Citation Nr: 20047762 Decision Date: 07/16/20 Archive Date: 07/16/20 DOCKET NO. 12-21 169A DATE: July 16, 2020 ORDER Entitlement to an effective date of January 16, 2016 for the grant of an increased rating of 50 percent for migraine headaches is granted. REMANDED Service connection for chronic prostatitis is remanded. FINDINGS OF FACT 1. The Veteran initially filed a claim of service connection for migraine headaches in August 2003. This claim was denied in an August 2004 rating decision. The Veteran did not appeal the decision and new and material evidence was not received within the applicable appeal period. Thus, the decision became final. 2. The Veteran was granted service connection and assigned a 10 percent rating for migraine headaches in a June 2012 rating decision, effective March 8, 2009. The Veteran was granted an increased rating of 30 percent in a June 2014 rating decision, effective March 8, 2009. The Veteran did not appeal the decision new and material evidence was not received within the applicable appeal period. Thus, the decision became final. 3. After the June 2014 rating decision, the next communication that can be considered a claim for an increased rating for a migraine headache disability was received on January 16, 2017. 4. The Veteran’s migraine headaches worsened as of January 16, 2016. CONCLUSION OF LAW An effective date of January 16, 2016, for the award of an increased rating for migraine headaches is warranted. 38 U.S.C. §§ 5101, 5110 (2012); 38 C.F.R. §§ 3.1, 3.155 (2014, 2018), 3.400 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1996 to July 1998. This matter comes before the Board of Veterans’ Appeals (Board) on remand from the Court of Appeals for Veterans Claims (Court). The issue of service connection for chronic prostatitis was originally before the Board on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA). The Board remanded the issue for further development in a July 2016 decision, and then denied the claim in a May 2017 decision. The Veteran appealed to the Court. In a June 2018 Order, the Court issued a Joint Motion for Remand (JMR) vacating the Board’s decision denying the issue of service connection for chronic prostatitis. The Court remanded the issues back to the Board for readjudication in compliance with directives specified. In a January 2019 decision, the Board denied the claim. The Veteran again appealed to the Court. The issue of an earlier effective date for the grant of an increased rating for migraine headaches was originally before the Board on appeal from an April 2017 rating decision granting an increased rating of 50 percent for migraine headaches. The Board denied an effective date prior to January 16, 2017 in a January 2019 decision. The Veteran appealed to the Court. In a January 2020 Order, the Court issued a JMR vacating the Board’s decision denying the issues of service connection for chronic prostatitis and an earlier effective date for the grant of an increased rating for migraine headaches. The Court remanded the issues back to the Board for readjudication in compliance with directives specified. The case has now been returned to the Board for adjudication. Earlier Effective Date Except as otherwise provided, the effective date of an evaluation and award of 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 later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The effective date for the assignment of an increased rating may be up to one year prior to receipt of a formal claim for increase when it is factually ascertainable that an increase in disability had occurred based on all evidence of record. 38 C.F.R. § 3.400(o)(2). A claim is a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p) (2014). The essential elements for any claim, whether formal or informal, are: (1) intent to apply for benefits; (2) identification of the benefits sought; and (3) communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). The Veteran contends that he is entitled to an effective date of February 2016 for the grant of a 50 percent increased rating for his migraine headaches. By way of history, the Veteran initially filed a claim of service connection for migraine headaches in August 2003. This claim was denied in an August 2004 rating decision. The Veteran did not appeal the decision and new and material evidence was not received within the applicable appeal period. Thus, the decision became final. The Veteran was granted service connection and assigned a 10 percent rating for migraine headaches in a June 2012 rating decision, effective March 2009. The Veteran was granted an increased rating of 30 percent in a June 2014 rating decision, effective March 2009. The Veteran did not appeal the decision and new and material evidence was not received within the applicable appeal period; thus, it too became final. After the June 2014 rating decision, the next communication that can be considered a claim for an increased rating for a migraine headache disability was received on January 16, 2017. Therefore, the “look-back” period for this matter is limited to January 16, 2016. The Veteran’s migraine headaches are evaluated pursuant to Diagnostic Code 8100. A 50 percent rating is assigned when there are very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The Veteran underwent a migraine headaches VA examination in January 2017. The examination noted very frequent characteristics of prostrating attacks of migraine and non-migraine headache pain. Based on this examination, the Veteran was granted an increased rating of 50 percent for his migraine headaches in an April 2017 rating decision. In a February 2016 VA neurology treatment visit note, less than one year prior to the date of the veteran’s increased rating claim, the Veteran reported debilitating headaches that caused an inability to perform independent activities of daily living and that he required assistance from friends. He also reported that they occurred three to five times on a weekly basis and lasted hours to “throughout the day,” and were of stabbing or sharp nature. The Board finds that these symptoms are commensurate with those reported upon examination in January 2017 and do reflect an increase in severity. Moreover, the Board finds it reasonable to conclude that the Veteran’s migraine headache symptoms in January 2016 were the same as those reported in February 2016, as it is unlikely the Veteran’s headache symptoms changed that drastically in less than a month’s time. The Board finds that there is no evidence that the Veteran’s migraine headaches suddenly worsened on the exact date of his neurology treatment visit. In Swain v. McDonald, 27 Vet. App. 219, 224 (2015), the Court held that an effective date should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that [the veteran’s disability] first manifested (citing DeLisio v. Shinseki, 25 Vet. App. 45, 58 (2011); Hazan v. Gober, 10 Vet. App. 511, 521 (1997) (noting that for increased ratings claims, section 5110(b)(2) requires VA to review all the evidence of record)). As a result, the Board finds the evidence indicates an increase in severity of the Veteran’s headache symptoms within the “look-back” period through January 16, 2016; and thus an effective date of January 16, 2016, is warranted pursuant to 38 C.F.R. § 3.400(o)(2). REASONS FOR REMAND In the January 2020 JMR, the Court found that the August 2016 VA examiner’s opinion contained inadequate rationale. The examiner reasoned that there was “no evidence of a diagnosis or symptoms of chronic prostatitis” in a March 1997 service treatment record noting painful scrotal area, that “[p]rostatitis is not visible from the outside,” and that the “onset time of the prostatitis [wa]s not provided in the c-file and no [service treatment records] [were] provided to show the etiology.” The Court found that under Dalton, the examination is inadequate because the examiner relied solely upon the absence of service treatment records (STRs) corroborating the existence of impairment as rationale for the negative nexus opinion. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (citing Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (noting that the VA examiner’s opinion, which relied on the absence of contemporaneous medical evidence, “failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran’s] disability such that his claim of service connection could be proven”). Further, the record contains an October 2000 VA treatment record noting that the Veteran’s symptoms of chronic prostatitis had been present for at least a few years. The Veteran separated from service in July 1998. The record also contains a November 2019 private examination by the Veteran’s physician with an opinion that the Veteran’s prostatitis is more likely than not incurred in and/or related to his military service, noting the Veteran’s March 1997 service treatment records report of painful scrotal area. This evidence should be considered by the VA examiner. The Veteran has also contended that his chronic prostatitis is related to his service-connected depressive disorder and migraine headaches. As such, the VA examiner should additionally provide a secondary service connection opinion. Because the examiner relied upon an absence of corroborating STRs to render the negative nexus opinion, the Court found that remand for a new VA opinion addressing the etiology of the Veteran’s chronic prostatitis is required. The matters are REMANDED for the following action: 1. Obtain updated VA and non-VA treatment records. 2. The AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of his chronic prostatitis. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran’s prostatitis was either incurred in or otherwise related to the Veteran’s active duty service? Please explain why. The examiner may not solely rely on the absence of service treatment records in determining his/her opinion. The examiner must discuss the October 2000 VA treatment records noting the presence of prostatitis for “a few years,” as well as the November 2019 private examination and opinion. Is it at least as likely as not (50 percent or greater probability) that the Veteran’s prostatitis was either caused or aggravated by the Veteran’s service-connected depressive disorder and/or migraine headaches? Please explain why. The opinion must address whether the disability increased in severity (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. (Continued on the next page)   A detailed explanation is required to support the opinion. A complete and thorough rationale must be provided for any opinions expressed with consideration given to all evidence of record. If the examiner is unable to offer the opinion requested, he or she must explain in detail why that is the case. If the inability to opine is due to the fact that the examiner lacks the expertise to render such an opinion, or due to the fact that some additional testing or information is needed, and possibly available, that would permit such an opinion, the examiner should clearly and specifically state so, and, if applicable, the examiner should also state precisely what additional testing or information is needed in order to render the requested opinion. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. Kerner, 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.