Citation Nr: 1309869 Decision Date: 03/22/13 Archive Date: 04/01/13 DOCKET NO. 10-43 211 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an effective date prior to July 27, 2009, for the award of a 30 percent evaluation for chronic headaches. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran served on active duty from January 1951 to November 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In July 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge sitting at the RO. A transcript of the hearing is associated with the claims file. In September 2012, this case was remanded for further development and now returns for appellate review. As will be discussed further herein, the Board finds that the agency of original jurisdiction (AOJ) has substantially complied with the remand directives such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. A final June 2008 rating decision continued a 10 percent rating for the Veteran's service-connected chronic headaches. 2. Following the final June 2008 rating decision, VA first received the Veteran's claim seeking an increased rating for his service-connected chronic headaches on July 27, 2009. 3. Resolving all doubt in the Veteran's favor, it is factually ascertainable that he met the criteria for a 30 percent rating for his chronic headaches within one year prior to July 27, 2009, i.e., as of July 27, 2008. CONCLUSION OF LAW The criteria for an effective date of July 27, 2008, but no earlier, for the grant of a 30 percent rating for chronic headaches have been met. 38 U.S.C.A. §§ 5107, 5110, 7105 (West 2002); 38 C.F.R. §§ 3.102, 3.400, 4.124a, Diagnostic Code 8100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. The Board notes that the Veteran's claim for an earlier effective date for the award of a 30 percent rating for his chronic headaches is a downstream issue from the original award of such benefit. Grantham v. Brown, 114 F.3d 1156 (1997). VA's General Counsel has held that no VCAA notice is required for such downstream issues. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). In addition, the Board notes that the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006); see also Goodwin v. Peake, 22 Vet. App. 128 (2008) (the Court held that as to the notice requirements for downstream earlier effective date claims following the grant of service connection, "that where a claim has been substantiated after enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements"). In this case, the Veteran's increased rating claim was granted and an effective date was assigned in the October 2009 rating decision on appeal. As such, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Relevant to the duty to assist, the Board notes that relevant medical evidence was reviewed by the RO in connection with the adjudication of the Veteran's increased rating claim. Additionally, the Veteran was afforded a VA examination in September 2009 in order to determine the current nature and severity of his chronic headaches. As indicated in the Introduction, pursuant to the September 2012 Board remand, VA treatment records dated from July 2008 through August 2012 were associated with the Veteran's Virtual VA file and were reviewed in the February 2013 supplemental statement of the case. Therefore, the Board finds that the AOJ has substantially complied with the September 2012 remand directives such that no further action is necessary in this regard. See D'Aries, supra. Furthermore, as the Board is granting the earliest possible effective date under VA regulations, namely one year prior to the receipt of his claim as it was factually ascertainable that he met the criteria for a 30 percent rating at that time, and his arguments on appeal are limited to his interpretation of governing legal authority, all pertinent information and evidence is already contained in the claims file. There is no outstanding information or evidence that would help substantiate the Veteran's claim. VA's General Counsel has held that in cases where a claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit, VA is not required to provide notice of, or assistance in developing, the information and evidence necessary to substantiate such a claim under 38 U.S.C.A. §§ 5103(a) and 5103A. See VAOPGCPREC 5-04 (June 23, 2004). The Veteran testified in support of the claim at a July 2012 Board hearing before the undersigned Veterans Law Judge. The Veteran has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) in the conduct of the Board hearing nor has he otherwise alleged or identified any prejudice in the conduct of the Board hearing. Rather, the hearing focused on the elements necessary for claim substantiation and the Veteran, via testimony, demonstrated actual knowledge of the elements necessary for claim substantiation. Moreover, the hearing discussion did not reveal any evidence that might be available that had not been submitted with respect to the issue on appeal, with the exception of additional VA treatment records, which were obtained on remand. The Board finds that, consistent with the holding in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis The Veteran contends that he is entitled to a 30 percent rating prior to July 27, 2009, for his service-connected chronic headaches. The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on a claim for service connection or for an increase of compensation "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore." 38 U.S.C.A. § 5110(a). The implementing regulation clarifies this to mean that the effective date of an award of service connection or for increased compensation "will be the date of receipt of the claim or the date entitlement arose, whichever is later." 38 C.F.R. § 3.400. This claim is subject to the more specific criteria under 38 U.S.C.A. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2). "The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date." 38 U.S.C.A. § 5110(b)(2). The implementing regulation summarizes the criteria for an effective date of an award of increased compensation as the "[e]arliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date otherwise, date of receipt of claim." 38 C.F.R. § 3.400(o)(2). The Court has indicated that it is axiomatic that the fact that must be found, in order for entitlement to an increase in disability compensation to arise, is that the service-connected disability must have increased in severity to a degree warranting an increase in compensation. See Hazan v. Gober, 10 Vet. App. 511, 519 (1992) (noting that, under section 5110(b)(2), which provides that the effective date of an award of increased compensation shall be the earliest date of which it is ascertainable that an increase in disability had occurred, "the only cognizable 'increase' for this purpose is one to the next disability level" provided by law for the particular disability). Thus, determining whether an effective date assigned for an increased rating is correct or proper under the law requires (1) a determination of the date of the receipt of the claim for the increased rating as well as (2) a review of all the evidence of record to determine when an increase in disability was "ascertainable." Id. at 521. Any communication or action, indicating an intent to apply for a VA benefit, from a claimant may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). Also, with regard to the terms "application" or "claim", the Board notes that, once a formal claim for compensation has been allowed, the date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim, provided such reports relate to examination or treatment of a disability for which service connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment, or hospital admission. 38 C.F.R. § 3.157(b)(1); see also 38 C.F.R. § 3.155(a). Evidence received from a private physician or layperson will also be accepted as a claim for an increase or to reopen when the evidence is within the competence of the physician or layperson and shows the reasonable probability of entitlement to benefits. The date of receipt of such evidence will be accepted as the date of receipt of the claim. 38 C.F.R. § 3.157(b)(2). In Servello v. Derwinski, 3 Vet. App. 196, 198 (1992), the Court held that the applicable statutory and regulatory provisions, fairly construed, require the Board to look at all communications in the file that might be interpreted as applications or claims, formal or informal, for increased benefits and, then, to all other evidence of record to determine the "earliest date as of which," within the one-year prior to the claim, the increase in disability was ascertainable. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. §§ 3.400(o)(2), 3.155(a); Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). By way of background, in a March 2000 rating decision, the Veteran was awarded service connection for chronic headaches and assigned an initial 10 percent rating, effective September 23, 1999. Most recently, VA received his application for an increased rating on July 27, 2009. Immediately prior to the receipt of the Veteran's July 2009 claim, the RO continued the 10 percent rating for his chronic headaches in a rating decision issued in June 2008. The Veteran was informed of the decision and his appellate rights; however he did not initiate an appeal regarding such matter. Therefore the June 2008 rating decision is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2008) [2012]. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. In the instant case, while additional evidence was received within the applicable timeframe, such pertained to the Veteran's hearing loss. The records do not address his headaches. Therefore, the Board finds that no new and material evidence was received prior to the expiration of the appeal period stemming from the June 2008 rating decision. See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). Following the final June 2008 rating decision, the Veteran's claim for an increased rating for chronic headaches was first received by VA on July 27, 2009. In making such determination, the Board has considered whether any communication or treatment record dated prior to July 27, 2009, may be considered an informal claim. In this regard, the Board observes that the Veteran did not submit any communications regarding a claim. Furthermore, no treatment records referable to headaches were received prior to such date. In this regard, the Board acknowledges that a private treatment record was received in November 2008; however, such pertained to the Veteran's hearing loss and does not address his headaches. The Board also notes that, while no VA treatment records were associated with the claims file prior to October 2009, VA treatment records dated from July 2008 to July 2009 were subsequently added to the file. However, upon a review of such records, the Board finds that, while such treatment records reflect complaints pertaining to the Veteran's headaches, such do not include an examination or hospital admission. In this regard, VA treatment records dated in October 2008 and April 2009 show that the Veteran's right eye disability was causing part of headaches. Therefore, absent an examination or hospital admission pertaining to the Veteran's headaches, such VA treatment records cannot be construed as an informal claim for an increased rating for such service-connected disability. 38 C.F.R. § 3.157(b). Thereafter, the October 2009 rating decision on appeal assigned a 30 percent rating for chronic headaches, effective July 27, 2009, the date VA received the Veteran's claim for increase. Therefore, the Board has reviewed the evidence of record within the one year period prior to the receipt of such claim in July 27, 2009, so as to determine the earliest date it is factually ascertainable that the Veteran's chronic headaches met the criteria for a 30 percent rating. In this regard, the Veteran has been diagnosed with chronic headaches, which has been rated as 30 percent under 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100, which provides the criteria for rating migraine headaches. Pursuant to DC 8100, very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are assigned a 50 percent rating. 38 C.F.R. § 4.124a, DC 8100. Characteristic prostrating attacks occurring on an average once a month, over the last several months, are assigned a 30 percent rating. Id. Characteristic prostrating attacks averaging one in two months over last several months are assigned a 10 percent rating. Id. The rating criteria do not define "prostrating," nor has the Court. The Board notes, however, that Dorland's Illustrated Medical Dictionary1554 (31st Ed. 2007), defines "prostration" as "extreme exhaustion or powerlessness." Similarly, Webster's II New College Dictionary 889 (3rd Ed. 2001), defines the term as "physically or emotionally exhausted; incapacitated." As noted, pertinent VA treatment records dated within the year prior to July 27, 2009, document the Veteran's continued complaints of headaches, among his other disabilities. On September 2009 VA neurological examination, the Veteran reported constant chronic severe headaches. He specifically reported that his head hurts all of the time. He indicated that when he experiences the very severe flare-ups, which he reported is daily off and on, he has to lie down in a dark room until it subsides, usually after 30 minutes. The examiner diagnosed headaches, chronic from right orbital pain, severe and incapacitating. During the July 2012 Board hearing, the Veteran testified that, within the year prior to July 27, 2009, he experienced identical symptoms to those noted on the September 2009 VA examination. He testified that between 2008 and the present he has to lay down at least 2 to 3 times per month with a cold pack, and in a dark room. See page 11 of the transcript. In this regard, the Veteran is competent to report on factual matters of which he had firsthand knowledge, e.g., experiencing extreme pain that only subsides when he lies down in a dark room with a cool towel over his head. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board further finds that the Veteran's testimony is credible. Therefore, based on the foregoing, the Board finds that, after the most recent final June 2008 rating decision, VA first received the Veteran's claim for an increased rating for chronic headaches on July 27, 2009. However, resolving all doubt in the Veteran's favor, the Board concludes that it is factually ascertainable that his chronic headaches more nearly approximated the criteria required for a 30 percent rating under the applicable Diagnostic Code during the one year prior to the receipt of his claim. As such, the Board concludes that an effective date of July 27, 2008, but no earlier, for the assignment of a 30 percent rating for chronic headaches is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER An effective date of July 27, 2008, but no earlier, for the award of a 30 percent rating for chronic headaches is granted, subject to the law and regulations governing payment of monetary benefits. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs