Citation Nr: 1330081 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 09-26 298 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for a headache disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran served on active duty from September 1999 to November 2000. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which, in part, denied claims of entitlement to service connection for a psychiatric disorder, hearing loss, and headaches. But in August 2011, during the pendency of the appeal, the RO granted service connection for depressive disorder, not otherwise specified (NOS), and for panic disorder without agoraphobia, and assigned an initial 30 percent rating for this disability retroactively effective from January 22, 2008. The Veteran did not in response separately appeal that initial rating or effective date, so that claim is no longer at issue. See Grantham v. Brown, 114 F. 3d 1156 (Fed Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement (NOD) thereafter must be timely filed to initiate appellate review of the claim concerning "downstream" issues such as the compensation level assigned for the disability and effective date). In support of the remaining claims, the Veteran testified at a videoconference hearing in February 2012 before the undersigned Veterans Law Judge (VLJ) of the Board. The Board subsequently, in May 2012, issued a decision denying the claim of entitlement to service connection for hearing loss, but instead remanding the claim for headaches to the RO via the Appeals Management Center (AMC) for further development and consideration. Once the development directed in the Board's remand was completed, the AMC issued a November 2012 rating decision granting the claim of entitlement to service connection for a headache disability and assigning a "staged" rating, meaning different ratings for different periods of time. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Specifically, a 0 percent (i.e., noncompensable) rating was assigned from December 28, 2007 to May 31, 2012, and a higher 50 percent rating beginning on June 1, 2012. For reasons that are unclear, the AMC returned the claims file to the Board apparently for further appellate consideration, even though this claim was granted on remand and, by all indications, the Veteran has not separately appealed either these initial ratings or effective dates. See again Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (indicating he has to separately appeal these "downstream" issues). Thus, this appeal must be dismissed since there is no remaining dispute or controversy concerning this claim and this was the only remaining claim on appeal. That said, additional issues of entitlement to service connection for tinnitus and to a total disability rating based on individual unemployability (TDIU) have been raised by the record and were noted in the Board's May 2012 decision and remand, but still have not been initially adjudicated by the RO/AMC as the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over these claims so is again referring them to the RO/AMC for appropriate action. Please also 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. In a November 2012 rating decision, on remand, the AMC granted service connection for a headache disability and assigned a 0 percent (i.e., noncompensable) rating from December 28, 2007 to May 31, 2012, and a higher 50 percent rating beginning on June 1, 2012. 2. The Veteran has not since contested either these ratings or effective dates, so there is no longer a controversy on the question of his entitlement to service connection for a headache disability and no separate appeal of the "downstream" issues concerning the ratings and effective dates assigned for this now service-connected disability. CONCLUSION OF LAW There is no justiciable case or controversy on appeal before the Board with respect to the claim of entitlement to service connection for a headache disability. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. § 20.101 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a complete or substantially complete application for benefits, VA has an obligation to notify the claimant of the information and evidence needed to substantiate the claim, including apprising him of his and VA's respective responsibilities in obtaining this supporting evidence, as well as a duty to assist him in fully developing the claim by making reasonable efforts to obtain all potentially relevant evidence and having him undergo a VA examination for a medical opinion when needed to fairly decide the claim. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In this particular case at hand, however, the benefit sought on appeal has been granted. Thus, there is no remaining case or controversy for the Board to decide. Therefore, no discussion is required as concerning whether there was compliance with these duty-to-notify-and-assist obligations. Indeed, since the requested benefit was allowed, even if for the sake of argument there was not this required notice and assistance, this would be inconsequential and therefore ultimately, at most, amount to nonprejudicial, i.e., harmless error since the Veteran is receiving the requested benefit, regardless. 38 C.F.R. § 20.1102 (2013). See also Shinseki v. Sanders, 556 U.S. 396, 407, 410 (2009) (clarifying that VCAA notice and assistance errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on an individual case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran has this burden of proof of not only establishing error but also, above and beyond that, of showing how it is unduly prejudicial, meaning outcome determinative of his claim). The Veteran perfected an appeal of the September 2008 rating decision that, in part, denied his claim of entitlement to service connection for a headache disability. In the November 2012 rating decision since issued during the pendency of the appeal of this claim, more specifically, while this claim was on remand, the AMC granted service connection for a headache disability. Because the benefit sought on appeal was granted, there is no remaining controversy as to whether service connection should be granted for a headache disability. See 38 U.S.C.A. §§ 7104, 7105(d)(5) (West 2002); 38 C.F.R. § 20.101 (2013). As to whether there is any "downstream" issue before the Board regarding the ratings assigned or their effective dates, the Veteran has not, at least as of yet, separately appealed these issues and until he has appealed these additional issues they are not before the Board for consideration. See Grantham, supra. In a Report of General Information in July 2013, the Veteran called RO and indicated he was adding new issues to his "pending claim", but there is no record of a pending claim in his claims file or any of the electronic records contained in his Virtual VA claims file. ORDER The claim of entitlement to service connection for a headache disability is dismissed. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs