Citation Nr: 1323316 Decision Date: 07/22/13 Archive Date: 08/01/13 DOCKET NO. 08-07 263 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Whether there was clear and unmistakable error in an April 30, 1996, Board of Veterans' Appeals decision which denied service connection for residuals of a neck injury. 2. Whether there was clear and unmistakable error in a July 30, 1992 rating decision which did not grant a separate evaluation for optical migraines. 3. Entitlement to an effective date earlier than March 17, 2006, for the grant of service connection for residuals of a neck injury. 4. Entitlement to an effective date earlier than March 17, 2006, for the grant of service connection for peripheral neuropathy of the right hand. 5. Entitlement to an effective date earlier than March 17, 2006, for the grant of service connection for ocular migraine headaches. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD David S. Ames, Counsel INTRODUCTION The Veteran served on active duty from May 1979 to July 1990. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in Seattle, Washington (RO). This case was remanded by the Board in May 2010, March 2012, and August 2012 for additional development. FINDINGS OF FACT 1. The denial of service connection for residuals of a neck injury in an April 1996 Board decision was consistent with VA law and regulations then in effect. 2. The decision to not grant a separate evaluation for optical migraines in an July 1992 rating decision was consistent with VA law and regulations then in effect. 3. A Board decision denied entitlement to service connection for residuals of a neck injury in April 1996 and a rating decision dated in February 1997 denied the Veteran's claim to reopen the issue of entitlement to service connection for residuals of a neck injury. 4. The Veteran's claim to reopen the issue of entitlement to service connection for residuals of neck injury was received by VA on March 17, 2006. 5. The evidence of record does not show that the Veteran ever filed a formal or informal claim to reopen the issue of entitlement to service connection for residuals of a neck injury prior to March 17, 2006. 6. The evidence of record does not show that entitlement to service connection for peripheral neuropathy of the right hand arose prior to March 17, 2006. 7. It is factually ascertainable that the Veteran's service-connected ocular migraines increased in severity in the one year period prior to March 17, 2006. CONCLUSIONS OF LAW 1. The April 1996 Board decision that denied service connection for residuals of neck injury did not contain clear and unmistakable error (CUE). 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1403 (2012). 2. The July 1992 rating decision which did not grant a separate evaluation for optical migraines did not contain CUE. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.105 (2012). 3. The criteria for an effective date prior to March 17, 2006, for the grant of service connection for residuals of a neck injury, have not been met. 38 U.S.C.A. §§ 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.155, 3.400 (2012). 4. The criteria for an effective date prior to March 17, 2006, for the grant of service connection for peripheral neuropathy of the right hand, have not been met. 38 U.S.C.A. §§ 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.310, 3.155, 3.400 (2012). 5. The criteria for an effective date of March 30, 2005, for the grant of a separate rating for ocular migraine headaches, have been met. 38 U.S.C.A. §§ 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.157, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS CUE Under the Veterans Claims Assistance Act of 2000 (VCAA), VA generally has a duty to notify and assist claimants in substantiating a claim for 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). However, a motion for CUE is not a claim or application for VA benefits and thus VCAA requirements are not applicable to CUE motions. See Livesay v. Principi, 15 Vet. App. 165 (2001). The Veteran claims that rating decisions dated in May 1992 and July 1992 contained CUE. With respect to the July 1992 rating decision, that decision was not appealed, and thus that decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.104(a) (2012). RO decisions that are final and binding are accepted as correct in the absence of CUE. 38 C.F.R. § 3.105(a) (2012). The Board shall therefore address the Veteran's contentions of CUE in the July 1992 rating decision below. However, with respect to the May 1992 rating decision, the Veteran appealed that decision the Board, and the Board denied her claims in an April 1996 decision. Accordingly, the Veteran's contentions regarding the May 1992 rating decision are moot as that decision was affirmed by the Board and cannot be revised without first revising the April 1996 Board decision which affirmed it. The Board shall therefore apply the Veteran's CUE arguments regarding the May 1992 decision to the April 1996 Board decision. A motion for revision of a decision based on CUE must be in writing, and must be signed by the moving party or that party's representative. The motion must include the name of the Veteran, the name of the moving party if other than the Veteran, the applicable VA file number, and the date of the Board decision to which the motion relates. Motions that fail to comply with these requirements shall be dismissed without prejudice. See 38 C.F.R. § 20.1404(a) (2012). A decision issued by the Board is final. 38 U.S.C.A. §§ 7103, 7104(a) (West 2002); 38 C.F.R. §§ 20.1100, 20.1104 (2012). However, a final Board decision may be revised or reversed on the grounds of CUE. 38 U.S.C.A. § 7111(a) (West 2002). CUE is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. 38 C.F.R. § 20.1403(a). A three-pronged test is used to determine whether CUE was present: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied, (2) the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made, and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). To warrant revision or reversal of a Board decision for CUE, there must have been an error in the Board's adjudication of the appeal which, had it not been made, would have manifestly changed the outcome when it was made. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. 38 C.F.R. § 20.1403(c). CUE does not include a change in medical diagnosis that corrects an earlier diagnosis considered in a Board decision, VA's failure to fulfill the duty to assist, or a disagreement as to how the facts were weighed or evaluated. 38 C.F.R. § 20.1403(d). Review for CUE in a prior Board decision must be based on the record and the law that existed when that decision was made. 38 C.F.R. § 20.1403(b)(1). For a Board decision issued on or after July 21, 1992, the record that existed when that decision was made includes relevant documents possessed by the Department of Veterans Affairs not later than 90 days before such record was transferred to the Board for review in reaching that decision, if the documents could reasonably be expected to be part of the record. 38 C.F.R. § 20.1403(b)(2). The Veteran asserts that the Board erroneously failed to grant service connection for residuals of neck injury. The Veteran has repeatedly identified the claimed error as a failure by VA to provide her with an adequate VA medical examination. Specifically, she claims that the February 1992 VA medical examination, upon which both the May 1992 rating decision and the April 1996 Board decision relied, was inadequate because the examiner (1) was not qualified to assess her orthopedic complaints and (2) did not conduct a thorough orthopedic examination. However, the provision of an adequate medical examination is part of VA's duty to assist. 38 C.F.R. § 3.159(c)(4) (2012). Accordingly, even if the Veteran is correct that the February 1992 VA medical examination was inadequate, such a situation would not constitute CUE. 38 C.F.R. § 20.1403(d). Accordingly, the April 1996 Board decision does not contain CUE to the extent that it relied upon the February 1992 VA medical examination, as there is no evidence of any kind of an "undebatable" error "to which reasonable minds could not differ." See Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). With respect to the July 1992 rating decision, the Veteran claims that the RO failed to grant service connection for "ophthalmic migraine" despite the fact that such a diagnosis was given by the June 1992 VA visual examination. In this regard, the Board notes that the June 1992 VA visual examination report gave three separate diagnoses, namely (1) area of retinal atrophy, left retina; (2) vitreous floaters; and (3) symptoms of an ophthalmic migraine. The July 1992 rating decision specifically noted all three of these diagnoses, stated that the Veteran's claim was granted, and then assigned a 10 percent rating for atrophy of the retina of the left eye, under 38 C.F.R. § 4.79, Diagnostic Code 6011 (2012). While the July 1992 rating decision does not specifically state why service connection for ophthalmic migraines was not listed as granted at that time, the totality of the evidence of record clarifies the situation a great deal. The Veteran's claim originated from a July 1990 application for compensation in which she requested service connection for, among other things, "[o]ccational lose of center of site. [sic]" The RO interpreted this as a general claim for vision problems and adjudicated it as such, first deferring the issue in May 1992 and then grating it in July 1992. The Board emphasizes that the July 1992 rating decision specifically granted the issue of service connection for visual problems, and specifically mentioned the Veteran's symptoms of an ophthalmic migraine. This demonstrates that the RO was considering all of the Veteran's visual problems as a single disability and was rating all three of the diagnoses collectively. As such, the Veteran's assertion that the RO failed to grant service connection for ophthalmic migraines is incorrect. What actually happened was that the RO granted service connection for visual problems in general, and then assigned a single rating for these symptoms as a whole. As such, if the RO committed any error, it was a failure to assign a separate compensable rating for the Veteran's ophthalmic migraines, not a failure to grant service connection for the disorder. In this regard, the Board notes that there is no evidence that the July 1992 rating decision made an "undebatable" error "to which reasonable minds could not differ" in assigning a 10 percent rating under 38 C.F.R. § 4.79, Diagnostic Code 6011, for all of the Veteran's visual problems. The Veteran reported, at the time, that her ophthalmic migraines were manifested by episodes where her "central vision becomes fuzzy and this increases in size" without headaches. The July 1992 rating decision specifically noted this complaint, which constitutes evidence that the rating took these symptoms into consideration when determining the proper rating to assign. While the Veteran's description of her symptoms raises the question of whether a rating could have been assigned on the basis of visual field abnormalities, the Board notes that no visual field abnormalities were found in the June 1992 examination. Accordingly, there was evidence of record at the time of the July 1992 rating decision which justified a decision not to provide a separate compensable rating on the basis of visual field abnormalities. Furthermore, the Board notes that the June 1992 VA visual examination report specifically recommended that the Veteran be provided with a Goldmann visual field test to rule out an alternative diagnosis for what was suspected to be ophthalmic migraines. While such testing was not conducted prior to the July 1992 rating decision, it was conducted in September 1992, after which the RO, in June 1993, reviewed the rating assigned for the Veteran's visual disorder, taking into account the visual field test results obtained in September 1992. At that time, the RO chose to continue the single 10 percent rating under Diagnostic Code 6011. Accordingly, the evidence of record shows that the RO intentionally obtained diagnostic test results designed to assess, in part, the presence symptoms of ophthalmic migraines, after which it concluded that the existing 10 percent rating remained appropriate. As such, the Board does not find any evidence that the July 1992 rating decision made any error in rating the Veteran's visual problems, let alone that any such an error would have manifestly changed the outcome of the issue. Accordingly, the July 1992 rating decision does not contain CUE to the extent that it did not grant a separate evaluation for optical migraines, because there is no evidence of any error would have manifestly changed the outcome of the issue. See Russell, 3 Vet. App. at 313-14. Earlier Effective Dates Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the Veteran is harmless because of the thorough and informative notices provided throughout the adjudication and because the Veteran had a meaningful opportunity to participate effectively in the processing of the claims with an adjudication of the claims by the RO subsequent to receipt of the required notice. The record does not show prejudice to the Veteran, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006); Kent v. Nicholson, 20 Vet. App. 1 (2006). Specifically, the Veteran was notified in a letter dated in March 2006. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and her representative suggest actual knowledge of the elements necessary to substantiate the claims. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the Veteran and had satisfied that duty prior to the adjudication in the supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the Veteran of any evidence that could not be obtained. The Veteran has not referred to any additional, unobtained, relevant, available evidence. These claims were remanded in August 2012, in part, so that an attempt could be made to obtain relevant VA medical records dated prior to July 1992. The evidence of record shows that VA medical records from this period have been found to be unavailable. The Board is satisfied that the evidence of record shows that VA has made sufficient efforts to secure these records for the Veteran and has notified her of the records which are unavailable in a January 2013 letter. The Board concludes that further development and additional efforts to assist or notify the Veteran in accordance with 38 C.F.R. § 3.159(e) (2012) would serve no useful purpose. Soyini v. Derwinski, 1 Vet. App. 540 (1991). Accordingly, the Board also finds that there has been substantial compliance with the Board's August 2012 remand. D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141 (1999). Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist her in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Under 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400(b)(2)(i), the effective date of an award of direct service connection shall be the day following separation from active service or date entitlement arose if a claim is received within 1 year after separation from service; otherwise, the effective date of an award of direct service connection shall be either the date of receipt of the claim, or date entitlement arose, whichever is later. A "claim" is defined in the VA regulations as "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). An informal claim is "[a]ny communication or action indicating an intent to apply for one or more benefits." 38 C.F.R. § 3.155(a). VA must look to all communications from a claimant that may be interpreted as applications or claims - formal and informal - for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). The effective date of a successful claim to reopen is the date of receipt of the claim to reopen or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i); Spencer v. Brown, 4 Vet. App. 283, 293 (1993), aff'd 17 F.3d 368 (Fed. Cir. 1994). A decision issued by the Board is final. 38 U.S.C.A. §§ 7103, 7104(a); 38 C.F.R. §§ 20.1100, 20.1104. A final decision is binding based on the evidence then of record and the claim may not thereafter be reopened or allowed, except upon the submission of new and material evidence or a showing that the prior final decision contained CUE. See 38 U.S.C.A. §§ 7104(b), 7105(c); 38 C.F.R. §§ 3.105, 20.1100, 20.1104, 20.1400. Generally, the effective date of an evaluation and award of compensation for an increased evaluation is the later of the date of receipt of the claim or the date entitlement arose. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(o)(1). In some cases, a report of examination or hospitalization may be accepted as an informal claim for benefits. 38 C.F.R. § 3.157(b). The date of outpatient or hospital examination or date of admission to a VA hospital will be accepted as the date of receipt of a claim when 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). An exception to the general rule applies where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of the claim for increased compensation. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125, 126 (1997). The question of when an increase in disability is factually ascertainable is based on the evidence in the Veteran's claims folder. Quarles v. Derwinski, 3 Vet. App. 129, 135 (1992). Residuals of a Neck Injury The Veteran claims entitlement to an effective date earlier than March 17, 2006, for the grant of service connection for residuals of a neck injury. The medical evidence of record shows that the Veteran sustained a neck injury during service in 1988. While the medical evidence of record does not clearly demonstrate when the Veteran began experiencing chronic residuals of this injury, the medical evidence of record does demonstrate that these chronic residuals began prior to March 17, 2006. However, as discussed below, determining the precise date of entitlement is irrelevant to this claim, as the evidence of record shows that the date of receipt of the Veteran's claim is March 17, 2006. The Veteran filed a claim of entitlement to service connection for residuals of a neck injury in July 1990. The claim was denied by a May 1992 rating decision, and the Veteran perfected an appeal as to the denial in August 1992. The Board then denied the claim in April 1996. The April 1996 Board decision is final. 38 C.F.R. § 20.1100. As discussed above, the Veteran has since filed a claim alleging CUE in the May 1992 rating decision, but the Board has denied that claim and as such the May 1992 rating decision and the April 1996 Board decision remain final. In October 1996, the Veteran then filed a claim to reopen the issue of entitlement to service connection for residuals of a neck injury. This claim was then denied by a February 1997 rating decision. The Veteran did not appeal that decision, and it is final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. On March 17, 2006, VA received an informal claim to reopen the issue of entitlement to service connection for residuals of a neck injury. Thereafter, a February 2007 rating decision granted service connection for residuals of a neck injury and assigned an effective date of March 17, 2006, for the disability. The Veteran claims that the effective date should be the date that her original claim for service connection was filed, July 13, 1990. However, this date is inapplicable due to the finality of the April 1996 Board decision and the February 1997 rating decision. The 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), 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 the plain meaning of § 5110 to be that "the phrase 'application therefor' means the application which resulted in the award of disability compensation that it to be assigned an effective date 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 Veteran "first sought to reopen his claim"). Accordingly, the Veteran is not entitled to an effective date prior to February 26, 1997, the date of the last final rating decision. Instead, the proper date of the claim is the date of receipt of the first document which meets VA requirements after February 26, 1997, or when entitlement arose, whichever is later. 38 C.F.R. § 3.400. The Veteran and her representatives submitted multiple documents between February 26, 1997, the date of the final rating decision, and March 17, 2006, the currently assigned effective date for the Veteran's service-connected residuals of a neck injury. The first documents were received on September 2, 1997 and October 20, 1997, but they were statements from the Veteran's representative regarding an appeal of other issues and it did not comment on the Veteran's neck in any way. As such, neither the September 2, 1997 or October 20, 1997 statements constitute a claim to reopen the previously denied issue of entitlement to service connection for residuals of a neck injury. The next documents received from the Veteran or her representative were letters from the Veteran received on July 20, 1998; August 7, 2001; and May 24, 2002 as well as an application for a clothing allowance received on October 6, 1998. In these documents, the Veteran requested service connection for a skin disorder of her feet and requested a clothing allowance for orthopedic shoes. She did not comment on her neck in any way in any of these documents. As such, the July 20, 1998; August 7, 2001; and May 24, 2002 letters and the October 6, 1998 clothing allowance request do not constitute a claim to reopen the previously denied issue of entitlement to service connection for residuals of a neck injury. The next document received was an appeal status election form received on July 9, 2002, in which the Veteran stated that a recent VA rating decision satisfied her appeal on all issues. The form did not comment on the Veteran's neck in any way. As such, the July 9, 2002 appeal status election form does not constitute a claim to reopen the previously denied issue of entitlement to service connection for residuals of a neck injury Finally, on March 17, 2006, VA received a letter from the Veteran which the RO interpreted as an informal claim to reopen the previously denied issue of entitlement to service connection for residuals of a neck injury. Accordingly, this is the first document which satisfies VA criteria as a claim to reopen the previously denied issue of entitlement to service connection for residuals of a neck injury. 38 C.F.R. § 3.1(p). Again, the general rule regarding effective dates of awards of service connection following a claim to reopen, is that the effective date of the award of service connection shall be the date of receipt of the claim to reopen or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. Accordingly, the date of receipt of the Veteran's claim to reopen the issue of entitlement to service connection for a left arm disorder, March 17, 2006, is the later of the two dates. As such, March 17, 2006, is the appropriate effective date for service connection. Id. As such, there is no basis on which an effective date earlier than March 17, 2006, can be assigned for service connection for residuals of a neck injury. See also 38 C.F.R. § 3.400(b)(2). In reaching this decision, the Board finds that the preponderance of the evidence is against the claim. The evidence of record does not show that the Veteran ever filed a formal or informal claim to reopen the previously denied issue of entitlement to service connection for residuals of a neck injury prior to March 17, 2006. Therefore, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Peripheral Neuropathy of the Right Hand The Veteran claims entitlement to an effective date earlier than March 17, 2006, for the grant of service connection for peripheral neuropathy of the right hand. The medical evidence of record shows that the Veteran complained of pain radiating from her neck down her right arm in a VA general medical examination report dated February 10, 1992. While no right arm neurological disorder was diagnosed at that time, such a disorder has been subsequently diagnosed based on similar complaints. As such, providing the Veteran with the benefit of the doubt, February 10, 1992, is the date that the disability arose. However, this does not constitute the date that entitlement to service connection for peripheral neuropathy of the right hand arose for the purposes of determining an effective date. The Veteran's peripheral neuropathy of the right hand was specifically granted as secondary to her service-connected residuals of a neck injury. Service connection is not warranted for a disability which is secondary to a nonservice-connected disability. As such, a disability which is secondary to another disability can only be service-connected once the main disability is itself service-connected. See 38 C.F.R. § 3.310 (2012). In this case, the Veteran's main disability is residuals of a neck injury. As discussed above, that disability became service-connected on March 17, 2006. Therefore, prior to March 17, 2006, the Veteran's peripheral neuropathy of the right hand was secondary to a nonservice-connected disability, and thus not eligible for service-connection. As a result, the Veteran's peripheral neuropathy of the right hand only became eligible for service connection on March 17, 2006. Accordingly, March 17, 2006, is the date entitlement to service connection for peripheral neuropathy of the right hand arose for the purposes of determining an effective date. The general rule regarding effective dates of awards of service connection, is that the effective date of the award of service connection shall 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. As the date entitlement arose is March 17, 2006, it is therefore not possible to assign an effective date prior to March 17, 2006. As such, March 17, 2006, is the appropriate effective date for service connection for peripheral neuropathy of the right hand. Id. As such, there is no basis on which an effective date earlier than March 17, 2006, can be assigned for service connection for peripheral neuropathy of the right hand. See also 38 C.F.R. § 3.400(b)(2). In reaching this decision, the Board finds that the preponderance of the evidence is against the claim. The evidence of record does not show that entitlement to service connection for peripheral neuropathy of the right hand arose prior to March 17, 2006. Therefore, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. 49. Optical Migraines As discussed above, the July 1992 rating decision specifically granted the issue of service connection for visual problems, which included the Veteran's symptoms of an ophthalmic migraine. As such, service connection has been in effect for visual problems since November 4, 1991, and the February 2007 rating decision which granted service connection for ocular migraine headaches was in effect simply granting a separate compensable rating for another aspect of the Veteran's already service-connected visual problems. The Board notes that the RO has adjudicated this issue on the basis of the effective date assigned for a direct grant of service connection. However, due to the fact that service connection for visual problems had already been in effect since November 4, 1991, the Board finds that the Veteran's claim warrants consideration on the basis of the effective date assigned for increased evaluation claims, rather than a claim for an earlier effective date for service connection. Regardless of the interpretation of the origin of the claim on appeal, as the regulations for effective dates for increased evaluation claims allow for effective dates earlier than is possible for service connection claims, there is no prejudice to the Veteran for the Board to consider the claim under the increased evaluation regulations. 38 C.F.R. § 3.400. Under the general rule, the effective date is the later of the date of claim or the date entitlement arose. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(o)(1). Here, the date of receipt of the claim as determined by the RO was March 17, 2006. A review of the claims file indicates that no other documents or communications of record may be interpreted as a formal or informal claim for an increased evaluation between the June 1993 rating decision, which last evaluated the rating assigned for the Veteran's visual problems, and the March 17, 2006 claim. See 38 C.F.R. § 3.1(p), 3.155(a); see also Servello, 3 Vet. App. at 198. While many documents were received from the Veteran during this time period, none of them mentioned any eye disorder of any kind, let alone in a manner indicating an intent to apply for an increased or separate rating. Accordingly, there are no documents of record dated prior to March 17, 2006 which constitute a formal or informal claim for benefits for VA purposes. See 38 C.F.R. § 3.1(p), 3.155(a); see also Servello, 3 Vet. App. at 198. A review of the claims file also indicates that no VA reports of examination or hospitalization may be accepted as an earlier claim for an increased evaluation. While there are multiple VA medical reports dated prior to March 17, 2006, none of them comment on the severity of any visual disorder. Accordingly, they cannot be accepted as a claim for a separate evaluation for ocular migraines prior to March 17, 2006. See 38 C.F.R. § 3.157(b). The Board notes that there are medical records associated with the claims file which discuss and give diagnoses of ocular migraines in April 2004 and March 2005. However, these records are private medical records. As such, they can only be accepted as a claim based on their date of receipt. In this case, the private medical records were received by VA on March 17, 2006, as part of the Veteran's claim. Accordingly, these records also cannot be accepted as a claim for a separate evaluation for ocular migraines prior to March 17, 2006. See Id. In this case, the medical evidence of record shows that the Veteran's optical migraines increased in severity prior to March 17, 2006. Specifically, the April 12, 2004 private medical report stated that the Veteran was experiencing acute ocular migraines after having no episodes over the previous 10 years. However, this evidence was not received by VA prior to March 17, 2006. Accordingly, the date entitlement arose was March 17, 2006, the date of the first medical evidence of an increase in visual disorder symptomatology. Under the general rule, the effective date is the date of claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(o)(1). Accordingly, under the general rule, an effective date prior to March 17, 2006, the date of the Veteran's claim is not warranted. Under the exception, however, an earlier effective date may be granted on the date of a factually ascertainable increase in visual symptomatology, if such increase occurred within the one-year period preceding the date of the claim. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). In this case, the March 30, 2005 private medical report stated that the Veteran had been experiencing daily ocular migraines for several days, after a similar experience approximately a year before. This medical report is dated within one year of the Veteran's March 17, 2006 claim and it demonstrates a level of severity beyond that contemplated by the rating assigned for her visual disorder. 38 C.F.R. § 3.400(o)(2); see Harper, 10 Vet. App at 126-127. Accordingly, it is factually ascertainable that the Veteran's service-connected ocular migraines increased in severity in the one year period prior to March 17, 2006. Accordingly, an effective date of March 30, 2005, for the grant of a separate evaluation for ocular migraines is warranted. In reaching this decision, the Board finds that the preponderance of the evidence is against the claim for an effective date prior to March 30, 2005. The evidence of record does not show that a factually ascertainable increase in visual symptomatology occurred between March 17, 2005, and March 30, 2005. Therefore, the claim for an effective date prior to that assigned herein is denied. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. 49. ORDER The April 30, 1996, Board of Veterans' Appeals decision, which denied service connection for residuals of neck injury, did not contain CUE; the appeal is denied. The July 30, 1992, rating decision, which did not grant a separate evaluation for optical migraines, did not contain CUE; the appeal is denied. An effective date earlier than March 17, 2006, for the grant of service connection for residuals of a neck injury, is denied. An effective date earlier than March 17, 2006, for the grant of service connection for peripheral neuropathy of the right hand, is denied. An effective date of March 30, 2005, but not earlier, for the assignment of a separate rating for ocular migraine headaches, is granted. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs