Citation Nr: 18153699 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 17-11 682 DATE: November 28, 2018 ORDER Entitlement to an effective date earlier than January 5, 2014, for the award of a 50 percent rating for cluster headaches is denied. REMANDED Entitlement to a rating in excess of 50 percent for cluster headaches is remanded. FINDING OF FACT Prior to January 5, 2014, it was not factually ascertainable that the Veteran’s cluster headaches warranted a rating in excess of 30 percent; entitlement to a 50 percent rating arose on that date. CONCLUSION OF LAW The criteria for an effective date earlier than January 5, 2014, for the award of a 50 percent rating for cluster headaches are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from September 1990 to November 1993 and from June 1996 to April 2007. The Veteran was awarded a 50 percent rating for his service-connected cluster headaches, effective from January 5, 2014. He filed a notice of disagreement (NOD) with the effective date assigned (see November 2015 NOD), although he has not offered any contentions as to why he feels an earlier effective date is warranted. Generally, the effective date of an award based on an original claim, a claim reopened after a final disallowance, or a claim for increase, will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. An exception to this rule applies, however, under circumstances where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. See 38 C.F.R. § 3.400(o)(2). In that regard, the law provides that the effective date of an award shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred (not necessarily the date of receipt of the evidence) if application is received within one year from such date. Id. Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form. The amendments also eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). The amended regulations, however, apply only to claims filed on or after March 24, 2015. Prior to the March 24, 2015, amendment, VA accepted both formal and informal claims. An informal claim was any communication or action indicating intent to apply for one or more benefits. 38 C.F.R. § 3.155(a). There is no set form that an informal written claim must take. All that is required is that the communication indicates an intent to apply for one or more benefits under the laws administered by VA, and identifies the benefits sought. Rodriguez v. West, 189 F.3d 1351 (1999). Additionally, for claims filed before March 24, 2015, 38 C.F.R. § 3.157(b) indicated that once a claim for compensation had been allowed, receipt of a VA outpatient or hospital examination or admission to a VA hospital would be accepted as an informal claim for increased benefits. See MacPhee v. Nicholson, 459 F.3d 1323 (Fed. Cir. 2006); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). For decisions on or after July 21, 1992, VA treatment records are considered to be in constructive possession of VA adjudicators on the date they were created, regardless of whether they were physically in the claims file. Bell v. Derwinski, 2 Vet. App. 611, 612-13 (1992). The Veteran was initially granted service connection and assigned a 10 percent rating for cluster headaches in April 2007. His rating was increased to 30 percent in an April 2012 rating decision, and the Veteran was notified of that decision in May 2012. In correspondence received in November 2012, the Veteran indicated he was content with the 30 percent rating assigned for his cluster headaches and was withdrawing his appeal related to this disability. At that same time, the Veteran simultaneously filed a new claim for benefits. See November 2012 VA Form 21-0820, Report of General Information. In the course of developing and adjudicating those claims, VA obtained an additional VA examination concerning the Veteran’s cluster headaches. Based on the findings reported during that June 2013 VA examination, VA issued an October 2013 rating decision proposing to reduce the rating assigned for the Veteran’s cluster headaches from 30 percent to 0 percent. He was notified of that decision in November 2013. In a December 2013 letter, the Veteran disagreed with the proposed reduction and stated, “My headaches have NOT gotten any better nor has anything changed.” Thereafter, a May 2014 rating decision effectuated the proposed reduction, effective August 1, 2014. The Veteran filed an NOD with that decision in October 2014. After he submitted additional evidence in support of his claim (namely, a Disability Benefits Questionnaire (DBQ) from his private neurologist, signed January 5, 2014), the Veteran was issued an August 2015 rating decision in which he was granted a 50 percent rating for his cluster headaches, effective from January 5, 2014 (the date of his private DBQ). As noted, the Veteran has filed an NOD with the effective date assigned for his 50 percent rating. As an initial matter, the Board notes that the Veteran’s award of an increased 50 percent rating for his cluster headaches was not based on any claim filed by him. Instead, as described above, it stemmed from a decision to reduce the Veteran’s rating based on additional evidence/information received as part of the development that was undertaken to address his other claim for benefits that was received in November 2012. At that time, the Veteran also indicated satisfaction with the 30 percent rating that had been previously assigned in a May 2012 rating decision for his cluster headaches. Under these circumstances, the Board has reviewed the record to determine whether at any time since the May 2012 rating decision and January 5, 2014, it indicates that a 50 percent rating was warranted for the Veteran’s cluster headaches. The first indication of record that the Veteran’s cluster headaches had worsened since the 30 percent rating was in the January 5, 2014 DBQ. In that report, the private neurologist noted the Veteran had headache pain that consisted of constant head pain, pulsating or throbbing head pain, pain localized to one side of the head, and pain that worsened with physical activity. He also noted that the Veteran experienced non-headache symptoms associated with his headaches, such as nausea, sensitivity to light, sensitivity to sound, and changes in vision. His head pain typically lasted more than 2 days and was located on the right side of his head. The Veteran also experienced characteristic prostrating attacks of migraine headache pain more frequently than once a month as well as very frequent prostrating and prolonged attacks of migraine and non-migraine headache pain. Finally, the private neurologist noted that during the Veteran’s clusters of headaches, he would not be able to function. By contrast, during the June 2013 VA examination, the Veteran’s headache pain was manifested solely by pulsating or throbbing head pain and pain on both sides of the head, which was noted to typically last less than one day. The Veteran did not experience any non-headache symptoms associated with his headaches. He also did not have characteristic prostrating attacks of migraine headache pain or prostrating attacks of non-migraine headaches. The examiner further indicated that the Veteran’s headache condition did not impact his ability to work. The June 2013 VA examination findings are supported by the Veteran’s VA treatment records which show that, during that time, he received periodic follow-up treatment for his cluster headaches as well as prescription medicine management, particularly as he experienced cluster headache cycles. They do not indicate any overall worsening in his disability picture prior to January 5, 2014. Notably, in the December 2013 letter, in which the Veteran disagreed with the proposed reduction of his cluster headaches rating from 30 percent to 0 percent, he indicated that although his headache disability had not gotten better, it also had not changed. It was not until a February 2015 letter that the Veteran stated, “If anything, [the headache disability] has become worse.” It was at that time that he also supplied the DBQ from his private neurologist, signed January 5, 2014. Considering that effective dates are awarded based on the date of receipt of claim or the date entitlement arose, whichever is later, the Board finds that the Veteran’s 50 percent rating for his service-connected cluster headaches was appropriately assigned from January 5, 2014, the date of his private DBQ, as this was the date his entitlement to the increased rating is shown to have arose and is the later date. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. REASONS FOR REMAND In the August 2015 rating decision on appeal, the Veteran was awarded an increased rating of 50 percent for his cluster headaches, effective January 5, 2014. In November 2015, the Veteran filed an NOD with that decision indicating that he disagreed with both the effective date of the award and evaluation of disability. The Veteran’s disagreement with the effective date assigned for his award of a 50 percent rating was addressed in an October 2016 statement of the case (SOC), which was subsequently appealed and has been addressed by the Board herein. However, as was noted in an October 2017 deferred rating decision, the Veteran also disagreed with the 50 percent rating assigned for his cluster headaches and he has not been issued an SOC in that matter. Accordingly, the claim for an increased rating is being remanded for the issuance of an SOC. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The matter is REMANDED for the following action: Send the Veteran an SOC that addresses the issue of entitlement to a rating in excess of 50 percent for cluster headaches. If the Veteran perfects an appeal by submitting a timely VA Form 9, substantive appeal, the issue should be returned to the Board for further appellate consideration. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R.Vemulapalli, Associate Counsel