Citation Nr: 0811311 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 03-03 090A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an initial evaluation in excess of 20 percent for fibromyalgia. 2. Entitlement to an effective date earlier than March 1, 2002 for the assignment of service connection for fibromyalgia. 3. Entitlement to an effective date earlier than October 25, 2001 for the assignment of service connection for post- traumatic stress disorder (PTSD). 4. Entitlement to service connection for tension headaches (claimed as due to undiagnosed illness). REPRESENTATION Appellant represented by: Jill Mitchell, Attorney ATTORNEY FOR THE BOARD S. Richmond, Associate Counsel INTRODUCTION The veteran had active military service from April 1986 to October 1991. This matter comes to the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The RO granted service connection for PTSD in May 2002 assigning a 50 percent evaluation effective October 25, 2001. The RO granted service connection for fibromyalgia assigning a 10 percent rating effective July 14, 2002 and denied service connection for tension headaches in May 2004. This case has been remanded twice by the Board. In May 2005, the Board remanded the issue of an earlier effective date for the grant of service connection for PTSD for a Board hearing, and the issues of service connection for tension headaches, an earlier effective date for the grant of service connection for fibromyalgia, and an initial rating greater than 10 percent for fibromyalgia for the issuance of a statement of the case. The veteran withdrew his request for a hearing in February 2006; and a statement of the case was issued for all issues except the claim for an earlier effective date for the grant of service connection for fibromyalgia. The Board remanded the issues of service connection for tension headaches for a VA examination, and an earlier effective date for the grant of service connection for PTSD for RO adjudication in July 2007. The requested development with respect to those issues was accomplished. The RO granted an increased rating of 20 percent for fibromyalgia in November 2007, effective March 1, 2002. The veteran has not indicated that he is satisfied with this rating. Thus, this claim is still before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The issues of service connection for tension headaches, an initial rating higher than 20 percent for fibromyalgia, and entitlement to an effective date earlier than March 1, 2002 for the grant of service connection for fibromyalgia are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Resolving all doubt, the veteran's original service connection claim for PTSD was received at the RO on September 24, 1998 and no earlier. CONCLUSION OF LAW The criteria for an effective date of September 24, 1998, but no earlier, for a grant of service connection for PTSD are met. 38 U.S.C.A. §§ 5103, 5103A, 5110 (West 2002 and Supp. 2007); 38 C.F.R. §§ 3.102, 3.151(a), 3.155, 3.157, 3.400 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). VA must request that the claimant provide any evidence in the claimant's possession that pertains to a claim. 38 C.F.R. § 3.159. The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant with notice in April 2006 and August 2007, subsequent to the initial adjudication. While the notice was not provided prior to the initial adjudication, the claimant has had the opportunity to submit additional argument and evidence, and to meaningfully participate in the adjudication process. The claim was subsequently readjudicated in a November 2007 supplemental statement of the case, following the provision of notice. The veteran has not alleged any prejudice as a result of the untimely notification, nor has any been shown. The notification substantially complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004), requesting the claimant to provide evidence in his possession that pertains to the claim. VA has obtained service medical records, assisted the veteran in obtaining evidence, afforded the veteran physical examinations, and obtained medical opinions as to the etiology and severity of disabilities. All known and available records relevant to the issues on appeal have been obtained and associated with the veteran's claims file; and the veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the veteran is not prejudiced by a decision on the claim at this time. Analysis The RO granted service connection for PTSD with major depressive disorder in May 2002 assigning an effective date of October 25, 2001. The veteran contends that the effective date should be on September 9, 1998 because this is the date he originally filed his claim. The statutory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C.A. § 5110. In cases involving claims for direct service connection, the effective date will be the day following separation from active service or date entitlement arose if the claim is received within one year after separation from service. Otherwise, the effective date will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2). "Date of receipt" generally means the date on which a claim, information or evidence was received by VA. 38 C.F.R. § 3.1(r). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The veteran left active duty service in October 1991 and did not file a claim within one year of his discharge. Thus, the effective date cannot be the date of discharge from service. On September 24, 1998, VA received a claim for benefits that was dated on September 9, 1998. The diseases or injuries claimed included night sweats, memory loss, and trouble sleeping. The RO adjudicated and denied a service connection claim for major depression with chronic pain in January 2000. In March 2000, the veteran submitted a statement, which the RO used as a notice of disagreement with the January 2000 rating decision, asserting that the chemicals he was exposed to in service had psychological effects. The veteran's mother also submitted a statement asserting that the veteran's problems with concentration, memory lapses, nightsweats, and nightmares were directly related to unknown exposure to military-issued medications and chemicals used during the war. On October 25, 2001, the veteran submitted a statement that he was claiming that his mental problems were caused by anti-nerve agents in service. VA medical records dated from 1999 to 2001 show findings of major depressive disorder, PTSD-like symptoms, and probable PTSD. The RO provided a VA examination in November 2001 to determine whether the veteran had a mental illness related to his service. The examiner diagnosed the veteran with major depressive disorder and PTSD, secondary to traumatic events in service during Desert Storm. The RO granted service connection for PTSD with major depressive disorder in May 2002 and assigned an effective date of October 25, 2001, based on the date VA received the statement the veteran was claiming a mental health problem related to his service. The effective date of October 25, 2001 for the assignment of service connection for PTSD is rather arbitrary, seeing as in March 2000 the veteran essentially made the same assertion of a psychological defect related to his service. Also, the veteran has claimed the same symptoms since his original claim in September 1998; i.e., night sweats, memory loss, and poor sleep. Although at that time he more vaguely described his disability, the RO interpreted this as a psychological disability in the form of major depression. After the VA examination in November 2001 showed the veteran also had PTSD along with major depressive disorder that was related to the veteran's service, the psychological diagnosis was changed. However, the claim has remained more or less unchanged since the original service connection claim in 1998. Regulations state that the effective date will be either the date of the claim or the date entitlement arose, whichever is later. In this case, since the RO attempted to assign the date of claim as the effective date for service connection, fundamental fairness to the veteran requires that the effective date should be the date of his original claim on September 24, 1998. Resolving all doubt in the veteran's favor, an effective date of September 24, 1998, and no earlier, is assigned for service connection for PTSD. 38 C.F.R. § 3.102. Although the veteran contends the effective date should be on September 9, 1998, the date he signed his claim, the form was not received by VA until September 24, 1998. 38 C.F.R. § 3.1(r). ORDER Entitlement to an effective date of September 24, 1998, but no earlier, for the assignment of service connection for PTSD is granted, subject to the rules and payment of monetary benefits. REMAND In May 2005, the Board remanded the earlier effective date claim for the assignment of service connection for fibromyalgia for the issuance of a statement of the case. The RO readjudicated this claim in an October 2005 rating decision assigning an earlier effective date of March 1, 2002 (earlier than the previous effective date of July 14, 2002). This, however, did not satisfy this appeal, as the veteran had requested an effective date of September 9, 1998. The RO interpreted the veteran's representative's statement in May 2006 as a withdrawal of this claim. The representative noted that if the fact that the veteran filed a claim for fibromyalgia for symptoms such as muscle pain, joint pain, and back pain on September 9, 1998 did nothing to affect the earlier effective date claim for this condition, the veteran would take what he had been granted. While the representative's comment is a bit unclear, she did not specifically state that the appeal is withdrawn with respect to the earlier effective date issue for fibromyalgia, as required under 38 C.F.R. § 20.204(b). Also, in an October 2007 letter, the veteran's representative continued to make arguments in support of the earlier effective date claim for service connection for fibromyalgia and noted that they wanted this claim addressed. Therefore, the claim for an effective date earlier than March 1, 2002 for the assignment of service connection for fibromyalgia is still on appeal; and a statement of the case should be issued regarding this claim. See Manlincon v. West, 12 Vet. App. 238 (1999). The claim for an initial rating in excess of 20 percent for fibromyalgia is affected by the outcome of the issue of an earlier effective date for the grant of service connection for fibromyalgia. When a determination on one issue could have a significant impact on the outcome of another issue, such issues are considered inextricably intertwined and VA is required to decide those issues together. Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, the issue of an initial rating greater than 20 percent for fibromyalgia is deferred pending resolution of the effective date claim. The July 2007 Board remand directed the RO to provide a VA examination to determine whether the veteran's tension headaches were related to service, with a note that the veteran was already service-connected for migraine headaches. This was in error, however, as the veteran is not, in fact, service-connected for migraine headaches. An October 2007 VA examiner found that there was no evidence that there were any other types of headaches besides the migraine headaches; but the determinative issue is whether the veteran's headaches of any type are related to his service. The veteran should be provided another examination to resolve this matter. Accordingly, the case is REMANDED for the following action: 1. Schedule the veteran for an appropriate VA examination to determine the etiology of any current headaches. Specifically the examiner should state whether it is at least as likely as not that any present headaches suffered by the veteran are related to his service. The claims folder must be made available to the examiner for review in conjunction with the examination. The examiner must provide a detailed rationale for all medical opinions. 2. Any additional development deemed appropriate should be accomplished. The claims should then be readjudicated. If the claims remain denied, issue a supplemental statement of the case (SSOC) containing notice of all relevant actions taken on the claims, to include a summary of the evidence, and applicable law and regulations considered pertinent to the issues currently on appeal. An appropriate period of time should be allowed for response. Regarding the claim for an effective date earlier than March 1, 2002 for the grant of service connection for fibromyalgia, issue a statement of the case (SOC) to the veteran and his representative addressing this issue. The SOC should include all relevant law and regulations pertaining to the claim. The veteran must be advised of the time limit in which he may file a substantive appeal. See 38 C.F.R. § 20.302(b) (2006). Thereafter, if an appeal has been perfected, this issue should be returned to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. 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 Supp. 2007). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs