Citation Nr: 20032047 Decision Date: 05/06/20 Archive Date: 05/06/20 DOCKET NO. 20-07 742 DATE: May 6, 2020 ORDER Entitlement to an effective date earlier than July 23, 2012 for service connection for migraine headaches is denied. Entitlement to an effective date earlier than July 23, 2012 for the grant of special monthly compensation (SMC) based on the housebound criteria is denied. Entitlement to a rating higher than 10 percent for service-connected migraine headaches is denied. FINDINGS OF FACT 1. On July 23, 2012, the Veteran filed a formal claim for service connection for migraine headaches (claimed as TBI residuals); there were no prior formal or informal claims for migraines pending. 2. From July 23, 2012, the Veteran was entitled to TDIU based on a single disability and had one or more service-connected disabilities involving different anatomical segments which were independently ratable at 60 percent and were distinct from the single disability upon which TDIU was based. 3. The Veteran’s service-connected migraines do not cause prostrating attacks. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than July 23, 2012 for grant of service connection for migraines have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. The criteria for an effective date earlier than July 23, 2012 for the grant of SMC based on the housebound criteria have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 3. The criteria for an initial rating higher than 10 percent for service-connected migraines have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States army from August 1967 to July 1970, including service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2018 rating decision of the Department of Veterans’ Affairs (VA) Regional Office (RO) which granted service connection for migraine headaches and assigned a 10 percent disability rating. The decision also granted special monthly compensation based on housebound criteria being met. Earlier Effective Date The Veteran is seeking effective dates earlier than July 23, 2012 for the grant of service connection for migraine headaches and for the grant of special monthly compensation. The effective date of an evaluation and grant of compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. An earlier effective date may be granted prior to the date of the filing of the claim for a rating increase if it is ascertainable that an increase in disability occurred within one year prior to the filing of the claim. See 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2). The effective date for a grant of service connection is the day following the date of separation from active service or the date entitlement arose, if the claim is received within one year after separation from active service; otherwise date of receipt of claim, or date entitlement arose, whichever is later. See 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (b)(2)(i). A “claim” is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. § 3.1(p). “Date of receipt” of a claim, information, or evidence means the date on which a claim, information, or evidence was received by VA. See 38 C.F.R. § 3.1(r). Any documented communication from, or action by, a veteran indicating intent to apply for a benefit under laws administered by VA may be considered an informal claim. Such an informal claim must identify the benefits sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If the application form is received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. See 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Under 38 C.F.R. § 3.157(b) in effect at the inception of the appeal, once a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, receipt of (1) a report of examination or hospitalization by VA or uniformed services, (2) evidence from a private physician or layman, or (3) reports and records from State and other institutions will be accepted as an informal claim for increased benefits or an informal claim to reopen. However, this regulation only applies to a particular group of claims. See Pacheco v. Gibson, 27 Vet. App. 21 (2014) (en banc) (construing ambiguity contained in 38 C.F.R. § 3.157 as applying to a previous disallowance for a service-connected disability not being compensable in degree); see Sears v. Principi, 16 Vet. App. 244, 249 (2002) (finding that § 3.157 applies to a defined group of claims, i.e., as to disability compensation, those claims for which a report of a medical examination or hospitalization is accepted as an informal claim for an increase of a service-connected rating where service connection has already been established). 1. Migraines In this case, the Veteran is seeking an effective date earlier than July 23, 2012, for the grant of service connection for migraines. Upon review of the record, the Board finds that an effective date earlier than July 23, 2012 is not warranted for the grant of service connection. Notably, VA has a duty to determine the breadth of a claim from intent and the evidence of record. The claimant’s intent in filing a claim is paramount to construing its breadth especially because the claimant knows what symptoms are causing the disability. Here, based upon the evidence, the claim and the pleadings, the Board finds that there was no intent to file a claim for migraine headaches prior to July 23, 2012. Prior to July 23, 2012, there are medical records, correspondence, and claims dating back to the Veteran’s discharge from service. These records do not contain any complaints of migraines, nor was there any evidence that the Veteran believed he was entitled to a benefit based on migraines. Simply put, there is no mention in the record prior to July 23, 2012 of any migraine headaches. The Board also finds that the medical evidence of record is not sufficient to establish an earlier effective date. The mere existence of such records generally cannot be construed as an informal claim; rather, there must be some intent by the claimant to apply for a benefit. See Criswell v. Nicholson, 20 Vet. App. 501, 504 (2006). Furthermore, in the absence of a sufficient manifestation of intent to apply for benefits for a particular disease or injury, a document providing medical information which refers to a disability in and of itself is not an informal claim for VA benefit. Ellington v. Nicholson, 22 Vet. App. 141, 145-46 (2007). In addition, a veteran’s attempt to obtain treatment does not comprise a claim. Dunson v. Brown, 4 Vet. App. 327, 330 (1993). Turning to the particular facts of this case, a review of the Veteran’s VA treatment records is silent for any statements or notes that suggest an intent to apply for benefits for migraines. Therefore, any VA medical records are not sufficient to establish an earlier effective date. Similarly, the relevant private treatment records received prior to the July 2012 effective date do document the Veteran’s reports of periodic headaches but do not suggest an intent to apply for benefits. The Board has given the most favorable reading possible to the facts of this case but finds that there is no interpretation of the facts of this case which will support a legal basis for favorable action with regard to the Veteran’s claim. There was no communication or submission of evidence from the Veteran evidencing intent to apply for benefits regarding migraine headaches prior to July 23, 2012. Accordingly, the Board finds no basis in law or facts in this case for an earlier effective date for service connection for migraine headaches. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. In reaching this conclusion, the benefit of the doubt doctrine was considered. However, as a preponderance of the evidence is against this claim this doctrine is not for application. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Special Monthly Compensation With respect to the effective dates of awards of SMC, the Board notes that claims for SMC are by definition a type of increased (i.e., “special”) compensation. SMC is available when, as the result of a service-connected disability, a veteran suffers additional hardships above and beyond those contemplated by the rating schedule. Breniser v. Shinseki, 25 Vet. App. 64, 68 (2011); see also 38 U.S.C. § 1114(k)-(s). A veteran is presumed to be seeking the maximum benefit allowed by law or regulation; therefore, an appeal for a higher rating may include the inferred issue of entitlement to SMC even where the veteran has not expressly placed entitlement to SMC at issue. Akles v. Derwinski, 1 Vet. App. 118 (1991). Thus, claims for earlier effective dates for SMC are treated analogously to claims for earlier effective dates for increased ratings. SMC is payable for housebound status where the claimant has a single service-connected disorder rated as totally disabling and one or more distinct service-connected disabilities, which are independently ratable at 60 percent and involve different anatomical segments or bodily systems. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). Alternatively, such compensation may be granted when the claimant is permanently housebound by reason of service-connected disability or disabilities. Id. The Board notes that a total disability rating based on individual unemployability (TDIU) based on a single service-connected disability alone may also result in additional benefits (i.e., SMC), even if a 100 percent schedular evaluation is in effect. On the other hand, a TDIU based on several service-connected disabilities in concert with each other does not result in SMC. See Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2010). In an August 2018 rating decision, the RO granted entitlement to SMC based on the housebound criteria effective from July 23, 2012. The RO based this decision on the finding that the Veteran met the schedular criteria for entitlement to SMC housebound, in that effective July 23, 2012, the Veteran was entitled to TDIU (i.e. a 100 percent disability rating) for PTSD and he had additional disabilities that were separately rated as 60 percent or more disabling. The Board will now determine whether an effective date earlier than July 23, 2012 is warranted. Here, the Veteran originally filed a claim for service connection for PTSD, which was granted by way of an April 2014 rating decision, effective August 18, 2010. The Veteran timely appealed the assigned rating. Thus, the issue of entitlement to SMC based on the housebound criteria is part and parcel to the Veteran’s claim for increased compensation. As there was no final rating decision between the time the Veteran filed his original claim and the time he appealed for an increased rating, the Board finds that the claim for SMC stems from the original service connection claim dated August 18, 2010. In August 2018, the RO granted TDIU effective August 18, 2010 based on the Veteran’s service-connected PTSD. Thus, entitlement to TDIU was granted based on a single disability and such TDIU has been in effect during the entire appeal period. Next, the Board will determine the earliest date on which the Veteran had one or more distinct service-connected disabilities, which are independently ratable at 60 percent and involve different anatomical segments or bodily systems. The Board notes that unlike 38 C.F.R. § 4.16(a), when determining whether the Veteran has independently ratable and distinct disabilities for purposes of SMC, the question of whether such disabilities arose from a common etiology is not relevant. See Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2010). Here, during the period from August 18, 2010, in addition to the Veteran’s service-connected PTSD, he is also evaluated for ischemic heart disease, rated 10 percent disabling prior to April 27, 2016, and 60 percent disabling thereafter; GERD, rated 30 percent disabling from November 21, 2011, peripheral neuropathy of the bilateral lower extremities, each rated 10 percent disabling, tinnitus and migraine headaches, each rated 10 percent disabling from July 23, 2012. The Board considers these disabilities as different anatomical segments or bodily systems than his psychiatric disability. After combining these distinct disabilities under 38 C.F.R. § 4.25, to include using the bilateral factor under 38 C.F.R § 4.26, these disabilities are ratable as at least 60 percent beginning on July 23, 2012 (the effective date for the evaluations for the tinnitus and migraine disability). Thus, beginning on July 23, 2012, the Veteran has been entitled to a TDIU based on a single disability and he has had one or more distinct service-connected disabilities, which are independently ratable at 60 percent and involve different anatomical segments or bodily systems. Accordingly, the date on which entitlement to SMC based on the housebound criteria arose is July 23, 2012, the currently assigned effective date for SMC. Thus, the Veteran is not entitled to an earlier effective date for SMC and the claim is denied. In so finding, the Board has considered the Veteran’s lay statements of record. To the extent the Veteran contends that he is entitled to an effective date earlier for SMC, the Board finds that there is no indication by the Veteran or in the remaining evidence of record that the Veteran was permanently housebound prior to July 23, 2012 during the appeal period. For instance, the evidence during this period on appeal shows that the Veteran repeatedly left his home to attend VA medical appointments. Thus, entitlement to SMC based on the housebound criteria is not shown prior to July 23, 2012. In reaching this conclusion, the benefit of the doubt doctrine was considered. However, as a preponderance of the evidence is against this claim this doctrine is not for application. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating The Veteran is seeking an initial rating in excess of 10 percent for migraine headaches. Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s headache disability has been assigned a 10 percent disability rating under Diagnostic Code (DC) 8100 of 38 C.F.R. § 4.124a. 38 C.F.R. § 4.124a, Diagnostic Code 8100, a 50 percent rating is warranted with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 30 percent rating is warranted with characteristic prostrating attacks occurring on an average once a month over last several months. A 10 percent rating is warranted with characteristic prostrating attacks averaging one in 2 months over last several months. A non-compensable rating is warranted for less frequent attacks. The Rating Schedule does not define “prostrating.” “Prostration” has been defined as “complete physical or mental exhaustion.” Merriam-Webster’s New Collegiate Dictionary 999 (11th ed. 2007). “Prostration” has also been defined as “extreme exhaustion or powerlessness.” Dorland’s Illustrated Medical Dictionary 1534 (32nd ed. 2012). According to Stedman’s Medical Dictionary, 27th Edition (2000), p. 1461, “prostration” is defined as “a marked loss of strength, as in exhaustion.” Additionally, the phrase “productive of severe economic inadaptability” has not been clearly defined by regulations or by case law. The United States Court of Appeals for Veterans Claims (Court) has noted that “productive of” can either have the meaning of “producing” or “capable of producing.” Pierce v. Principi, 18 Vet. App. 440, 445 (2004). Thus, migraines need not actually “produce” severe economic inadaptability to warrant the 50 percent rating. Id. at 445-46. Further, “economic inadaptability” does not mean unemployability, as such would undermine the purpose of regulations pertaining to a TDIU. Id. at 446; see also 38 C.F.R. § 4.16. The Board notes, however, that the migraines must be, at minimum, capable of producing “severe” economic inadaptability. Turning to the facts of the case, the Veteran filed a claim for residuals of a traumatic brain injury in July 2012. In an August 2013 treatment note, the Veteran reported having headaches secondary to his medication. See VA Treatment Record dated August 20, 2013. At the November 2013 TBI VA examination, the Veteran denied having headaches and did not manifest any subjective symptoms. Subsequently, the Veteran periodically reported very mild headaches. See VA Treatment Records dated June 9, 2015, June 24, 2015, and December 15, 2015. At the March 2017 VA examination, the Veteran described experiencing headache pain on both sides of the head and in the center of his head. Along with headache pain, his symptoms included sensitivity to both light and sound. He stated that the typical duration of his head pain lasted more than two days and his treatment included over-the-counter medications such as asprin or Motrin. Based on the Veteran’s descriptions, the examiner found that the Veteran did not have characteristic prostrating attacks of migraine/non-migraine headache pain. The examiner also opined that the Veteran’s headache condition did not impact his ability to work. At the June 2018 VA examination, the Veteran described having daily headaches, which may last hours but typically lasted less than a day. Along with headache pain, his symptoms included photophobia and phonophobia. He used medication and meditation to alleviate his symptoms. The Veteran did not endorse characteristic prostrating attacks of headache pain but indicated that it was difficult to focus or function when a headache was present. Given the evidence of record, the Board finds that a rating in excess of 10 percent is not warranted at any time during the appeal period. The evidence of record – namely the VA examination reports and treatment records, demonstrate that the Veteran’s migraine disability is manifested by periodic headaches along with sensitivity to both light and sound. While the Veteran indicated that his headaches could last more than two days at the most, there was no evidence of characteristic prostrating attacks once a month. As noted above, prostrating can be defined as extreme or complete exhaustion and powerlessness. Here, his migraines, while having an impact on his ability to focus or function, did not cause him to miss work and most recently, lasted less than a day. (Continued on the next page)   Accordingly, the next higher disability level, 30 percent, is not more nearly approximated during the appeal period. See 38 C.F.R. § 4.124a, DC 8100. As a final matter, the Board notes that there are no alternative diagnostic codes under which the Veteran’s migraine disability may be analogously rated. See e.g., Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). To conclude, the Board finds that the Veteran’s disability picture and symptomatology, taken as a whole and in combination with the subjective and objective evidence, has not more nearly approximated the criteria for a disability rating in excess of 10 percent. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Therefore, the appeal is denied. T. Berry Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Orie, 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.