Citation Nr: 1002137	
Decision Date: 01/13/10    Archive Date: 01/22/10

DOCKET NO.  08-16 302A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. 
Petersburg, Florida


THE ISSUES

1.  Entitlement to an evaluation in excess of 10 percent for 
headaches, on appeal from an initial grant of service 
connection.

2.  Entitlement to an effective date earlier than October 15, 
2001, for the granting of service connection for headaches.  


ATTORNEY FOR THE BOARD

Patrick J. Costello, Counsel


INTRODUCTION

The appellant served on active duty from July 1980 to June 
1983, and from June 1984 to September 1992, to include 
service in the Southwest Asia theatre-of-operations from 
January to April 1991.  

This case comes before the Board of Veterans' Appeals (Board) 
on appeal from a September 2007 rating decision of the 
Department of Veterans Affairs (VA), Regional Office (RO), 
located in St. Petersburg, Florida, that implemented the 
Board's May 2007 determination that service connection was 
warranted and assigned  10 percent rating, effective October 
15, 2001.  The appellant challenges the effective date of 
service connection and the quantum of the award assigned.

The higher rating issue is addressed in the REMAND portion of 
the decision below and it is REMANDED to the RO via the 
Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  Service connection for headaches was originally denied by 
a rating decision issued on November 20, 1997.  The appellant 
was notified of that decision but did not appeal that action.  
Hence, it became final.  

2.  The appellant did not submit a claim, either formal or 
informal, asking that his claim for entitlement to service 
connection for headaches be reopened until October 15, 2001.  


CONCLUSION OF LAW

Entitlement to an effective date prior to October 15, 2001, 
for the granting of service connection for headaches, is not 
warranted.  38 U.S.C.A. §§ 5101, 5110, 7104 (West 2002); 38 
C.F.R. §§ 3.1(p), 3.400 (2009).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

This claim arises from the appellant's disagreement with the 
effective date that has been assigned following the granting 
of service connection for a headache disability.  Per the 
claims folder, the appellant contends that he began suffering 
from headaches while he was in service and as such, he 
believes that the effective date for the grant of service 
connection should be the day after he discharged.  
Alternatively, he contends that the effective date should 
extend from 1997, when he originally submitted his claim for 
benefits.  

Once service connection has been granted, the claim has been 
substantiated, and additional notice is not required because 
any defect in the notice is not prejudicial.  Hartman v. 
Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  Further, because 
the application of the law to the undisputed facts is 
dispositive of this appeal, no discussion of VA's duties to 
notify and assist is necessary.  See Mason v. Principi, 16 
Vet. App. 129 (2002).

The record shows that following the appellant's discharge 
from service, he filed a claim of service connection for 
headaches in August 1994, which was denied by the RO in a 
November 1997 rating decision.  The appellant received 
notification of that decision in a letter from the RO in 
December 1997.  In that letter, the appellant was 
specifically informed that if he disagreed with the outcome 
of the November 1997 action that he should contact the RO and 
tell the RO why he disagreed with the denial of benefits.  
The record indicates that the appellant did not contact the 
RO - he did not appeal.  Hence, that decision became final.

In October 2001, the appellant requested that his service 
connection claim be reopened.  The claim was originally 
denied by the RO and the appellant appealed to the Board for 
review.  In a May 2007, the Board reopened the appellant's 
claim and then granted service connection.  The claim was 
returned to the RO which, in turn, awarded a disability 
rating and assigned an effective date.  The effective date of 
the grant was determined to be the original date of the claim 
to reopen, or October 15, 2001.  The determination of this 
date was based on 38 C.F.R. § 3.400(q)(2) and 38 C.F.R. 
§ 3.156 (2009).

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.  38 
U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2009).  
The effective date of an award of disability compensation 
shall be the day following separation from service or the 
date entitlement arose if the claim is received within one 
year of separation, otherwise the date of claim or the date 
entitlement arose, whichever is later.  38 U.S.C.A. § 5110(b) 
(West 2002); 38 C.F.R. § 3.400(b)(2) (2009).

The first date of any evidence added to the claims file, in 
this case, the appellant's correspondence, was October 15, 
2001.  An effective date retroactive to the initial filing of 
the claim was not warranted because the United States Court 
of Appeals for Veterans Claims (Court) has held that the rule 
of finality regarding an original claim implies that the date 
of that claim is not to be a factor in determining an 
effective date if the claim is later reopened.  The Court 
held that the term "new claim," as it appears in 38 C.F.R. 
§ 3.400(q)(1)(ii) (2009), means a claim to reopen a 
previously and finally denied claim.  See Sears v. Principi, 
16 Vet. App. 244, (2002); see also Livesay v. Principi, 15 
Vet. App. 165, 172 (2001) (holding that the plain meaning of 
§ 5110 to be that "the phrase 'application therefore' means 
the application which resulted in the award of disability 
compensation that it to be assigned an effective dated under 
section 5110."); Cook v. Principi, 258 F.3d 1311, 1314 (Fed. 
Cir. 2001) (affirming assignment of an effective date for a 
service-connection award based upon the reopened claim as the 
date on which the service member (or the appellant) "first 
sought to reopen his claim".

Further, in Rudd v. Nicholson, 20 Vet. App. 296 (2006), the 
Court stated that a claimant can attempt to overcome the 
finality of a decision which assigns an effective date in one 
of two ways, by a request for revision of those regional 
office decisions based on clear and unmistakable error (CUE), 
or by a claim to reopen based upon new and material evidence.  
See Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002) 
(en banc); see also 38 U.S.C.A. § 5109A(a) (West 2002) ("A 
decision by the Secretary . . . is subject to revision on the 
grounds of clear and unmistakable error.  If evidence 
establishes the error, the prior decision shall be reversed 
or revised."); 38 U.S.C.A. § 5108 (West 2002) ("If new and 
material evidence is presented or secured with respect to a 
claim which has been disallowed, the Secretary shall reopen 
the claim and review the former disposition of the claim."); 
Andrews v. Nicholson, 421 F.3d 1278, 1281 (Fed. Cir. 2005).

Because the proper effective date for an award based on a 
claim to reopen can be no earlier than the date on which that 
claim was received, 38 U.S.C.A. § 5110(a) (West 2002), only a 
request for revision premised on CUE could result in the 
assignment of an earlier effective date.  See Leonard v. 
Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005) ("[A]bsent a 
showing of [clear and unmistakable error, the appellant] 
cannot receive disability payments for a time frame earlier 
than the application date of his claim to reopen, even with 
new evidence supporting an earlier disability date."); Flash 
v. Brown, 8 Vet. App. 332, 340 (1995) ("When a claim to 
reopen is successful and the benefit sought is awarded upon 
readjudication, the effective date is the date of the claim 
to reopen."); see also Bingham v. Principi, 18 Vet. App. 
470, 475 (2004).

The claimant in this case sought an effective date prior to 
the date of her claim to reopen (October 15, 2001), but he 
did not claim CUE.  Thus, the assigned effective date was the 
first possible date of the claim to reopen, October 15, 2001.  
The claim is, therefore, denied.  Although it is sympathetic 
to the appellant's claim, the Board is without authority to 
grant the claim on an equitable basis and instead is 
constrained to follow the specific provisions of law.  See 38 
U.S.C.A. § 7104 (West 2002); Harvey v. Brown, 6 Vet. App. 
416, 425 (1994).


ORDER

An effective date of service connection for headaches prior 
to October 15, 2001, is denied.


REMAND

The appellant has averred that since last being seen by VA 
medical personnel in November 2006, his service-connected 
headache disability had become more severe.  Pursuant to VA's 
duty to assist, VA will provide a medical examination or 
obtain a medical opinion based upon a review of the evidence 
of record if VA determines it is necessary to decide the 
claim.  38 C.F.R. § 3.159(c)(4)(i) (2009).  Where a claimant 
asserts that the disability in question has increased in 
severity since the most recent rating examination, an 
additional examination is appropriate.  See VAOPGCPREC 11-95 
(1995); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997).  The 
Board therefore finds that a comprehensive VA examination is 
necessary to address the current level of the appellant's 
headache disorder.  

Thus, the case is REMANDED to the RO for the following 
development:

1.  The RO should contact the appellant 
and ask that he identify all sources of 
medical treatment received since January 
2006 for his service-connected headache 
disability, and to furnish signed 
authorizations for release to the VA of 
private medical records in connection 
with each non-VA source identified.  
Copies of the medical records from all 
sources, including VA records, (not 
already in the claims folder) should then 
be requested.  All records obtained 
should be added to the claims folder.  If 
requests for any private treatment 
records are not successful, the RO should 
inform the appellant of the nonresponse 
so that he will have an opportunity to 
obtain and submit the records himself, in 
keeping with his responsibility to submit 
evidence in support of his claim.  38 
C.F.R. § 3.159 (2009).

2.  The appellant should be afforded an 
appropriate VA examination to assess the 
frequency and severity of his headache 
disability.  The claims folder must be 
made available and reviewed by the 
examiner.  All appropriate tests should 
be conducted.

The examiner must proffer an opinion as 
to the specific extent and severity of 
the appellant's headaches, to include a 
complete and detailed discussion of all 
functional limitations associated with 
the disorder.  This should include a 
discussion of the extent, frequency, 
severity, and duration of the complained 
thereof headaches.  Also included should 
be a discussion as to whether the 
headaches are prostrating in nature or 
whether ordinary activity is possible; 
and whether the headaches result in 
severe economic inadaptability.

All findings and conclusions should be 
set forth in a legible report.

Then the RO should readjudicate the claim.  If the benefits 
sought on appeal remain denied, the appellant should be 
provided a supplemental statement of the case (SSOC).  The 
SSOC must contain notice of all relevant actions taken on the 
claim for benefits, to include a summary of the evidence and 
applicable law and regulations considered pertinent to the 
issue currently on appeal.  An appropriate period of time 
should be allowed for response.  Thereafter, the case should 
be returned to the Board, if in order.  The Board intimates 
no opinion as to the ultimate outcome of this case.  The 
appellant need take no action unless otherwise notified.

The appellant has the right to submit additional evidence and 
argument on the matter or 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. 2009).


______________________________________________
STEVEN D. REISS
Acting Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs