Citation Nr: 18156457 Decision Date: 12/10/18 Archive Date: 12/10/18 DOCKET NO. 17-41 994 DATE: December 10, 2018 ORDER 1. Earlier effective date of April 27, 2004, for Lyme disease is granted. 2. Earlier effective date of April 27, 2004, for migraine headaches is granted. FINDINGS OF FACT 1. The Veteran separated from active military service in 2004 and raised claims of entitlement to service connection for Lyme disease and migraine headaches in August 2004, within one year of discharge. 2. The August 2004 claims remained pending before the agency of original jurisdiction (AOJ) until the AOJ granted service connection for Lyme disease and migraine headaches in the March 2005 rating decision. CONCLUSIONS OF LAW 1. The criteria for an effective date of April 27, 2004, for the grant of service connection for Lyme disease have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.156, 3.400. 2. The criteria for an effective date of April 27, 2004, for the grant of service connection for migraine headaches have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.156, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army from August 10, 1998 to April 26, 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which granted service connection for Lyme disease and migraine headaches, retroactively effective from October 19, 2015. Effective Dates for Lyme Disease and Migraine Headaches The Veteran contends that she is entitled to an effective date earlier than October 19, 2015, for the service-connected Lyme disease and migraine headaches. Specifically, she argues that she is entitled to an effective date of April 24, 2004, the day of her military discharge. See July 2017 Correspondence. However, the Board notes that the Veteran’s Certificate of Release form indicates the Veteran was discharged on April 26, 2004. Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be on the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a); 38 C.F.R. §§ 3.400, 3.400(b)(2). The effective date of an evaluation and award of compensation on an original claim for compensation will be the day following separation from active duty service or the date entitlement arose if claim is received within 1 year after separation from service; otherwise, date of receipt of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (b)(2). Appellate review of a rating decision is initiated by a notice of disagreement (NOD) and completed Substantive Appeal after a statement of the case (SOC) has been furnished. 38 U.S.C. § 7105 (a); 38 C.F.R. § 20.200. The current version of 38 C.F.R. § 20.201 prescribes that a specific VA form be utilized in regard to filing a NOD. The requirements of this provision are set forth in the regulation itself. However, that provision became effective September 25, 2014, and the instant matter clearly involves a procedural history with accompanying events prior to that time. Hence, the Board cites the former version of 38 C.F.R. § 20.201 below. Failure to perfect an appeal renders a rating decision final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160 (d), 20.200, 20.302, 20.1103. A regional office decision becomes final “only after the period for appeal has run.” Jennings v. Mansfield, 509 F.3d. 1362, 1368 (Fed. Cir. 2007). A final decision is generally not subject to revision on the same factual basis. 38 C.F.R. § 3.104 (a). Previous determinations that are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error (CUE). 38 C.F.R. §§ 3104 (b), 3.105(a). However, a pending claim is an application, formal or informal, which has not been finally adjudicated. 38 C.F.R. § 3.160 (c); Adams v. Shinseki, 568 F.3d. 956, 960 (Fed. Cir. 2009). A finally adjudicated claim is defined as “an application, formal or informal, which has been allowed or disallowed by an agency of original jurisdiction.” 38 C.F.R. § 3.160 (d). Such an action becomes “final” by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earliest. Id. The pending claims doctrine provides that a claim remains pending in the adjudication process-even for years-if VA fails to act on it. Norris v. West, 12 Vet. App. 413, 422 (1999). The Court has confirmed that raising a pending claim theory in connection with a challenge to the effective-date decision is procedurally proper. Ingram v. Nicholson, 21 Vet. App. 232, 249, 255 (2007) (recent Federal Circuit cases have not overruled the pending claim doctrine articulated in Norris); Myers v. Principi, 16 Vet. App. 228, 236 (2002) (since VA failed to issue SOC after valid NOD was filed, the original claim was still pending and is relevant to determining the effective date of a service connection award); McGrath v. Gober, 14 Vet. App. 28, 35 (2000) (a claim that has not been finally adjudicated remains pending for purposes of determining the effective date for that disability). In this case, the Veteran was separated from her active duty service on August 26, 2004. See Certificate of Release or Discharge from Active Duty. The Veteran filed a claim for compensation for her Lyme disease and migraine headaches, which was received by the VA in August 2004, within one year from the Veteran’s separation from service in April 2004. The RO denied the claims in a March 2005 rating decision and the Veteran was notified of the decision in March 2005. The Veteran had one year to file an appeal from the March 2005 rating decision. A review of the record reveals that in October 2005, the Veteran submitted a statement in support of her claim requesting the VA to reopen her disability claims and obtain VA treatment records to support her claims. The Board finds that the Veteran’s October 2005 statement sufficiently meets the definition of a timely NOD. Notably, effective March 24, 2015, VA amended the regulations relevant to what constitutes a proper NOD, establishing a particular form on which the NOD must be filed, and requiring that when the AOJ provides such form with a decision, it is the sole form which can be accepted as a valid NOD. Obviously, in this case, in which the decision occurred prior to the effective date of the regulatory amendment, no such form was provided. In such cases as this, in which the AOJ did not provide the requisite form, the amended regulation provides that a written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the AOJ and a desire to contest the result will constitute a valid NOD. 38 C.F.R. § 20.201 (2005). While special wording is not required, the NOD must be in writing and in terms that can be reasonably construed as a disagreement with that determination and a desire for appellate review. Id. Here, the October 2005 written statement provided by the Veteran was timely and clearly expressed dissatisfaction with the March 2005 rating decision; hence the statement is tantamount to a timely NOD. 38 C.F.R. § 20.201. As such, the Veteran’s claim was pending until the March 2005 rating decision. Therefore, resolving all reasonable doubt in the Veteran’s favor, the Board finds that an earlier effective date of April 27, 2004, the day following her separation from service, is warranted for the grant of section connection for Lyme disease and migraine headaches. 38 C.F.R. § 3.102. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Amanda Purcell, Law Clerk