating. CONCLUSION OF LAW An effective date of July 22, 2002 is warranted for an increased disability rating of 30 percent for the veteran's service-connected headaches. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran seeks an effective date earlier than the currently assigned July 22, 2003 for the assignment of a 30 percent disability rating for his service-connected headaches. In the interest of clarity, the Board will first discuss certain preliminary matters. The Board will then render a decision. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). No VCAA notice is necessary in this case because, as is more thoroughly discussed below, the outcome of this earlier effective date claim depends exclusively on documents which are already contained in the veteran's VA claims folder. The United States Court of Appeals for Veterans Claims (the Court) held that a veteran claiming entitlement to an earlier effective date is not prejudiced by failure to provide him a VCAA notice of the laws and regulations governing effective dates, if, based on the facts of the case, entitlement to an earlier effective date is not shown as a matter of law. See generally Nelson v. Principi, 18 Vet. App. 407, 410 (2004). No additional development could alter the evidentiary posture of this case. In the absence of potential additional evidence, no notice is necessary. See DelaCruz v. Principi, 15 Vet. App. 143, 149 (2001) [VCAA notice not required where there is no reasonable possibility that additional development will aid the claimant]. The Board adds that the veteran has been accorded ample opportunity to present evidence and argument in support of his appeal. See 38 C.F.R. § 3.103 (2007). He has been ably represented by his service organization, which has filed written argument on his behalf. In his February 2005 VA Form 9, the veteran indicated that he did not desire a personal hearing Accordingly, the Board will move on to a decision. Relevant law and regulations Effective dates - in general Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2007). Effective dates - increased rating claims The effective date of an award of increased disability compensation is the earliest date that it is factually ascertainable that an increase in disability has occurred, if a claim is received within one year thereof. Otherwise, it is the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400(o)(1) (2007). Claims for VA benefits A "claim" is defined in the VA regulations as ". . . a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." See 38 U.S.C.A. § 101(30) (West 2002); 38 C.F.R. § 3.1(p) (2007). An informal claim is ". . . [a]ny communication or action indicating an intent to apply for one or more benefits." See 38 C.F.R. § 3.155(a) (2007). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. See 38 C.F.R. § 3.155 (2007). The date of receipt shall be the date on which a claim, information or evidence was received at VA. See 38 U.S.C.A. § 101(30) (West 2002); 38 C.F.R. § 3.1(r) (2007). Disability ratings - in general Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities. See 38 U.S.C.A. § 1155 (West 2002). Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4. Specific rating criteria The veteran's service-connected headaches have been diagnosed as migraine headaches. Under Diagnostic Code 8100, migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a 50 percent evaluation. Migraine headache disorders with characteristic prostrating attacks occurring on an average once a month warrants a 30 percent disability evaluation. A 10 percent evaluation requires characteristic prostrating attacks averaging one in two months over the last several months. Migraine headaches with less frequent attacks warrant a noncompensable disability rating. See 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2007). [The Board observes that these same criteria were in effect at all times hereinafter mentioned.] The rating criteria do not define "prostrating." The Board additionally observes that the Court has not undertaken to define "prostrating." Cf. Fenderson v. West, 12 Vet. App. 119 (1999), in which the Court quoted Diagnostic Code 8100 verbatim but did not specifically address the matter of what is a prostrating attack. According to Webster's New World Dictionary of American English, Third College Edition (1986), p. 1080, "prostration" is defined as "utter physical exhaustion or helplessness." Standard of review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2007). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis Factual background As was described in the Introduction, the veteran's initial claim of entitlement to service connection for headaches was granted in an October 2001 RO rating decision. A noncompensable (zero percent) disability rating was assigned, effective July 16, 1998. The veteran did not appeal that decision. On July 22, 2003, the veteran filed a claim for an increased disability rating for his service-connected headaches. In the March 2004 rating decision which forms the basis for this appeal, the RO in St. Louis, Missouri granted a 30 percent rating, effective from July 22, 2003. The veteran's contentions In a February 2008 VA Form 646, the veteran's accredited local representative, in essence, pointed to medical evidence in the record prior to July 22, 2003 which in her opinion supported the assignment of the 30 percent rating. In an informal hearing presentation dated March 14, 2008, the veteran's representative at the Board echoed those contentions, specifically referring to a July 2001 VA Compensation and Pension (C&P) examination which described the veteran's headaches as "significant". These statements, taken together, indicate that the veteran is contending that it was factually ascertainable that headache disability congruent with the assignment of a 30 percent rating existed prior to July 22, 2003. Discussion The Board's initial inquiry is to ascertain when the veteran filed his claim for an increased rating. It is undisputed that such a claim was filed on July 22, 2003. The applicable statutory and regulatory provisions require that VA look to all communications from the veteran which may be interpreted as applications or claims - formal and informal - for benefits. In particular, VA is required to identify and act on informal claims for benefits. See 38 C.F.R. §§ 3.1(p), 3.155(a) (2007); see also Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). The veteran and his representative have pointed to no specific claim for an increased rating, formal or informal, filed after the October 2001 rating decision granting service connection and before July 22, 2003. The Board has identified no such document. The veteran's representative mentioned a VA outpatient treatment record dated February 8, 2002 in which the veteran was seen for a complaint of headaches, as well as a December 2001 VA examination report, which mentioned a head injury. The representative did not indicate that she believed that either of these was an informal claim. In any event, these VA examination and treatment records cannot be considered to be informal claims for an increased rating because they do not reflect an intent on the part of the veteran to apply for an increased rating. An informal claim must identify the benefit sought; the mere reference in medical treatment records to that disability is not a claim. See 38 C.F.R. § 3.155 (2007); see also Dunson v. Brown, 4 Vet. App. 327, 330 (1993) [an informal claim must identify the benefit sought]; Ellington v. Nicholson, No. 04-0403 (U.S. Vet. App. July 25, 2007) [in the absence of a sufficient manifestation of an intent to apply for benefits for a particular disease or injury, a document providing medical information in and of itself is not an informal claim for VA benefits]. In short, the Bard finds that the date of the veteran's increased rating claim was July 22, 2003. The next question is whether it was factually ascertainable that an increase in disability took place in the one year period prior to that date. See 38 C.F.R. § 3.400(o). There are no pertinent medical records which cover the period from July 22, 2002 and July 22, 2003. As indicated above, the veteran through his representative is relying on earlier medical records, in the particular the report of the June 21, 2001 C&P examination. During that examination, the veteran complained of migraine headaches occurring approximately once per month, which lasted all day and that the only thing which helped him was lying down in a dark room. Diagnoses included "Migraine headaches, significant without functional impairment". [In the October 2001 rating decision which granted service connection and assigned a noncompensable rating, the RO chose to ignore the veteran's recent report of prostrating headaches once per month and instead relied upon earlier reports of les frequent headaches.] During an October 2003 VA examination, the veteran essentially repeated his descriptions of his headaches. That was the basis of the March 2004 increase in the assigned rating to 30 percent. After having carefully considered the matter, the Board believes that it was factually ascertainable that the veteran's service-connected headaches were 30 percent disabling as of July 22, 2002, one year before he filed his claim of entitlement to an increased rating on July 22, 2003. See 38 C.F.R. § 3.400(o) (2007). In so concluding, the Board has taken into consideration the C&P examination reports, which included the veteran's description of prostrating headaches approximately once a month. There is no evidence to the contrary. There is no evidence that a disability rating in excess of 30 percent was warranted during the one year period prior to July 22, 2003, and the veteran does not so contend. To some degree, the veteran appears to be raising an argument couched in equity in that he contends that his headaches were of sufficient severity to warrant the assignment of a higher rating prior to June 22, 2002 and so he should receive compensation from an even earlier date. However, the Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503, 7104 (West 2002); see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). As explained above, the Board has decided this case based on the law and regulations. Specifically, an effective date may not be granted earlier than June 22, 2002 under 38 C.F.R. § 3.400(o). In summary, for reasons and bases expressed above, the Board finds that an effective date of July 22, 2002 may be assigned for the 30 percent disability rating for the veteran's service-connected headaches. The appeal is allowed to that extent. ORDER An earlier effective date, July 22, 2002, is assigned for the increased disability rating of 30 percent for service- connected headaches. ____________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs