Citation Nr: 1622461	
Decision Date: 06/03/16    Archive Date: 06/13/16

DOCKET NO.  04-04 846	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Wichita, Kansas


THE ISSUES

1. Entitlement to an effective date prior to February 8, 2011, for the award of service connection for schizophrenia. 

2. Entitlement to service connection for migraine headaches.


REPRESENTATION

Veteran represented by:	Daniel G. Krasnegor, Attorney at Law


ATTORNEY FOR THE BOARD

K. Kardian, Associate Counsel 



INTRODUCTION

The Veteran served on active duty in the Air Force from March 1974 to September 1974. 

This matter comes before the Board of Veterans' Appeals (Board) from September 2005 and November 2013 rating decisions, of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas, which denied service connection for headaches and granted service connection for schizophrenia, respectively.

Previously with regard to the claim for entitlement to service connection for migraine headaches, following the Board's denial in August 2012, the Veteran subsequently appealed the issue to the United States Court of Appeals for Veterans Claims (Court). During the pendency of that appeal, the Veteran and the Secretary for the Department of Veterans Affairs jointly agreed to remand the issue for further development by way of an April 2013 Court order. 

The issue of entitlement to an effective date earlier than February 8, 2011, for the award of service connection for schizophrenia is decided herein, whereas the issue of entitlement to service connection for migraine headaches is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ.


FINDINGS OF FACT

1. In a May 30, 2008 decision, the Board denied reopening a claim for entitlement to service connection for schizophrenia. The Veteran filed a motion to reconsider in September 2008, which the Board denied in June 2009.

2.  The Veteran filed an appeal with the Court of Appeals for Veterans Claims of the May 30, 2008 Board decision, which was later withdrawn by counsel, by way of a Joint Motion for Remand.

3. An application to reopen the claim for service connection for schizophrenia was received on February 8, 2011.  

4. The Veteran did not indicate intent to reopen a claim for entitlement to service connection for schizophrenia prior to February 8, 2011.

5. The Veteran's claim for entitlement to service connection for schizophrenia was reopened and granted on the basis of new and material evidence, other than service department records, that was received in association with the claim filed February 8, 2011. 


CONCLUSIONS OF LAW

1. The May 2008 Board decision which denied reopening a claim for entitlement to service connection for schizophrenia is final. 38 U.S.C.A. §§ 7104(b), 7105 (West 2014); 38 C.F.R. § 20.1100 (2015).

2. An effective date prior to February 8, 2011, is not warranted for the award of service connection for schizophrenia. 38 U.S.C.A. §§ 5110, 7105 (West 2014); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Veterans Claims Assistance Act of 2000 (VCAA)

VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claims. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015).



A. Duty to Notify

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, the evidence VA will obtain on the Veteran's behalf, and the evidence the Veteran is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006).  The record reflects the Veteran was provided all required notice by letter mailed in February 2011, prior to granting the reopening of the Veteran's claim for service connection for schizophrenia in August 2012 and the subsequent adjudication of the claim granting service connection for schizophrenia in November 2013.

With respect to the claim for an earlier effective date, the appeal arises from the Veteran's disagreement with the initial effective date following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). No additional discussion of the duty to notify is therefore required. Therefore, the Board finds that no further action is necessary under the statutory and regulatory duties to notify and assist.

B. Duty to Assist

The duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The RO associated the Veteran's service and private treatment records with the claims file. No other relevant records have been identified and are outstanding relevant to the Veteran's effective date claim. As such, the Board finds VA has satisfied its duty to assist with the procurement of relevant records. 

II. Earlier Effective Date

Generally, the effective date of an award shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. The effective date of an award of compensation for service connection will be the "[d]ay following separation from active service or date entitlement arose if claim is received within 1 year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later." 38 C.F.R. § 3.400(b)(2)  (2014); see also 38 U.S.C.A. § 5110(a) (West 2014); Sears  v. Principi, 16 Vet. App. 244 (2002).

The effective date of an award of disability compensation based on new and material evidence (other than service department records) received after a final disallowance shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(q)(1)(ii). However, new and material evidence received prior to the expiration of the appeal period (one year after notice of the decision is sent) will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. See 38 C.F.R. § 3.156(b) (2015).

Board decisions are final on the date stamped on the face of the decision. 38 C.F.R. § 20.1100 (2015).

The Board notes that effective on March 24, 2015, VA amended its rules as to what constitutes a claim for benefits; such now requires that claims be made on a specific claim form prescribed by the Secretary, which is available online or at the local Regional Office. However, since the present claim for an earlier effective date was pending to the Board prior to March 24, 2015, the rules governing formal/informal claims apply. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a), 3.155.

Prior to March 24, 2015, VA recognized formal and informal claims. A claim is defined 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). An informal claim is any communication or action indicating an intent to apply for one or more benefits, and must identify the benefit sought. 38 C.F.R. § 3.155(a). VA must look to all communications from a claimant that may be interpreted as applications or claims both 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).

Although a claimant need not identify the benefit sought "with specificity," see Servello v. Derwinski, 3 Vet. App. 196, 199-200 (1992), some intent on the part of the Veteran to seek benefits must be demonstrated. See Brannon v. West, 12 Vet. App. 32, 34-35 (1998). See also Talbert v. Brown, 7 Vet. App. 352, 356-7 (1995) (noting that while VA must interpret a claimant's submissions broadly, VA is not required to conjure up issues not raised by claimant). The United States Court of Appeals for the Federal Circuit has emphasized VA has a duty to fully and sympathetically develop a Veteran's claim to its optimum. Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). This duty requires VA to "determine all potential claims raised by the evidence, applying all relevant laws and regulations," Roberson v. West, 251 F.3d 1378, 1384   (Fed. Cir. 2001), and extends to giving a sympathetic reading to all pro se pleadings of record. Szemraj v. Principi, 357 F.3d 1370, 1373   (Fed. Cir. 2004).

III. Analysis

The Veteran contends he is entitled to an effective date prior to February 8, 2011 for the grant of service connection for schizophrenia. Specifically the Veteran contends the effective date for award of service connection for schizophrenia should be September 2008. 

The Veteran was discharged from service in September 1974. He first submitted a claim for service connection for insomnia and a nervous condition in September 1978. A rating decision was issued in November 1978, noting the Veteran had a current diagnosis of schizophrenia with insomnia but denied service connection. See November 1978 Rating Decision. The Veteran again filed a claim in April 1994, for insomnia and a nervous condition. A December 1994 rating decision denied service connection for a nervous condition including posttraumatic stress disorder (PTSD), schizophrenia and insomnia. See December 1994 Rating Decision. The Veteran filed a timely notice of disagreement in February 1995 and again in April 1995. In May 1995, the Veteran clarified on appeal he was seeking service connection for schizophrenia and migraine headaches. In March 1997 the Board remanded the Veteran's claim regarding whether new and material evidence had been submitted to reopen a claim for entitlement to service connection for a psychiatric disability. See March 1997 Remand. A December 1998 Board decision denied reopening the Veteran's claim for service connection for a psychiatric disability, noting the Veteran's claim for schizophrenia. See December 1998 Board decision.

Then, the Veteran filed a claim for a nervous condition in August 2003. See August 2003 Veterans Application for Compensation or Pension.  A January 2004 rating decision denied reopening a claim for a psychiatric disorder with insomnia. See January 2004 Rating Decision. The Veteran timely appealed and the Board denied a claim as to whether new and material evidence had been received to reopen a claim of entitlement to service connection for schizophrenia with insomnia in May 2008. See Board May 2008 decision. The Veteran filed a motion with the Board to reconsider the decision in September 2008. See September 24, 2008 Motion to Reconsider. The motion to reconsider referenced the May 2008 Board decision and noted specific contentions with the Board's May 2008 denial regarding whether new and material evidence as to the Veteran's schizophrenia claim was part of the record. Id.

In June 2009 the Board denied the motion for reconsideration. See June 18, 2009 Board correspondence. The Board noted the motion for reconsideration failed to demonstrate that the May 2008 BVA decision contained obvious error. Id. The Board denied the Veteran's motion for reconsideration, and urged the Veteran to submit additional evidence to the RO, if he sought to reopen the claim. Id.  
The Board notes the Veteran appealed the May 2008 Board decision to the United Stated Court of Appeals for Veterans Claims (Court). While the appeal to the Court was pending, the Veteran filed the motion for reconsideration to the Board, as discussed above, as to the schizophrenia claim, and in February 2009, the Court stayed its proceedings pending Board action on the motion. The motion for reconsideration was denied by the Board in June 2009 and the Court lifted the stay. In December 2009, the Veteran's representative and VA General Counsel filed a joint motion to partially set aside and remand the Board's May 2008 decision. Importantly, the JMR specifically indicated that the issues other than the Board's denial of the Veteran's application to reopen the PTSD claim were not being pursued. In a January 2010 order, the Court granted the joint motion and remanded the PTSD claim to the Board for compliance with the joint motion. The Court dismissed the remaining issues on appeal. In a July 2011 decision, the Board denied the PTSD claim.

Next, the Veteran, through his representative, filed a claim on February 8, 2011 for service connection for schizophrenia. See February 8, 2011 correspondence. In August 2012, the Board reopened the Veteran's claim for service connection for schizophrenia, finding new and material evidence was presented, and remanded the claim for additional development, to include a VA examination. As a result of the findings of that examination, the Board subsequently granted service connection for schizophrenia in a November 2013 Board decision. The Board noted the May 2013 VA examination yielded evidence of schizophrenia and early symptoms of such in-service, linking the Veteran's schizophrenia to his active service. A November 2013 rating decision made the award effective from the date of the claim, February 8, 2011. The Veteran filed a timely notice of disagreement regarding the effective date for service connection for schizophrenia in June 2014. See June 2014 notice of disagreement. In a September 2014 statement of the case and September 2015 supplemental statement of the case the RO denied an earlier effective date for the award of service connection for schizophrenia. This appeal followed. 

To recap, the Board denied service connection for schizophrenia in May 2008.  The Veteran moved the Board to reconsider, which the Board denied in June 2009.  The Veteran filed a timely appeal to the CAVC; however, on agreement of the parties (VA and the Veteran, through counsel), the schizophrenia issue was not pursued. Therefore, the Board's May 2008 decision became final. See 38 38 C.F.R. 
§ 20.1100 (2015).

In the time between the final, May 30, 2008 Board decision and the Veteran's February 8, 2011, informal claim to reopen, the evidence reflects no communication, formal or informal, that could be interpreted as a claim to reopen or for entitlement to service connection for schizophrenia. Nor does the evidence of record reflect that any claim, formal or informal was pending. As such, there is not a signed document of record prior to February 4, 2011 that could reasonably be construed as a claim for service connection for schizophrenia. 38 C.F.R. § 3.151(a). 

The Board does not find that a claim to reopen entitlement to service connection for schizophrenia was pending since September 2008, as argued by the Veteran. The Veteran submitted a motion to reconsider regarding the May 2008 Board decision in September 2008, which was addressed to the Board, and specifically referenced the prior denial by the Board by docket number. See September 2008 Motion to Reconsider. This correspondence was not a claim to reopen entitlement to service connection for schizophrenia, rather the Veteran titled this correspondence a motion to reconsider the Board's May 2008 denial as to service connection for schizophrenia. Further, the Veteran specifically addressed the Board's denial of his claim for schizophrenia with insomnia in his motion and the medical records in evidence relating to his schizophrenia, and if specific records were new and material. Id. There is no further correspondence, of record, from September 2008 in which the Veteran formally or informally made a claim to reopen entitlement to service connection for schizophrenia. The Veteran submitted a letter on September 25, 2008, requesting a copy of the "Federal Benefits for Veterans and Dependents 2008 Edition." See September 25, 2008 correspondence. This correspondence makes no reference to reopening the Veteran's claim for schizophrenia, or seeking service connection for schizophrenia. The Veteran also submitted correspondence in September 2008 regarding medical records and a pending Freedom of Information Act (FOIA) request. See September 8, 2008 correspondence. 
In addition, the Veteran submitted previous correspondence in June 2008 and July 2008, which referenced his pending claims for migraines and adenopathy only. See June 17, 2008 correspondence and July 7, 2008 correspondence.  In the Board's denial of the Veteran's motion to reconsider in June 2009, the Board notified the Veteran that he could submit new and material evidence or a claim to reopen to the RO if he wished to have his claim for schizophrenia reopened. The Veteran failed to do such until correspondence in February 2011. There is no evidence of record which supports that a claim to reopen entitlement to service connection for schizophrenia was pending since September 2008.  

Private treatment records from the Kansas Department of Corrections note ongoing treatment for schizophrenia during the Veteran's incarceration and are part of the claims file. Additional treatment records from the Kansas Department of Corrections were associated with the claims file in August 2008; however, these fail to reference the Veteran's schizophrenia.  Further, no records were submitted prior to February 2011, which could be interpreted as a claim to reopen the Veteran's claim for schizophrenia, nor did these records contain new and material evidence.  Submitted records make no reference to the onset and etiology of the Veteran's schizophrenia or that such began during active duty service. 

Given the foregoing, there is no basis for the assignment of an effective date for the grant of service connection for schizophrenia prior to February 8, 2011. See 38 C.F.R. § 3.400(q)(1)(ii), (r); see also Washington v. Gober, 10 Vet. App. 391, 393   (1997) ("The fact that the appellant had previously submitted claim applications, which had been denied, is not relevant to the assignment of an effective date based on a current application."); Wright v. Gober, 10 Vet. App. 343, 346-47 (1997) (holding that an application that had been previously denied could not preserve an effective date for a later grant of benefits based on a new application).

In conclusion, the preponderance of the evidence is against the claim for an earlier effective date for the award of service connection for schizophrenia. As a result, the criteria for an effective date prior to February 8, 2011 for the grant of service connection for schizophrenia have not been met. See 38 C.F.R. § 3.400; Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).
	

ORDER

Entitlement to an effective date prior to February 8, 2011, for the award of service connection for schizophrenia, is denied. 


REMAND

The Veteran contends he is entitled to service connection for migraine headaches as a result of his active duty service. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Regretfully, another remand is necessary to comply with the Board's November 2013 remand directives and undertake additional development.

The matter was previously before the Board in November 2013, at which time the Board remanded the claim to obtain outstanding treatment records for the Veteran's headache disorder with the Kansas Department of Corrections and afford the Veteran a VA examination. See November 2013 Remand. Additional treatment records from the Kansas Department of Corrections have been associated with the claims files and the Veteran was provided with VA examination in July 2014. 

VA has a duty to assist in the procurement of relevant records. 38 C.F.R. § 3.159 (2015). "Relevant records" to be considered to determine a veteran's eligibility for compensation benefits are those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the Veteran's claim. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). The Veteran has consistently reported receiving treatment for headaches prior to entering active duty service. See July 2, 2008 correspondence. The Board notes that the Veteran previously completed a release of information as to these records but the records request was later withdrawn prior to receiving a response. See March 25, 2009 Authorization and Consent to Release Information.  Attempts must be made now to again obtain these records. 

If VA provides an examination or opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran was provided with VA examination in July 2014. The VA examiner indicated that it was less likely than not that the Veteran's headache disability incurred in or was caused by his active duty service. See July 2014 VA examination. The examiner attributed the Veteran's episodic headaches to stress which occurred prior to active service and have occurred during his incarceration. Id. However, the opinion was inadequate because the examiner failed to address the October 2010 VA examiner's statements regarding the Veteran's in-service headaches and post-service headaches that "could be related".  Further, the examiner failed to address the Veteran's head injury in 2010 while incarcerated and his complaints of headaches as a result of such, as directed in the prior remand.  In addition, the issue of whether there has been aggravation of any potential headache disability pre-existing service has been raised by the record, and must be addressed by the VA examiner. As the VA opinion is inadequate and therefore does not substantially comply with the November 2013 remand directives, the case must again be remanded. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 

Accordingly, the case is REMANDED for the following action:

1. Make all appropriate efforts to obtain and associate with the case file any further medical records (private and/or VA) identified and authorized for release by the Veteran.

Specifically, contact the Veteran and request he identify all facilities, if any, in which he was treated for headaches prior to active service then, request from appropriate sources any outstanding private treatment records. Also, there is an indication the Veteran received treatment at the KU School of Medicine. See March 25, 2009 Authorization and Consent to Release Information.

All actions to obtain the records should be documented. If the records cannot be located or do not exist, a memorandum of unavailability should be associated with the claims file, and the Veteran should be notified and given an opportunity to provide them.

2. After undertaking the development listed above to the extent possible, refer the case to the VA examiner who provided the July 2014 examination for a supplemental opinion. If the same examiner is not available, the claims folder should be forwarded to another clinician. The examiner shall review the Veteran's claims file, to include this remand, review any additional treatment records associated with the claims file and revisit all prior opinions provided. The examiner must answer the following questions: 

a. Does the Veteran have a headache disorder, to which his symptoms are attributable?

b. Is it at least as likely as not (a fifty percent probability or greater) that the Veteran's currently diagnosed headache disorder, began in or is related to his active duty service? 

c. Is there clear and unmistakable evidence (i.e., obvious, manifest, and undebatable) that the Veteran's headache disorder, pre-existed his active duty service? (March 1974 to September 1974).

d. If yes, then was the disability clearly and unmistakably NOT aggravated (i.e. permanently worsened beyond the natural progression of the disability) by the Veteran's active duty service or whether it is clear and unmistakable (i.e., obvious, manifest, and undebatable) that any increase was due to the natural progress of the disorder?

Clear and unmistakable evidence means evidence that cannot be misinterpreted and misunderstood, i.e., it is undebatable. Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in-service."

If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of the bilateral eye disability by the Veteran's active duty service.

Review of the entire claims file is required; however, attention is invited to the Veteran's lay statements that he has experienced headaches since service when he was kicked in the noise while playing basketball. See July 2010 statement. The examiner should also discuss the October 2010 examiner's statement that the Veteran's in-service headaches and post-service headaches "could be related." In addition to the Veteran's post-service complaints of headaches following a head injury while incarcerated, as noted in the October 2010 examination report. 

Note that a lack of documented treatment for headaches in service, while probative, cannot serve as the sole basis for a negative finding. The Veteran's lay contentions must be considered and weighed in making the determination as to whether a nexus exists. 

The term "as likely as not" (at least fifty percent probability) does not mean merely within the realm of medical possibility, rather that the weight of medical evidence both for and against a conclusion such as causation is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 

If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010).

3. Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond.

The appellant has the right to submit additional evidence and argument on the matter 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 2014).



______________________________________________
BETHANY L. BUCK
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs