Citation Nr: 1136872 Decision Date: 09/30/11 Archive Date: 10/11/11 DOCKET NO. 08-00 647 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an effective date earlier than July 12, 2005 for the grant of a 50 percent disabling rating for service-connected migraine headaches. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The Veteran served on active duty from May to October 1990 and from April 1991 to January 2003. This matter comes before the Board of Veterans' Appeals (Board) from an April 2006 rating decision (issued in May 2006) from the Department of Veterans Affairs (VA) Regional Office (RO) above. In January 2011, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing. A transcript of the hearing is associated with the claims file. FINDINGS OF FACT 1. In a January 2003 decision, the RO granted service connection for migraine headaches, and assigned a 10 percent disability rating, effective January 18, 2003, the day following the Veteran's separation from active service. 2. The Veteran did not appeal the January 2003 rating decision and it became final. 3. On August 6, 2004, the Veteran filed an informal claim for an increased rating for service-connected migraine headaches. 5. In an April 2006 rating decision, the RO granted the claim for an increased rating for service-connected migraine headaches and assigned a 50 percent disability rating, effective July 12, 2005, the date the RO determined that the treatment records showed a definite increase in the Veteran's headaches. 6. As of August 5, 2003, during the year prior to August 6, 2004, the facts establish that a 50 percent disability rating was warranted for service-connected migraine headaches. CONCLUSION OF LAW The criteria for an effective date of August 5, 2003, but no earlier, for the award of a 50 percent rating for service-connected migraine headaches have been met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2010); 38 C.F.R. § 3.400, 4.124a, Diagnostic Code 8100 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection for migraine headaches was established in January 2003, and the RO assigned a 10 percent disability rating pursuant to 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100, effective January 18, 2003. In this context, the Board notes that the Veteran filed his claim seeking entitlement to VA benefits prior to discharge from service and, thus, the effective date for the grant of service connection for his claimed disabilities, including migraine headaches, was made effective from January 18, 2003, the day following separation from active service. See January 2003 rating decision; see also 38 C.F.R. § 3.400(b)(2)(i)(2010). In August 2004, the Veteran filed an informal claim seeking an increased rating for his service-connected migraine headache disability; however, the Veteran's claim was denied in a July 2005 rating decision, which continued the 10 percent disability rating assigned to the service-connected migraine headache disability. In August 2005, the Veteran filed another claim seeking an increased rating, including extraschedular consideration, for his service-connected migraine headache disability. In an April 2006 rating decision (issued in May 2006), the RO increased the Veteran's disability rating to 50 percent under DC 8100, effective July 12, 2005, the date the RO determined that treatment records showed a definitive increase in the Veteran's headaches. The Veteran filed a notice of disagreement as to the disability rating and effective date assigned in the April 2006 rating decision, which is the basis of the current appeal. In December 2009, the Veteran withdrew his claim for an increased rating for his service-connected migraine headache disability and, thus, the only issue currently before the Board is the earlier effective date claim. At the January 2011 hearing, the Veteran testified that he believes the effective date for the grant of the increased 50 percent rating should be January 18, 2003, since his symptoms have been severe and affected his ability to work since he was discharged from service. The assignment of effective dates is governed by 38 U.S.C.A. § 5110 (West 2002 & Supp. 2010) and 38 C.F.R. § 3.400 (2010). The statute and regulation provide, in pertinent part, that the effective date of a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i). An effective date for a claim for increase may be granted prior to the date of claim if it is factually ascertainable that an increase in disability had occurred within one year before the date of claim. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(1) and (2); see also Harper v. Brown, 10 Vet. App. 125, 126 (1997). A specific claim in the form prescribed by the Secretary is necessary for disability benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151. In this context, it should be noted that the provisions of 38 U.S.C.A. § 5110 refer to the date an application is received. While the term "application" is not defined in the statute, the regulations use the terms "claim" and "application" interchangeably, and they are defined broadly to include "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p), 3.155; Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). Under DC 8100, a 10 percent evaluation is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent evaluation is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months and a 50 percent evaluation is warranted for migraines with very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability. Based upon a complete review of the evidentiary record, the Board finds that the earliest effective date assignable for the grant of a 50 percent disability rating for service-connected migraine headaches is August 5, 2003, but no earlier. As noted, the Veteran contends that the effective date for the grant of the 50 percent rating should be in January 18, 2003, the day following separation from service. However, the law only allows for the assignment of an effective date on the day following separation from active service if the claim (on which the appeal is based) involves the grant of service connection and is received within one year after separation from service. See 38 C.F.R. § 3.400(b)(2)(i). While the record reveals that the Veteran filed a claim seeking service connection for migraine headaches prior to his discharge from service, which would warrant an effective date on the day following his separation from active service, the current appeal involves an increase in disability evaluation and arises from a claim filed in August 2005, more than two years after he was separated from service. Therefore, the provisions of 38 C.F.R. § 3.400(b)(2)(i) are not for application in this case and an effective date of January 18, 2003 is legally precluded. In this regard, the Board notes that the initial 10 percent disability rating assigned to the Veteran's service-connected migraines is effective from January 18, 2003, the day following separation from active service. However, the Veteran did not appeal the initial effective date assigned to his service-connected disability and, thus, the January 2003 rating decision has become final and cannot be revised, except on the basis of clear and unmistakable error, which has not been asserted or shown in this case. See 38 U.S.C.A. §§ 7105(c), 5109A; 38 C.F.R. §§ 3.104(a), 3.105(a), 20.1103. Nevertheless, the evidence of record shows that the Veteran's service-connected migraine disability underwent an increase in severity as of August 5, 2003. By way of background, the evidence reflects that the Veteran initially reported experiencing one migraine headache a week, with associated light sensitivity. See July 2002 VA examination report; May 2003 VA outpatient treatment record. However, in August 2003, the Veteran presented for treatment complaining of three severe migraine headaches a week, which lasted for one to four hours and began one hour after taking his morning dose of medication. At that time, the Veteran also reported that he started leaving work early since the frequency of his headaches became more frequent. See also September 2003 VA outpatient treatment record. From December 2004 to April 2005, the Veteran reported that his headaches occurred one to two times a week; however, the evidence shows that the decrease in the frequency and severity of his headaches was temporary. Indeed, beginning in July 2005 and thereafter, the Veteran reported that he was experiencing two small migraine headaches a week, which allowed him to function despite light and sound sensitivity, and two big migraine headaches every two weeks, which made him unable to function and required that he lie down in a quiet place and sleep. The Veteran also variously reported that he was experiencing three to four headaches a week, which lasted for two days and required that he take breaks from work. With regard to work, the Veteran also reported that he missed three days a week over the period of two weeks. See VA outpatient treatment records dated March and July 2006. The Board finds that the evidence clearly shows an increase in the severity of the Veteran's service-connected migraine disability, sufficient to warrant a 50 percent disability rating under DC 8100, as of August 2003. Indeed, the evidence shows that, beginning in August 2003, the Veteran began experiencing prostrating and prolonged attacks of migraine headaches three to four times a week, which affected his ability to work. Therefore, because the evidence shows an increase in the severity of the Veteran's service-connected migraine disability in August 2004, and the increased rating claim on which his earlier effective date claim is based was filed within one year of the evidence showing an increase, the Board finds that August 5, 2003, but no earlier, is the proper effective date for the grant of the 50 percent disability rating for service-connected migraine headaches. See 38 C.F.R. § 3.400(o)(2). In summary, and for the reasons and bases set forth above, the Board finds that the preponderance of the evidence supports the grant of an effective date of August 5, 2003, for the grant of 50 percent for service-connected migraine headaches. In making this determination, all reasonable doubt has been resolved in favor of the Veteran. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010); 38 C.F.R. § 3.159, 3.326(a) (2010). In this case, the Board has granted in full the maximum benefit allowed by the law in this case. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. ORDER An effective date of August 5, 2003 is granted for the grant of a 50 percent rating for service-connected migraine headaches is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs