Citation Nr: 1324465 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 12-12 851 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial compensable rating for headaches. 2. Entitlement to an effective date earlier than December 24, 2003 for the grant of service connection for headaches. (The issue of entitlement to a total disability rating based on individual unemployability (TDIU) will be addressed in a separate decision.) REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney ATTORNEY FOR THE BOARD Jennifer Hwa, Counsel INTRODUCTION The Veteran served on active duty from March 1972 to May 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Pursuant to a January 2011 Board decision, the RO granted service connection and assigned a 0 percent rating for headaches, effective December 24, 2003. The Board notes that the prior January 2011 Board decision that granted service connection for headaches was a panel decision consisting of 3 Veterans Law Judges (VLJs) because the Veteran had had a personal hearing before two separate VLJs during the course of his appeal. However, one of the VLJs whom the Veteran had testified before at a hearing has retired subsequent to the January 2011 Board decision. Additionally, as the Veteran received a full grant of benefits for his claim of service connection for headaches, that claim has been resolved in full. His disagreements with the initial disability rating and effective date assigned to his headache disability constitute new claims that are separate from his previous claim for service connection for headaches. Therefore, single-judge disposition of the Veteran's current claims on appeal is appropriate, and the Board will proceed to adjudicate the claims as such. The Board also notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the documents in such file reveals that certain documents, including VA medical records dated from August 2010 to March 2012, are potentially relevant to the issues on appeal. Thus, the Board has considered these electronic records in its adjudication of the Veteran's case. Any future consideration of this appellant's case should also take into consideration the existence of this electronic record. The issue of entitlement to an initial compensable rating for headaches is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. On January 16, 2001, the Veteran filed a written statement indicating that he sought entitlement to service connection for headaches. 2. The RO did not respond to the Veteran's statement and did not adjudicate entitlement to service connection for headaches. 3. The Veteran filed another claim of entitlement to service connection for headaches on December 24, 2003. 4. Pursuant to a January 2011 Board decision, service connection for headaches was granted in a May 2011 rating decision, effective December 24, 2003. 5. The Veteran's claim for service connection for headaches was pending from the January 16, 2001 informal claim for service connection for headaches until the grant of his claim in May 2011. CONCLUSION OF LAW The criteria for an earlier effective date of January 16, 2001 for the award of service connection for headaches have been met. 38 U.S.C.A. §§ 5101, 5107, 5110, 7105 (West 2002); 38 C.F.R. §§ 3.151, 3.155, 3.160(c), 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, in a January 2006 pre-adjudication letter, the RO advised the Veteran of what information and evidence is needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by him and what information and evidence will be obtained by VA. A March 2006 letter also advised the Veteran of how effective dates are assigned, and the type of evidence which impacts that determination. Additionally, the appeal arises from the initial award of service connection. In Dingess, the Court held that in cases in which service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 490-91; see also 38 C.F.R. § 3.159(b)(3)(i) (2012). Thus, because the notice that was provided before service connection was granted was sufficient, VA's duty to notify in this case has been satisfied. See generally Turk v. Peake, 21 Vet. App. 565 (2008) (where a party appeals from an original assignment of a disability rating, the claim is classified as an original claim, rather than as one for an increased rating); see also Shipwash v. Brown, 8 Vet. App. 218, 225 (1995); see also Fenderson v. West, 12 Vet. App. 119 (1999) (establishing that initial appeals of a disability rating for a service-connected disability fall under the category of "original claims"). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, VA treatment records, VA examination reports, private treatment records, Social Security Administration records, and the Veteran's statements. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Moreover, the nature of the claim for an earlier effective date is based upon evidence already contained in the claims file, and the Veteran's argument centers around evidence in the claims file. Any error in the sequence of events or content of the notice is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis Generally, a specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid 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) , 3.160 (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 claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui generis may be considered an informal claim. Such an informal claim must identify the benefits 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 claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a) (2012). The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 (West 2002) and 38 C.F.R. § 3.400 (2012). Unless specifically provided otherwise, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400(b)(2) (2012). However, if a claim is received within one year from the date of discharge or release from service, the effective date of an award for disability compensation to a veteran shall be the day following the date of discharge or release. 38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2) (2012); see also Wright v. Gober, 10 Vet. App. 343, 346-48 (1997). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran contends that the effective date for the grant of service connection for his headaches should be January 16, 2001 because that is the date he filed an informal claim for service connection for headaches. The Veteran filed a claim of entitlement to service connection for headaches on December 24, 2003, more than one year after his separation from active service in May 1974. Where a claim has been filed more than one year after the date of separation from service, the effective date of service connection is the date of the receipt of the claim, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b) (2012). Here, the record reflects that the Veteran had injured his head in a January 1974 jeep accident during service and that he had experienced headaches continuously since this accident. Post-service VA and private medical records dated from March 1997 to September 2007 also show that the Veteran received periodic treatment for constant, recurrent headaches. A March 1997 private medical report indicates that the Veteran received treatment for shoulder disabilities, but also notes that the Veteran had had a head injury in his past medical history. Thus, in this case, the later date is the date the claim for service connection was received. With regard to whether an informal or formal claim, or written intent to file a claim for service connection for headaches was filed prior to December 24, 2003, the Board finds that the Veteran filed an informal claim for service connection in January 2001. On January 16, 2001, the Veteran filed a written statement indicating that he sought to file an informal claim for service connection for headaches secondary to his in-service jeep accident. The RO did not respond to the Veteran's statement and did not adjudicate entitlement to service connection for headaches. The Board finds that the January 2001 statement from the Veteran was an earlier claim that was not adjudicated and thus remained open and pending. Ingram v. Nicholson, 21 Vet. App. 232 (2007) (a reasonably raised claim remains pending until there is an explicit adjudication of a subsequent claim for the same disability); Juarez v. Peake, 21 Vet. App. 537 (2008); Hanson v. Brown, 9 Vet. App. 29 (1996) (once claim is filed it remains open and pending until final action is taken or it is withdrawn); 38 C.F.R. § 3.160(c) (2012) (defining pending claim as application that has not been finally adjudicated). In light of the foregoing, the Board finds that on January 16, 2001, when he filed his informal claim for service connection, the evidence showed that the Veteran had a headache disability that first manifested during or as a result of his service. Thus, because the claim remained pending, an effective date of January 16, 2001, but not earlier, is warranted for the grant of service connection for headaches. The Board finds that an effective date earlier than January 16, 2001, is not warranted because the evidence does not show that any claim, formal or informal, was received by VA following one year after discharge from service and prior to January 16, 2001. Therefore, the Board finds that an effective date of January 16, 2001, is warranted. Reasonable doubt has been resolved in favor of the Veteran in making this decision. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An earlier effective date of January 16, 2001 for the grant of service connection for headaches is granted. REMAND After a review of the record, the Board observes that further development is required prior to adjudicating the Veteran's claim for an initial compensable rating for headaches. The Veteran was last afforded a VA examination for his headaches in May 2011, over 2 years ago. When available evidence is too old for an adequate evaluation of the Veteran's current condition, VA's duty to assist includes providing a new examination. Weggenmann v. Brown, 5 Vet. App. 281 (1993). Although the last VA examination is not unduly remote, the Veteran's representative argues that the previous examinations are inadequate for rating purposes. Specifically, on VA general examination in May 2011, the examiner found that the Veteran's headaches were severe and occurred 5 to 6 times a week. He reported that the Veteran also suffered from prostrating attacks of his headache disability but did not indicate the frequency of those prostrating attacks. Given the evidence outlined above, the Board finds that a new examination is needed to fully and fairly evaluate the Veteran's claim for a higher initial rating. Allday v. Brown, 7 Vet. App. 517 (1995) (where the record does not adequately reveal current state of disability, fulfillment of duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since previous examination); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a neurological examination to determine the current severity of his headaches. The examiner must review the claims folder in conjunction with the examination. All indicated tests should be performed and the results reported. The examiner should describe all symptomatology related to the Veteran's service-connected headaches. The examiner should also describe the severity, duration, and frequency of the headaches. If the Veteran is found to have prostrating attacks of headaches, the examiner should report the frequency of these prostrating attacks. The examiner should also determine whether the Veteran's headaches are productive of severe economic inadaptability. A rationale for any opinion expressed should be provided. 2. After the development requested above as well as any additional development deemed necessary has been completed, the record should again be reviewed to determine the rating to be assigned for the Veteran's headache disability. If the benefits sought on appeal remain denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter or 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). ______________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs