Citation Nr: 1305705 Decision Date: 02/19/13 Archive Date: 02/27/13 DOCKET NO. 09-24 664 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an effective date earlier than September 17, 2007, for the assignment of a 50 percent rating for service-connected migraine headaches. REPRESENTATION Appellant represented by: James G. Fausone, Attorney ATTORNEY FOR THE BOARD M. Scott Walker, Counsel INTRODUCTION The Veteran served on active duty from August 1987 to January 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The issue of clear and unmistakable error (CUE) has been raised by the record (see Claim, September 2007), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Instead, the RO treated this issue as an increased rating claim, which resulted in the Veteran's challenge of the effective date, a wholly separate type of claim with distinct evidentiary criteria. The Board further notes that the Veteran's representative, in the most recent statement of record in support of the Veteran's claim, dated December 26, 2012, also put forth that "[T]he only issue left for the complete resolution of [the Veteran's] claims is the matter of an earlier effective date for the increased evaluation from 10% disabling to 50% disabling." As such, the Board finds that the Veteran and his representative have chosen to pursue two separate claims, a CUE claim and an earlier effective date (EED) claim. In this context, since CUE is a separate and distinct matter, the Board currently lacks jurisdiction over any theory of CUE that has not been adjudicated by the RO in the first instance. See Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002); Jarrell v. Nicholson, 20 Vet. App. 326, 333 (2006) (en banc). In other words, as only the EED claim has been addressed by the RO in the first instance, this is the only claim for which the Board currently has jurisdiction. Therefore, the Board does not have jurisdiction over a CUE claim, and it is REFERRED to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran filed a claim for an increased rating for service-connected migraine headaches that was received by the RO in September 2007. 2. Affording the Veteran the benefit of the doubt, within one year prior to the date of the claim, on September 17, 2006, it was factually ascertainable that the Veteran's migraine headaches were manifested by very frequent, completely prostrating and prolonged attacks that were productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for the assignment of a September 17, 2006, effective date, but not earlier, for the grant of a 50 percent rating for migraine headaches have been met. 38 U.S.C.A. §§ 5108, 5110, 7104 (West 2002); 38 U.S.C.A. §§ 3.400, 4.124a, Diagnostic Code 8100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that once the underlying claim is granted, further notice as to downstream questions, such as the effective date, is not required. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). As such, no discussion of VA's duty to notify is necessary. The Board also finds that all necessary development of evidence has been completed. VA has obtained the Veteran's service and post-service treatment records. Further, she has been provided appropriate VA examinations which adequately addressed the issue on appeal. Moreover, she has not indicated any additional records VA should seek to obtain on her behalf, nor are any such records reasonably identified by the record. As the Board does not have notice of any additional relevant evidence not of record and since VA has made all reasonable efforts to obtain evidence necessary to substantiate the Veteran's claim, VA need provide no further assistance with the development of evidence. II. Earlier Effective Date The Veteran maintains that she is entitled to an effective date prior to September 17, 2007, for the assignment of a 50 percent disability evaluation for migraine headaches. Specifically, she contends that the effective date should be September 17, 2006, one year prior to the receipt of her increased rating claim, as evidence of record demonstrated that the Veteran's migraine headaches were manifested by very frequent, completely prostrating and prolonged attacks that were productive of severe economic inadaptability. See SSOC Response, December 26, 2012. The provisions governing the assignment of the effective date for an increased rating are set forth in 38 C.F.R. § 5110(a) and (b)(2), and 38 C.F.R. § 3.400(o). The general rule with respect to the effective date of an award of increased compensation is that the effective date of award "shall not be earlier than the date of receipt of the application thereof." 38 U.S.C.A. § 5110(a). This statutory provision is implemented by regulation that provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). An exception to that rule regarding increased ratings applies, however, under circumstances where the evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. If an increase in disability occurred within one-year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C.A. § 5110(b)(2); Dalton v. Nicholson, 21 Vet. App. at 31-32; Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400 (o)(1)(2); VAOPGCPREC 12-98 (1998). In this matter, the Board must determine the date of the claim, and the date entitlement to a 50 percent disability rating arose. Here, a September 17, 2007, statement was interpreted by the RO and the Veteran's representative as an increased rating claim, and thus, the Board will review the claim for evidence as to when it was factually ascertainable that an increase in disability occurred. In this respect, the applicable rating criteria provide that a 50 percent rating for migraine headaches is warranted when migraine headaches were manifested by very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. This is the maximum rating under this Diagnostic Code. Here, private treatment records dated in January and March 2006 noted that the Veteran's migraine headaches necessitate sleeping in a dim room, associated with nausea, photophobia, and occasionally phonophobia, for several hours. The Veteran was afforded a VA examination in April 2006. The results of that examination did not specifically note prostrating episodes productive of severe economic impairment. Rather, the Veteran noted that her headache symptomatology resulted in photo and phonophobia, lasting for several hours, and that she was incapacitated during this period. She stated that these severe headache episodes occurred three times per week. While there may be some question as to whether the headaches reported by the Veteran to the VA examiner represented prostrating and prolonged attacks productive of severe economic inadaptability, the Board is nonetheless obligated in circumstances such as these to afford the Veteran the benefit of the doubt. After doing so, the Board finds that it was factually ascertainable that an increase in disability occurred on September 17, 2006. This date is within one year of the claim for increase. As such, the Board finds that the criteria for the assignment of a September 17, 2006, effective date, but not earlier, have been met. ORDER An effective date of September 17, 2006, but not earlier, for the assignment of a 50 percent rating for migraine headaches is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs