Citation Nr: 20007267 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 19-18 098 DATE: January 28, 2020 ORDER Entitlement to an effective date of April 29, 2017, but not before, for a 50 percent disability rating for migraine headaches is granted. FINDINGS OF FACT 1. The Veteran filed her claim for an increased disability rating for her migraine headaches on August 25, 2017. 2. The evidence of record demonstrates that a factually ascertainable increase in disability occurred on April 29, 2017, within the one-year period preceding the August 25, 2017, claim for increased compensation. CONCLUSION OF LAW The criteria for an effective date of April 29, 2017, but not before, for the assignment of a 50 percent disability rating for migraine headaches have been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had honorable active duty service with the United States Army from July 2013 to October 2016. The Veteran is a Gulf War Era Veteran. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a December 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). As to the procedure of the case before the Board, the Veteran filed a claim for increased disability rating for her migraine headaches, which was received by the RO on August 25, 2017. A September 2017 rating decision proposed a reduction of the Veteran’s disability rating for her migraine headaches from 30 percent to noncompensable, and a December 2017 rating decision reduced the Veteran’s migraine headache disability rating as proposed. The Veteran filed a timely notice of disagreement with the December 2017 rating decision, and specified that she should receive a disability rating in excess of 30 percent. See Notice of Disagreement, dated December 2017. The Veteran subsequently filed a second claim for an increased disability rating for her migraines in May 2019, prior to the issuance of a statement of the case pursuant to the December 2017 notice of disagreement. In a June 2019 rating decision, the RO restored the Veteran’s disability rating to 30 percent prior to May 31, 2019, for her migraine headaches and assigned her a maximum disability rating of 50 percent from May 31, 2019, and thereafter. The Veteran appealed the decision, specifying she wished only to appeal the effective date of the 50 percent disability rating for her migraine headaches. See VA Form 9, dated June 2019. Due to the Veteran’s continuous prosecution of the claim, the Board finds that the December 2017 rating decision remains on appeal and will render its decision on the proper effective date for the 50 percent award, accordingly. Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim for increase, or a claim reopened after final disallowance, will be 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. Unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found, but will not be earlier than the date of receipt of the claimant’s application. 38 U.S.C. § 5110(a). An exception to the general rule applies where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of the claim for increased compensation. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). Under these circumstances, the effective date of the award is the earliest date at which it was ascertainable that an increase occurred. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125, 126 (1997). The question of when an increase in disability is factually ascertainable is based on the evidence in the veteran’s claims folder. Quarles v. Derwinski, 3 Vet. App. 129, 135 (1992). If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. U.S.C. §5110(b)(2); Harper, 10 Vet. App. at 125; 38 C.F.R. § 3.400(o); VAOPGCPREC 12-98 (1998). Disability evaluations are determined by the application of the facts presented in VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran’s service-connected disability. 38 C.F.R. § 4.14. However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for the evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran’s migraine headaches are governed by, and rated under, Diagnostic Code 8100. 38 C.F.R. § 4.124a, Diagnostic Code 8100. Pursuant to Diagnostic Code 8100, a 30 percent disability rating is warranted if the Veteran’s migraine symptomatology is sufficient to present with characteristic prostrating attacks occurring on an average once a month over last several months. Id. A maximum disability rating of 50 is warranted if the Veteran’s migraine symptomatology is sufficient to present with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Id. As noted above, the Veteran filed her claim for an increased rating, on August 25, 2017. Thus, August 25, 2017 is the date of claim. Although the regulations provide that the proper effective date for an increased rating claim is the date of receipt of the claim or the date that entitlement arose, whichever is later, the Board finds that an exception applies in this instance, which permits an effective date prior to the August 25, 2017 date of claim based upon evidence showing a factually ascertainable increase in disability prior to receipt of the claim. The Board has thoroughly reviewed the evidence of record during the year prior to August 25, 2017, to determine whether any evidence demonstrates that a factually ascertainable increase in disability occurred. A review of the file demonstrates that the evidence is at least in equipoise that an increase in the Veteran’s migraine headache disability, with symptoms more closely approximating a 50 percent disability rating, was factually ascertainable on April 29, 2017, within one year prior to the Veteran’s August 25, 2017, claim. Notably, the Veteran reported on her June 2017 social security administration application that she experienced headaches every other day that lasted for hours due to her pain. She further reported that, due to her migraines, she did not leave the house often. These reports are consistent with the findings of the May 2019 VA examiner, who noted that the Veteran had prostrating migraine headaches three to four days per week. As such, the Veteran’s symptomatology was noted to demonstrate very frequent prostrating attacks. 38 C.F.R. § 4.124a, Diagnostic Code 8100. Moreover, the evidence demonstrates that the Veteran’s migraines resulted in symptomatology that is productive of severe economic inadaptability. Specifically, the Veteran reported that she had been unable to work due to her disabilities, for which migraines were included, in her June 2017 social security administration application. Evidence from her employer indicates that the Veteran was last employed on April 28, 2017. This is consistent with the findings of the May 2019 VA examiner, who opined that the Veteran was unable to work due to her migraine headaches. As such, the Veteran’s symptomatology was noted to result in severe economic inadaptability on April 29, 2017, the date after her last day of employment, which occurred within the year prior to the Veteran’s application for an increased disability rating for her migraine headaches. 38 C.F.R. §§ 3.102, 3.400(o)(2), 4.3, 4.124a, Diagnostic Code 8100; see Harper, 10 Vet. App. at 126. The law is clear. Pursuant to the “benefit-of-the-doubt” rule, where there is “an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter,” the Veteran shall prevail upon the issue. 38 U.S.C. § 5107(b). Although there is evidence against the claim insofar as the September 2017 VA examiner stated that the Veteran did not experience prostrating headaches, the Board finds that evidence is of limited probative value when compared to the positive evidence in favor of the claim. The Board therefore concludes that, with the benefit of the doubt resolved in the Veteran’s favor, a grant of an effective date of April 29, 2017, for a 50 percent disability rating for the Veteran’s migraine headaches is warranted. See Gilbert, 1 Vet. App. at 55 (“[T]he ‘benefit of the doubt’ standard is similar to the rule deeply embedded in sandlot baseball folklore that ‘the tie goes to the runner’…[I]f… the play is close, i.e., ‘there is an approximate balance of positive and negative evidence,’ the veteran prevails by operation of [statute].”). MICHELLE P. KATZ Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Trotter, Associate 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.