Citation Nr: 1337196 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 10-11 293 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an effective date earlier than July 19, 2007, for a 30 percent evaluation for ocular migraine headaches. ATTORNEY FOR THE BOARD Jonathan Tracy, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1998 to April 2003. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction of the Veteran's claim has been transferred to the RO in Houston, Texas. The Veteran was scheduled for a Travel Board hearing in October 2013, to which he failed to report. Accordingly, the Board considers the Veteran's request for a hearing to be withdrawn and will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704(d), (e). FINDINGS OF FACT 1. The Veteran's current claim for an increased rating for ocular migraine headaches was received on July 19, 2007. 2. There is no evidence of record, during the year prior to July 19, 2007, which demonstrates that it is factually ascertainable that an increase in disability occurred so that the Veteran became entitled to a 30 percent disability rating for his ocular migraine headaches. CONCLUSION OF LAW The criteria for an effective date prior to July 19, 2007 for the award of a 30 percent disability rating for service-connected ocular migraine headaches have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.400 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are described in 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 and 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and notify the claimant and his or her representative, if any, of what information and evidence not already provided, if any, is necessary to substantiate, or will assist in substantiating, each of the five elements of the claim including notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board notes that the issues on appeal arise from the Veteran's disagreement with the effective dates assigned for the increased evaluation of his service-connected ocular migraine headaches. The RO provided the Veteran with specific notice as to establishing entitlement to higher disability ratings in October 2007. In that notice, he was also advised of how VA determines effective dates. The Board finds that VA's obligation to notify the Veteran was met. Consequently, no further notice is necessary and there is no prejudice to the Veteran. With respect to VA's duty to assist, 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 evidence relevant to his claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. The Veteran was afforded VA examinations on his claim for an increased disability rating in February 2008 and August 2011. In addition, the Board notes that the Veteran was previously examined in June 2003 for this disability. The Board finds that the examination reports are complete and adequate for rating purposes as they provide all relevant information needed to evaluate the Veteran's service-connected disability. Thus, the Board finds that VA has satisfied its duties to inform and assist the Veteran at every stage of this case. Additional efforts to assist or notify him would serve no useful purpose. 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 an effective date earlier than July 19, 2007, for the assignment of a 30 percent rating for ocular migraine headaches. The provisions governing the assignment of the effective date of a rating are set forth in 38 U.S.C.A. § 5110(a) and (b)(2), and 38 C.F.R. § 3.400(o). The general rule with respect to the effective date of an award of compensation is the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(o)(1). The only exception to that rule regarding increased ratings applies under circumstances where the evidence demonstrates that it is factually ascertainable that an increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. If an increase in disability occurred within one-year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C.A. § 5110(b)(2); Dalton v. Nicholson, 21 Vet. App. 23 (2007); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o)(1)(2); VAOPGCPREC 12-98 (1998). Any communication or action, indicating an intent to apply for VA benefits from a claimant, his duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). The date of receipt of evidence from a private physician or a lay person will be accepted when the evidence furnished by or in behalf of the claimant is within the competence of the physician or lay person and shows a reasonable possibility of entitlement to benefits. 38 C.F.R. § 3.157(b)(2). Also, the date of VA outpatient or hospital examination, or the date of admission to a VA or uniformed services hospital, will be accepted as the date of receipt of a claim when the report of such treatment or examination relates to a disability for which increased compensation is sought. 38 C.F.R. § 3.157(b)(1). Based on a review of the evidence, the Board concludes that an effective date earlier than July 17, 2007, for the assignment of a 30 percent rating for ocular migraine headaches is not warranted. The Veteran received a VA examination for his ocular migraine headaches in June 2003. The examiner noted the Veteran's condition began in service but concluded that the condition was "more of a potential problem than an actual problem." Based on this opinion, the Veteran's disability was rated as noncompensable by the RO in July 2003. There is no contention that the Veteran appealed the July 2003 rating decision that assigned a noncompensable rating for ocular migraine headaches. The July 2003 determination is final. In finding that the July 2003 rating decision is final, the Board is cognizant of the recent holding of the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Bond v. Shinseki, 659 F.3d 1362 (2011). In that case, the Federal Circuit found that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions during relevant time periods to determine whether they contain new and material evidence relevant to a pending claim, even if the new submission may support a new claim. Bond v. Shinseki, 659 F.3d 1362 (2012). Here, no additional evidence pertinent to the issue of the severity of the Veteran's ocular migraine headaches was received within a year of the July 2003 rating decision. The July 2003 rating decision is thus final. As such, entitlement to an earlier effective date for a 30 percent rating for ocular migraine headaches is not warranted on this basis. A claim for an increased rating for ocular migraine headaches was received by the RO on July 19, 2007. A review of the claims file fails to show that any claim was received between the July 2003 rating decision awarding service connection with a noncompensable rating and the July 19, 2007, increased rating claim. As no claim was filed prior to July 19, 2007, an earlier effective date based on an earlier claim is not warranted. As the July 2003 rating decision is final and as no claim was received prior to July 19, 2007, the Veteran can only be granted an earlier effective date if there is medical evidence of record within the one year period prior to July 19, 2007, showing that the 30 percent rating was warranted. In this case, there is no evidence in the file between July 2003 and July 19, 2007. In fact, the Veteran himself does not contend that the increase in severity occurred during the year preceding his claim. Therefore, an earlier effective date based on evidence showing that an increase in disability has occurred in the one year prior to the August 23, 2002, claim is not warranted. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to an effective date earlier than July 19, 2007, for the assignment of a 30 percent rating for ocular migraine headaches is denied. See 38 U.S.C.A.§ 5107. ORDER Entitlement to an effective date earlier than July 19, 2007, for the award of a 30 percent disability rating for service-connected ocular migraine headaches is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs