Citation Nr: 1805675	
Decision Date: 01/29/18    Archive Date: 02/07/18

DOCKET NO.  11-21 086	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1. Entitlement to an effective date prior to October 14, 2009, for the award of service connection for migraines.

2. Whether the reduction of the Veteran's service-connected migraines from 30 percent to a noncompensable rating effective March 25, 2016, was proper.

3. Entitlement to an initial compensable rating prior to October 29, 2013, and in excess of 30 percent thereafter for migraines.


REPRESENTATION

Veteran represented by:	Disabled American Veterans




ATTORNEY FOR THE BOARD

C. Wendell, Associate Counsel


INTRODUCTION

The Veteran served on active duty from March 1987 to December 1991.

This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).

By way of background, the RO granted service connection for migraine headaches in an October 2013 rating decision, assigning a noncompensable rating prior to October 29, 2013, and a 30 percent rating from that date forward. In a June 2015 remand, the Board determined that the Veteran had filed a valid notice of disagreement as to the effective dates and disability ratings assigned for the migraines in the October 2013 rating decision, and requested that a statement of the case be issued adjudicating those issues. The statement of the case was issued in June 2016, and the Veteran perfected an appeal in August 2016.

During the course of the appeal, in a July 2016 rating decision the RO reduced the Veteran's rating for her migraines from 30 percent to a noncompensable rating, effective March 25, 2016. As that reduction occurred during the course of the Veteran's increased rating claim, the first issue on appeal is whether the July 2016 rating reduction was proper. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992); Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). Further, as the Veteran has continued to express disagreement with the assigned ratings, the increased rating claim also remains on appeal. The issues have been re-characterized on the title page to more accurately reflect the issues on appeal in light of the above procedural history.

As noted, the Board remanded the issues of entitlement an earlier effective date for the award of service connection for migraines and entitlement to an increased rating for migraines for the issuance of a statement of the case in June 2015. The statement of the case having been provided, the directives having been substantially complied with and the matter again is before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998).

In the above-mentioned July 2016 rating decision, the RO granted service connection for a generalized anxiety disorder and assigned a 30 percent rating. The Veteran, through her then-representative, filed a notice of disagreement in February 2017. The Veteran then subsequently submitted an October 2017 statement in which she indicated she wished to withdraw the February 2017 notice of disagreement. 38 C.F.R. § 20.204. The RO requested clarification in November 2017. In January 2018 email correspondence, the Veteran's current representative confirmed her desire to withdraw the February 2017 appeal. As the Veteran's intent to withdraw that appeal has been confirmed, a remand for the issuance of a statement of the case on that issue is not warranted. See Manlincon v. West, 12 Vet. App. 238 (1999).

The Board also notes that in November 2017 the Veteran requested that copies of her substantive appeal and the June 2015 Board decision be forwarded to her. While this has not been directly responded to, the November 2017 request is duplicative of a September 2017 records request which was fulfilled in October 2017. There is no evidence that the records sent in October 2017 were returned as undeliverable. As the November 2017 request is duplicative of an already fulfilled records request, the Board may proceed with the adjudication of the issues herein.

The issue of entitlement to an increased rating for migraines is REMANDED to the Agency of Original Jurisdiction (AOJ).




FINDINGS OF FACT

1. The Veteran's original claim for entitlement to service connection for migraines arose from an October 14, 2009, claim, more than one year after her separation from service, and in an October 2013 rating decision service connection was granted effective October 14, 2009.

2. Prior to the October 14, 2009, claim, there were no pending requests for service connection for migraines that remained unadjudicated.

3. At the time of the July 2016 reduction, the evidence failed to establish that the objective improvement in the migraines actually reflected an increase in the Veteran's ability to function at work and home.


CONCLUSIONS OF LAW

1. The criteria for an effective date prior to October 14, 2009, for the award of service connection for migraines have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.114, 3.155, 3.156, 3.400 (2017).

2. The reduction in the rating for migraines from 30 percent to a noncompensable rating effective March 25, 2016, was improper, and restoration of the prior rating is warranted. 38 U.S.C. §§ 1155, 5107, 5112 (2012); 38 C.F.R. §§ 3.105(e), 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8100 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Effective Date of Service Connection

Unless specifically provided otherwise, the effective date of an award based on a claim for compensation is to be fixed in accordance with the facts found, but not earlier than the date the claim was received. 38 U.S.C. § 5110(a). For claims for disability compensation filed within one year of the Veteran's separation from service, the effective date of an award of disability compensation will be the day following the date of the veteran's discharge. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2). 

During the pendency of the appeal the definition of what constitutes a valid claim has changed. Effective March 24, 2015, VA amended its regulations to require that in order to be considered a valid claim, a claim for benefits must be submitted on a standardized form. 79 Fed. Reg. 57,660 (Sept. 25, 2014) (eff. Mar. 24, 2015). However, this amendment only applies to claims or appeals filed on or after March 24, 2015. Id. at 57,686. Claims or appeals pending before VA on that date are to be decided based on the regulations as they existed prior to the amendment. Id. As the Veteran's claim for an earlier effective date was pending on March 24, 2015, the Board will apply the laws and regulations as they existed prior to the amendment in determining whether a submission constituted a claim for benefits. Id. 

Under the law prior to the amendment, a claim was 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) (2009) (amended 2015). An informal claim was any communication or action indicating an intent to apply for one or more benefits that identifies the benefit sought. 38 C.F.R. § 3.155(a) (2009) (repealed 2015). Under the law at the time, VA had an obligation to look to all communications from a claimant that may be interpreted as applications or claims-formal and informal-for benefits and was required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992).

In this case, the Veteran appealed from the assigned effective date for the grant of service connection for migraines. The Veteran initially filed for service connection for migraines on October 14, 2009, approximately eighteen years after her separation from service. As such, the date following the Veteran's separation from service cannot be used as an effective date. 38 C.F.R. § 3.400(b)(2). 

No formal claim for service connection for migraines was received prior to the October 14, 2009, claim, nor were there any documents that were received that could be construed as expressing an intent to file a claim for benefits or that identifies any desired benefits. 38 C.F.R. § 3.155(a) (2009) (repealed 2015). Indeed, the only documents received by VA from the Veteran prior to her October 14, 2009 claim were two power of attorney forms. As there were no claims for benefits, formal or informal, pending adjudication prior to the October 14, 2009 formal claim and as that claim was not filed within one year of the Veteran's separation from service, there are no grounds for the assignment of an effective date earlier than October 14, 2009, the date of receipt of the Veteran's claim for benefits.

The Board is without authority to grant equitable relief. Rather, the Board is constrained to follow the specific provisions of law that govern the circumstances of this case and that are within the jurisdiction and authority of the Board to review. See 38 U.S.C. § 7104; Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 390, 425 (1994). As such, the Board finds that an effective date earlier than October 14, 2009, for the grant of service connection for migraines is not warranted in this case.

II. Rating Reduction

In any case involving a rating reduction, the fact-finder must ascertain, based upon a review of the entire record, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon a thorough examination. To warrant a reduction, it must be determined not only that an improvement in the disability level has actually occurred, but also that such improvement actually reflects an improvement in the ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 420-21 (1993) (citing 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13).

In addressing whether improvement is shown, the comparison point generally is the last examination on which the rating at issue was assigned or continued. Hohol v. Derwinski, 2 Vet. App. 169 (1992). However, if the rating was continued in order to see if improvement was in fact shown, the comparison point could include prior examinations as well. Collier v. Derwinski, 2 Vet. App. 247 (1992). The reduction of a rating generally must have been supported by the evidence on file at the time of the reduction, but pertinent post-reduction evidence favorable to restoring the rating must also be considered. Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992).

If there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt shall be resolved in favor of the Veteran. In other words, a rating reduction must be supported by a preponderance of the evidence. 38 U.S.C. § 5107(a); see also Brown, 5 Vet. App. at 421.

The Board notes that VA benefits recipients are to be afforded greater protections in instances where a rating has been in effect at the same level for more than 5 years. 38 C.F.R. § 3.344(a)-(c). In this case, the Veteran was granted the 30 percent rating for her migraines effective October 29, 2013, and was reduced to a noncompensable rating effective March 25, 2016. As such, the Veteran's rating was in effect at the same level for less than five years, and thus the greater protections for benefits in effect for longer than five years are inapplicable in this case. 38 C.F.R. § 3.344(c).

The Veteran was awarded a staged 30 percent rating for her migraines in an October 2013 rating decision, effective October 29, 2013. This award was based on an October 2013 VA examination report which, in pertinent part, indicated that the Veteran's migraines were characterized by characteristic prostrating attacks more frequently than once per month, which is commensurate with the frequency contemplated by a 30 percent rating. 38 C.F.R. § 4.124a, Diagnostic Code 8100. This assessment appears to have been based primarily on the Veteran's own description of her headaches. The examination report reflects that the Veteran reported headaches lasting from four to five hours to three to four days, with headaches characterized by nausea, occasional vomiting, blurred vision and spots approximately twice per month. She further indicated that she needs to lie down and place a damp cloth on her head due to her headaches approximately once per week. 

The RO obtained another VA examination in March 2016. During that examination the Veteran reported headaches approximately every other day, with increasing severity over the last several years. She endorsed migraines approximately one to two times per week with tension headaches on an almost daily basis. The Veteran endorsed nausea, light sensitivity and changes in vision. Based on these statements, the March 2016 examiner stated that there was no evidence of characteristic prostrating attacks. 

In a May 2016 addendum opinion, the March 2016 examiner again reiterated that the headaches are not prostrating, citing to February 2016 and March 2016 treatment records in which the authoring physicians noted that the Veteran's headaches were not prostrating based on her description of them. Based on the March 2016 examination and May 2016 addendum, the RO reduced the rating for the migraines from 30 percent to a noncompensable rating effective March 2016.

Following the effective date of the reduction, another VA examination was obtained in April 2017. The examiner noted that the Veteran reported going to the emergency room two to three times per year, and has headaches characterized by noise and light sensitivity and nausea. The Veteran reported that rest and application of a damp cloth helped relieve the headaches. Based on these statements the examiner indicated that the Veteran had characteristic prostrating attacks less frequently than one every two months.

In October 2017, the Veteran submitted a statement indicating that she has headaches two to three times per week lasting between four hours to several days. The Veteran further endorsed severe pain, issue with her vision, and that her headaches can leave her bedridden. This statement is both competent and credible, and is entitled to probative weight. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). While neither the April 2017 VA examination report nor the October 2017 statement was of record at the time of the reduction, evidence associated with the file following a reduction that is favorable to a restoration must be considered. Dofflemeyer, 2 Vet. App. 277.

As stated above, to warrant a reduction the evidence of record must show an improvement in the disability level, which must be established by a preponderance of the evidence. 38 U.S.C. § 5107(a); Brown, 5 Vet. App. at 420-21. Here, the evidence of record at the time of the rating reduction and thereafter reflects that the Veteran has consistently reported the same frequency and severity of symptomatology, including nausea, light and noise sensitivity, vision impairment, headaches several times per week on average, and the need to lie down or rest during particularly severe headaches.

The only point on which the evidence of record differs significantly concerning the Veteran's headaches is with respect to whether the headaches are manifested by characteristic prostrating attacks, and if so how frequently. Both the October 2013 and April 2017 examiners indicated that there were characteristic prostrating attacks of varying frequency, while the March 2016 examiner and the February 2016 and March 2016 treatment records indicate that the Veteran does not experience characteristic prostrating attacks. 

Based on the foregoing, the Board finds that the preponderance of the evidence does not support a finding that there was objective improvement in the Veteran's symptoms at the time of the reduction. The evidence of record shows, essentially, the same underlying symptoms during the period prior to and immediately following the reduction, with the only variance being a relatively even split of opinions concerning whether there were characteristic prostrating attacks. There is no objective reason to favor one of the opinions concerning the prostrating nature of the Veteran's headaches over another, as the Veteran's underlying symptoms have been substantially the same in all of the examinations. As such, and in the interest of affording the Veteran the benefit of the doubt, the Board finds that the preponderance of the evidence does not show that there was objective improvement in the Veteran's symptoms at the time the reduction was made final. 

The Board finds that the reduction in rating from 30 percent to a noncompensable rating percent, effective March 25, 2016, for migraines was improper, and a restoration of the prior 30 percent rating effective March 25, 2016 is warranted. See 38 C.F.R. §§ 4.2, 4.10; Brown, 5 Vet. App. at 421. 

In light of this restoration, the increased rating issue on appeal is now entitlement to an initial compensable rating prior to October 29, 2013 and in excess of 30 percent thereafter for migraines.


ORDER

Entitlement to an effective date earlier than October 14, 2009, for the award of service connection for migraines is denied.

Restoration of a 30 percent rating for migraines effective March 25, 2016, is granted.


REMAND

The duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). In this case, in October 2017 correspondence the Veteran stated that in 2016 she began receiving private medical treatment for her migraines from Dr. S.N. at Sycamore Kettering Hospital. These treatment records are not associated with the claims file. As such, the Board must remand the issue so that appropriate attempts may be made to obtain the private treatment records.

Accordingly, the case is REMANDED for the following action:

1. Contact the Veteran and request that she submit or authorize for release all private treatment records relevant to her service-connected migraines, to include from Sycamore Kettering Hospital.

All necessary attempts to obtain any records so authorized for release should be made. If the records cannot be located or do not exist, the Veteran should be notified and given opportunity to provide them.

2. Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, she and her representative should be furnished a supplemental statement of the case and afforded the applicable time period in which to respond.

The veteran has the right to submit additional evidence and argument on the 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. §§ 5109B, 7112 (2012).



______________________________________________
Kristin Haddock
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs