Citation Nr: 20003297
Decision Date: 01/14/20	Archive Date: 01/14/20

DOCKET NO. 19-28 938
DATE: January 14, 2020

ORDER

The issue of entitlement to an effective date prior to December 11, 2017, a 50 percent rating for post traumatic headaches, to include the issue of entitlement to a rating in excess of 30 percent prior to December 11, 2017, for post traumatic headaches, is dismissed.  

FINDING OF FACT

A November 2019 Board of Veterans’ Appeals (Board) decision denied entitlement to a rating in excess of 30 percent prior to December 11, 2017, for post traumatic headaches.  

CONCLUSION OF LAW

The November 2019 Board decision denying a rating in excess of 30 percent disabling prior to December 11, 2017, for post traumatic headaches is final.  38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.156, 20.1100.  

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active service from August 1954 to July 1956.  

In November 2019, the Board remanded the issues of entitlement to a compensable rating prior to December 11, 2017, and rating in excess of 10 percent on and after December 17, 2017, for traumatic brain injury residuals and a total rating for compensation purposes based on individual unemployability due to service connected disabilities (TDIU) to the Agency of Original Jurisdiction for additional development of the record.  Those issues have not been recertified to the Board.  Therefore, they are not currently before the Board for review and will not be addressed below.  

Earlier Effective Date

In November 2017, the Board remanded the issue of entitlement to a rating in excess of 30 percent for post traumatic headaches to the Agency of Original Jurisdiction for additional development of the record.  In January 2019, the Agency of Original Jurisdiction granted a 50 percent rating for post traumatic headaches, effective December 11, 2017.  

In May 2019, the Veteran submitted a Notice of Disagreement, VA Form 21-0958 with the effective date of the award of a 50 percent rating for the post traumatic headaches.  In September 2019, the Agency of Original Jurisdiction issued a statement of the case to the Veteran which addressed the issue of “entitlement to an earlier effective date, prior to December 11, 2017, for the 50% disabling evaluation for post-traumatic headaches.”  In September 2019, the Veteran submitted an Appeal to the Board, VA Form 9.  In November 2019, the Agency of Original Jurisdiction certified the issue of entitlement to an effective date prior to December 11, 2017, for the award of a 50 percent rating for post-traumatic headaches to the Board.  

In November 2019, the Board denied “entitlement to a rating in excess of 30 percent disabling prior to December 11, 2017, for post traumatic headaches.”  The Board’s decision wholly encompassed the issue of entitlement to an effective date prior to December 11, 2017, for the award of a 50 percent rating for post-traumatic headaches.  The Veteran has not appealed the Board’s decision to the United States Court of Appeals for Veterans Claims.  

Generally, a final Board decision is final when issued and is not subject to revision upon the same factual basis except upon a finding of clear and unmistakable error or unless new and material evidence is presented.  38 U.S.C. §§ 5108, 7104; 38 C.F.R. §§ 3.156, 20.1100.  

The Board finds that the final November 2019 Board decision denied the certified issue of an effective date prior to December 11, 2017, for the award of a 50 percent rating for post traumatic headaches, to include the issue of entitlement to a rating in excess of 30 percent prior to December 11, 2017, for post traumatic headaches.  Therefore, the Board concludes that no allegation of fact or law remains as to that issue and the appeal must be dismissed.  38 U.S.C. § 7105.  

 

 

Harvey P. Roberts

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	J. T. Hutcheson, Counsel

The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.