Citation Nr: 1322162 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 09-47 304 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an earlier effective date prior to April 9, 2009, for the award of service connection for headaches. 2. Entitlement to initial disability rating higher than 10 percent for headaches. 3. Entitlement to service connection for a cervical spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A.E.H. Gibson, Associate Counsel INTRODUCTION The Veteran had active duty service from June 1977 to April 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, in pertinent part, granted the Veteran's claims for headaches and assigned an effective date of April 3, 2009. The Veteran timely appealed this issue. In May 2011, the Veteran testified at a Travel Board hearing that was chaired by the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran's VA claims file. Review of the Virtual VA paperless claims processing system does not reveal additional documents or records pertinent to this appeal. The issues of entitlement to service connection for a cervical spine disability and to an increased rating for headaches 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. FINDINGS OF FACT 1. On December 15, 2008, the RO received the Veteran's application seeking service connection for headaches. There is no document in the claims file prior to this date that can be construed as a claim, formal or informal, for service connection for this disability. 2. On April 3, 2009, the Veteran's right upper trapezius muscle spasm was found to be related to service, and his headaches were found to be related to the right upper trapezius muscle spasm. 3. In May 2009, the RO granted service connection for headaches secondary to service-connected right upper trapezius muscle spasm, and assigned a 10 percent rating effective April 3, 2009, for both disabilities. CONCLUSION OF LAW The criteria for an effective date prior to April 3, 2009, for the award of service connection for headaches are not met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.151, 3.155. 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each piece of evidence. See Gonzales, 218 F.3d at 1380-81. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. Id. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. Id. Veteran's Claims Assistance Act (VCAA) The Veterans Claims Assistance Act (VCAA) provides that VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Such notice must also advise that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326 (2012); see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). In a January 2009 letter, the RO informed the Veteran of the evidence necessary to substantiate his service connection claim, as well as the evidence that VA would obtain and the evidence that the Veteran was responsible to provide. Notice regarding effective dates and the assignment of disability ratings was also provided in this letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's claim for an earlier effective date for his service-connected headaches arises from the Veteran's disagreement with the date initially assigned following the grant of service connection. The Board notes that in Dingess, the United States Court of Appeals for Veterans Claims (Court) held that once a service-connection claim is granted, the claim is substantiated and further notice as to the effective date and rating elements is not required. Therefore, in this case, as entitlement to service connection for headaches has already been granted by the RO, and the Veteran is now seeking the assignment of an effective date for the award of service connection earlier than that assigned by the RO, further notice regarding effective dates is not required. Id.; also see Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Regarding VA's duty to assist in development, the Veteran's service treatment records and VA treatment records have been associated with the file, and the Veteran was provided a VA examination in connection with his initial service connection claim. In short, the Board has carefully considered the provisions of the VCAA, in light of the record on appeal and, for the reasons expressed above, finds that the development of the Veteran's claim has been consistent with said provisions. The Board is satisfied that any procedural errors in the originating agency's development and consideration of the claim were insignificant and nonprejudicial to the Veteran. The Board finds that the Veteran's May 2011 hearing at the St. Petersburg RO complied with 38 C.F.R. § 3.103(c)(2), which requires that a VLJ chairing a hearing (1) fully explain the issues under consideration, and (2) suggest the submission of evidence that may have been overlooked and that may be advantageous to the claimant's position. Bryant v. Shinseki, 23 Vet. App. 488 (2010). The Veteran presented testimony regarding his contention that he filed a claim to service connect headaches in 1986, and submitted a copy of the claim he filed at that time. Thus, although the VLJ did not specifically explain the bases for the denial of his claim, the Veteran and his representative demonstrated actual knowledge of the type of evidence and information needed to substantiate the claim. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative demonstrating an awareness of what is necessary to substantiate a claim). In regard to the suggestion of overlooked evidence, the Veteran did not provide any testimony that should have put the VLJ on notice that additional evidence was available that had not been received. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor have they identified any prejudice in the conducting of that hearing. As such, the Board finds that, consistent with Bryant, the presiding VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can proceed to adjudicate this claim based on the current record. Relevant law and regulations Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2012). The effective date for an award of disability compensation based on an original claim for direct service connection is the day following separation from active service or the date entitlement arose if a claim is received within one year after separation from service. Otherwise, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110 (b)(1) (West 2002); 38 C.F.R. § 3.400(b)(2)(i) (2012). If the grant is based on a claim which has been finally denied and subsequently reopened by the receipt of new and material evidence, the effective date is the date of receipt of the new claim, or the day entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400(q), (r) (2012). The effective date of a disability that is service-connected on a secondary basis is not necessarily identical to that of the original condition, and does not relate back to the filing date of the prior claim for the antecedent disability upon which the secondarily service-connected disability is based, unless they were filed at the same time. Ellington v. Nicholson, 541 F.3d 1364 (Fed. Cir. 2008). Instead, the effective date can arise no earlier than the date of receipt of the application for benefits for the secondary disability or the date entitlement arose, whichever is later. Id. A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a) (West Supp 2012); 38 C.F.R. § 3.151(a) (2012). The term "claim" or "application" means 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) (2012). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (2012). The RO has assigned an effective date of April 3, 2009, for the award of service connection for headaches, based on the date of the VA examination wherein the Veteran's headaches were found to be related to his service-connected right upper trapezius muscle spasm. The Veteran seeks the assignment of an earlier effective date, contending that it should be in April 1986, which is when he alleges he filed a claim to service connect headaches. Based upon a complete review of the evidence on file, and for the reasons discussed below, the Board finds that the currently assigned effective date of April 3, 2009, is the earliest effect date assignable for service connection for headaches. VA's statutory duty to assist means that VA must liberally read all documents submitted to include all issues presented. See Verdon v. Brown, 8 Vet. App. 529, 533 (1996); EF v. Derwinski, 1 Vet. App. 324, 326 (1991). However, in Brannon v. West, 12 Vet. App. 32 (1998), the Court observed that while the VA must interpret a claimant's submissions broadly, it is not required to conjure up issues that were not raised by the claimant. The Court has further held that VA is not held to a standard of prognostication when determining what issues are presented. See Talbert v. Brown, 7 Vet. App. 352, 356- 57; Allin v. Brown, 6 Vet. App. 207, 213 (1994) ("[t]here must be some indication . . . that [a claimant] wishes to raise a particular issue . . . . The indication need not be express or highly detailed; it must only reasonably raise the issue."). At his May 2011 hearing, the Veteran testified to filing a claim in 1986 for service connection for headaches. At the hearing, he submitted copies of claims dated in 1986 and 1989. None of these claims were located in the Veteran's VA file, and none of them are date-stamped as being received by VA on a specific date. Thus, it is not clear that they were ever filed because they are not of record. Even if they had already been of record, they do not support the Veteran's contention because they do not raise the issue of headaches. The Veteran submitted copies of Applications for Education Benefits, Medical Benefits, and Compensation or Pension at Separation from Service, all dated April 3, 1986, and an Application for Compensation or Pension dated April 19, 1989. The only item claimed on any of these applications is an injury to the right shoulder. The Veteran testified his belief that if VA had developed those claims properly, his headaches would have been linked to his right shoulder. To some extent, it appears the Veteran is raising an argument based on equity, in that he contends that his headaches manifested well before the date of his most current claim, and he should be compensated therefor. However, the Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503, 7104 (West 2002 & Supp. 2012); see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Indeed, the effective date of an award based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (2012). The Board also considered an August 2003 claim that sought benefits for "right shoulder secondary head - left shoulder." In a letter dated September 25, 2003, the RO informed the Veteran that a claim for a right shoulder condition was being developed, and asked him to specify whether he was claiming anything in addition because his claim was not clear. This letter was sent to his address of record, and there is no indication that it was not received. The Veteran did not respond with clarification, and the issue remained whether he was entitled to service connection of a right shoulder condition. This claim was denied in January 2004, and although the Veteran noted his disagreement, he never substantively appealed the issue. The Veteran's claim for service connection for headaches and a cervical spine disability was received by the RO on December 15, 2008. At the April 3, 2009, VA examination, the headaches were found to be due to muscle spasms in his right upper trapezius muscle, which was found to be related to service. Both disabilities were service-connected effective the date of the examination, which is when entitlement arose. As discussed above, a disability that is service connected secondary to another service-connected disability cannot have an effective date earlier than the effective date of the condition is it related to. Ellington v. Peake, 541 F.3d 1364 (2008). Here, the upper right trapezius muscle spasms were found to be related to service on April 3, 2009. On that same day, headaches were found to be related to the upper right trapezium muscle spasms. Both were given effective dates of April 3, 2009. Accordingly, the effective date for headaches can be no earlier than April 3, 2009. Thus, the Board finds that the effective date was properly assigned on the basis of the April 3, 2009, VA examination that established the Veteran's entitlement to service connection for the upper right trapezius muscle spasms, and headaches secondary to the muscle spasms. That relationship had not been established prior to that examination. The Board has considered a February 2, 2009, record from the Gainesville VA medical center, in which the physician notes that the Veteran's back pain is "associated" with posterior headaches. That record does not establish the type of association, or whether one condition caused the other, or whether they are merely correlated. As such, it cannot support an effective date earlier than that already assigned. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[a] medical opinion...must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"); Libertine v. Brown, 9 Vet. App. 521, 523 (1996) (medical opinions which are speculative, general, or inconclusive in nature cannot support a claim). The Board has considered the Veteran's statements that he has alleged a connection between his headaches and the injuries incurred in a motor vehicle accident (MVA) in service since before he filed is December 2008 claim. The Veteran is competent to attest to his personal experiences, such as involvement in an MVA, as well as to symptoms that are non-medical in nature, such as pain. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can also establish a diagnosis, such as when symptoms described are later supported by a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Here, however, the Veteran has consistently attributed his headaches to his cervical spine disability rather than his shoulder. See, e.g., VA treatment records dated October 17, 2008, May 5, 2008, February 8, 2006; Claim received December 15, 2008. In any event, entitlement was not established until April 3, 2009, and the effective date of a secondarily service-connected disability can be no earlier than the date of receipt of the claim or the date entitlement arose, whichever is later. In summary, the Board finds the evidence of record is against a claim for entitlement to an effective date earlier than April 3, 2009, for the award of service connection for headaches secondary to service connection for upper right trapezium muscle spasm. The date of receipt of the Veteran's claim was December 15, 2008, but the relationship between the upper right trapezius and his headaches was not established until April 3, 2009. There was no earlier claim, formal or informal, that was pending, and no earlier evidence of a relationship between his headaches and active duty service or any of his other service-connected disabilities. Accordingly, the benefit sought on appeal is denied. ORDER Entitlement to an earlier effective date for service connection for headaches is denied. REMAND At the May 2011 Travel Board hearing, the Veteran testified that he had an appointment at the Leesburg Community Based Outpatient Clinic (CBOC) "next month," that is, in June 2011. The records from this ongoing treatment are not located in the file. Further, the Veteran should be afforded VA examinations to determine whether his cervical spine disability is related to service, and to assess the severity of his service-connected headaches. The last VA examination that addressed these issues was in April 2009. In regard to headaches, the Veteran asserts that his symptoms are worse than when he was last examined four years ago. A current examination is warranted. In regard to his cervical spine condition, the opinion of the April 2009 VA examiner is not adequate for adjudicatory purposes. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he identify any additional treatment he has received for headaches and his cervical spine, from August 2010 to the present. Take appropriate steps to secure copies of any such treatment reports identified by the Veteran that are not already in the record on appeal, to include relevant records from the Leesburg CBOC, Gainesville VA medical center (VAMC), and the Orlando VAMC. If any such records cannot be found, or if they do not exist, request specific confirmation of that fact and make a formal finding of such unavailability. 2. Following the completion of the foregoing, schedule the Veteran for a VA examination to assess the severity of his headaches. All appropriate tests should be conducted. The entire claims file and a copy of this remand must be made available to the VA examiner, who is asked to review and comment on both the records and the Veteran's lay statements. The examiner is asked to specifically identify all symptomatology and manifestations of the service-connected headaches, to include the frequency, severity, and duration of symptoms, as well as their impact on employability. 3. Contemporaneously with the above directive, schedule the Veteran for a VA examination to assess the nature and etiology of his cervical spine disability. All appropriate diagnostic tests should be conducted. The entire claims file and a copy of this remand must be made available to the VA examiner, who is asked to review and comment on both the records and the Veteran's lay statements when rendering an opinion. The VA examiner is specifically asked to provide an opinion on the likelihood that any current cervical spine disability is related to the Veteran's active duty military service, including as due to a motor vehicle accident that occurred in 1985. All opinions rendered should be supported by explanatory rationale. 4. Review the entire claims file to ensure the requested development has been completed. In particular, review the VA examination reports to ensure that they are responsive to and in compliance with the directives of this remand, and if not, implement corrective procedures. 5. Finally, readjudicate the Veteran's claims. If the claims are not granted, provide the Veteran and his representative with a supplemental statement of the case, and after they have had an adequate opportunity to respond, return this issue to the Board for further appellate review. The Veteran 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. 2012). ______________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs