Citation Nr: 20057775 Decision Date: 09/01/20 Archive Date: 09/01/20 DOCKET NO. 16-52 624 DATE: September 1, 2020 ORDER Entitlement to an effective date of September 11, 2012, but no earlier, for the assignment of a 50 percent evaluation for service-connected cluster headaches, to include whether an October 2002 rating decision contains Clear and Unmistakable Error (CUE), is granted, subject to the applicable regulations concerning the payment of monetary benefits. FINDINGS OF FACT 1. The Veteran filed a claim to establish service connection for several disabilities, including a headache disability, prior to his September 2001 separation from active duty as part of the Department of Veterans Affairs’ (VA’s) Serviceperson’s Transition Examination Program (STEP). 2. In an October 2001 rating decision, the Agency of Original Jurisdiction (AOJ), among other actions, established service connection for cluster headaches; a noncompensable (zero percent) initial evaluation was assigned, effective from October 1, 2001. 3. Within one year of the issuance of the October 2001 rating decision, the AOJ received evidence pertinent to the assignment of the initial evaluation for service-connected cluster headaches, and thus, the AOJ readjudicated entitlement to an initial compensable evaluation for service-connected cluster headaches in an October 2002 rating decision. 4. The Veteran expressed timely disagreement with the AOJ’s assignment of a noncompensable initial evaluation for service-connected cluster headaches and was provided a February 2004 Statement of the Case (SOC) readjudicating the appealed issue; however, he did not file a timely substantive appeal to the Board of Veteran’s Appeals (Board). 5. The record reflects that the February 2004 SOC was sent to the Veteran at his last address of record, and there is no evidence that such was returned to VA by the United States Postal Service (or any other party or means) as undeliverable or for any other reason, and thus, the presumption of regularity applies to the February 2004 SOC and it is not rebutted. 6. The October 2002 rating decision is final regarding the assignment of a noncompensable initial evaluation for service-connected cluster headaches. 7. The correct facts for the issue of entitlement to a compensable initial evaluation for service-connected cluster headaches, as they were known at the time of the October 2002 rating decision, were before the adjudicator, and the statutory or regulatory provisions extant at the time were correctly applied. 7. No formal or informal claim for an increased evaluation for service-connected cluster headaches was received between issuance of the February 2004 SOC and September 11, 2013. 8. Based on the most probative evidence of record, it is factually ascertainable that the symptoms associated with the Veteran’s service-connected cluster headaches increased in severity as of September 11, 2012, a year prior to VA’s receipt of the Veteran’s September 2013 claim for an increased evaluation for this disability. CONCLUSIONS OF LAW 1. The October 2002 rating decision, which subsumed the October 2001 rating decision regarding the assignment of a noncompensable initial evaluation for service-connected cluster headaches, is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103. 2. The October 2002 rating decision that assigned a noncompensable initial evaluation for service-connected cluster headaches was not clearly and unmistakably erroneous. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105, 4.124A Diagnostic Code 8000. 3. The criteria for an effective date of September 11, 2012, but no earlier, for the assignment of a 50 percent evaluation for service-connected cluster headaches has been met. 38 U.S.C. §§ 5103A, 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.159, 3.326(a), 3.400, 3.654, 3.700, 4.124A Diagnostic Code 8000; Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1979 to September 2001. This matter comes to the Board of Veterans' Appeals (Board) from an October 2014 Decision Review Officer (DRO) decision VA Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the AOJ. The Veteran expressed timely disagreement with this determination, and the present appeal ensued. In May 2019, the Veteran participated in a Travel Board hearing conducted by the undersigned Veterans Law Judge (VLJ) at the RO in Louisville, Kentucky. A transcript of the May 2019 hearing is associated with the record. 1. Entitlement to an effective date earlier than September 11, 2013, for the assignment of a 50 percent evaluation for service-connected cluster headaches, to include whether an October 2002 rating decision contains CUE In an effort to clarify the characterization of the issue on appeal and explain the framework of the Board’s analysis of such, a brief recitation of pertinent facts is necessary. The Veteran’s service treatment and personnel records reflect that he began experiencing recurring headaches during active duty, prompting his supervisor to recommend a change in duty and assignments. The Veteran filed a claim to establish service connection for several disabilities, including a headache disability, prior to his September 2001 separation from active duty as part of VA’s STEP program. In an October 2001 rating decision, the AOJ, among other actions, established service connection for cluster headaches; a noncompensable (zero percent) initial evaluation was assigned, effective from October 1, 2001. In connection with a separate claim for VA disability benefits, the Veteran was provided a VA psychiatric examination in May 2002. At the May 2002 VA examination, the Veteran detailed the frequency and severity of his service-connected cluster headaches. As this evidence was procured by the AOJ within one year of the October 2001 rating decision, the AOJ readjudicated entitlement to an initial compensable evaluation for service-connected cluster headaches in an October 2002 rating decision, denying such. The Veteran expressed timely disagreement with the AOJ’s October 2002 denial of a compensable initial evaluation for service-connected cluster headaches and was provided a February 2004 SOC readjudicating the appealed issue; however, he did not file a timely substantive appeal to the Board. The record reflects that the February 2004 SOC was sent to the Veteran at his last address of record, and there is no evidence that such was returned to VA by the United States Postal Service (or any other party or means) as undeliverable or for any other reason. On September 11, 2013, the AOJ received from the Veteran a claim for a compensable evaluation for his service-connected cluster headaches. In support of this claim, the Veteran submitted an October 2013 statement from a private neurologist, a retrospective account of the frequency and severity of his cluster headaches from 2008 to 2013, and statements from his former work supervisor and wife concerning the frequency and severity of his service-connected cluster headaches and the functional impairment stemming from such. The AOJ provided the Veteran a VA headaches examination in March 2014, and in an April 2014 rating decision, the Veteran’s claim for a compensable evaluation for this service-connected disability was denied. The Veteran expressed disagreement with this determination in May 2014, initiating an appeal. In the October 2014 rating decision, the AOJ partially granted the Veteran’s appeal; the noncompensable evaluation assigned for the Veteran’s service-connected cluster headaches was increased to 50 percent, effective from September 13, 2011 – the date that the AOJ received the Veteran’s claim for an increased evaluation. In February 2015, the Veteran submitted a notice of disagreement with the effective date assigned for the assignment of a 50 percent evaluation for his service-connected cluster headaches. Within this statement, several later submissions, and in testimony at the May 2019 Board hearing, the Veteran asserted that the symptoms associated with his service-connected cluster headaches warranted a 50 percent evaluation under 38 C.F.R. § 4.124A, Diagnostic Code 8100 since his separation from service, and that AOJ adjudications of his claim in 2002 and 2009 contained CUE in denying a compensable evaluation for this service-connected disability. The present appeal ensued. The Veteran’s assertions for an effective date earlier than September 11, 2013, for the assignment of a compensable evaluation for service-connected cluster headaches are threefold: (1) he contends that he did not receive notice of the February 2004 SOC, and thus, his pre-discharge claim remained open and pending regarding the assignment of an initial evaluation for his service-connected cluster headaches remained open and pending until the present; (2) he contends that rating decisions dated in 2002 and 2009 denied contained CUE in denying entitlement to a compensable evaluation for his service-connected cluster headaches; and (3) he contends that the AOJ erred in the October 2014 DRO decision (from which this appeal stems) in assigning an effective date of September 11, 13, for the assignment of a 50 percent evaluation for his service-connected cluster headaches. Based on these assertions and the unique facts of the present case, the Board’s analysis of the Veteran’s appeal must include sequential discussions of (1) whether the October 2002 rating decision became final, (2) if so, whether the October 2002 and/or 2009 rating decision(s) contained CUE in the denial of entitlement to a compensable evaluation for service-connected cluster headaches, and (3) if not, whether an effective date earlier than September 11, 2013, can be assigned under the laws controlling the assignment of effective dates (38 C.F.R. § 3.400). The conclusions for each of these inquiries may lead to allowances of varying degrees. Regarding the first matter, the Board must then consider whether the October 2002 rating decision that assigned a noncompensable initial evaluation for service-connected cluster headaches became final. At the heart of this analysis are the Veteran’s assertions in his October 2016 substantive appeal and at the May 2019 hearing that he did not receive the February 2004 SOC, and thus, his appeal remained open and pending until the AOJ partially granted his appeal by assigning a 50 percent evaluation in the October 2014 DRO decision. The record reflects that the Veteran was provided a copy of the February 2004 SOC and his rights to appeal at his address of record at the time. Pertinently, the February 2004 SOC was addressed to the same mailing and physical address listed by the Veteran in submissions dated from 2002 to the present. The United States Court of Appeals for Veterans Claims (Court) has ruled that there is a rebuttable “presumption of administrative regularity” under which it is presumed that government officials, including employees of VA and the United States Postal Service, have properly discharged their official duties, including mailing notices. Clark v. Principi, 15 Vet. App. 61, 63 (2001). The presumption of regularity with regard to the regular mailing of notice attaches if VA mails notice to the last address of record. See Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994). As noted above, the February 2004 SOC was sent to the last address of record at the time of mailing, and thus, the presumption attaches in the present case. In such cases, the presumption will be rebutted by “clear evidence” that both: (1) the mailing was returned as undeliverable, and (2) there were other possible and plausible addresses that could have been used to contact him. Davis v. Principi, 17 Vet. App. 29 (2003). In Woods v. Gober, 14 Vet. App. 214, 220-21 (2000), the Court clarified that, where the RO sends a veteran notice of a decision and such notice is returned as undeliverable, the presumption of regularity is rebutted, and the burden is shifted to the RO to establish that it reviewed the claims file to ascertain whether there are other possible and plausible addresses for the Veteran. In the present case, the record is devoid of evidence that the February 2004 SOC was returned to VA by the United States Postal Service (or any other party or means) as undeliverable or for any other reason. Ashley v. Derwinski, 2 Vet. App. 62 (1992). Essentially, the only evidence that the February 2004 SOC was not received is the Veteran’s own statement, standing alone, and his non-response to such. The Court has specifically held that such evidence, by itself, is insufficient to rebut the presumption of regularity. YT v. Brown, 9 Vet. App. 195 (1996). In this case, because the presumption of regularity has not been rebutted by a showing that the February 2004 SOC was returned to VA as undeliverable, the further inquiry regarding “other possible or plausible addresses” is unnecessary, as such cannot avail the Veteran. Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met); Cf. Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive "or" requirement must be met in order for an increased rating to be assigned). Having determined that the presumption of regularity attaches to the February 2004 and is not rebutted, the Board notes that the Veteran did not perfect his appeal to the Board in a timely manner. As such, the October 2002 rating decision, from which the February 2004 SOC stemmed via the appeal process, is final regarding the AOJ’s assignment of a noncompensable initial evaluation for the Veteran’s service-connected cluster headaches. 38 U.S.C. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (a), (b). In light of the finding that the October 2002 rating decision is final, the Board’s focus now shifts to whether the AOJ’s February 2002 rating decision that assigned a noncompensable initial evaluation for the Veteran’s service-connected cluster headaches contains CUE. Under the provisions of 38 C.F.R. § 3.105(a), previous determinations that are final and binding will be accepted as correct in the absence of CUE. In order for a claim of CUE to be valid, there must have been an error in the prior adjudication of the claim; either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied. Phillips v. Brown, 10 Vet. App. 25, 31 (1997); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). Further, the error must be “undebatable” and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made, and a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Id. Simply to claim CUE on the basis that the previous adjudication improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE, nor can broad-brush allegations of the “failure to follow the regulations” or “failure to give due process,” or any other general, non-specific claim of “error” meet the restrictive definition of CUE. Fugo v. Brown, 6 Vet. App. 40, 44 (1993). CUE is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. It is not mere misinterpretation of facts. Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). It is a very specific and rare kind of error of fact or law that compels the conclusion, as to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo, 6 Vet. App. at 43. Where evidence establishes CUE, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. §§ 3.104(a), 3.400(k). The Court has propounded a three-pronged test to determine whether CUE is present in a prior final determination: (1) [E]ither the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at that time were incorrectly applied; (2) the error must be “undebatable” and of the sort “which, had it not been made, would have manifestly changed the outcome at the time it was made”; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel, 6 Vet. App. at 24, quoting Russell, 3 Vet. App. at 313-14. To raise a valid claim of CUE, the claimant must state, with “some degree of specificity,” what the error is and also provide “persuasive reasons” why the result would have been manifestly different but for the alleged error. An assertion that the adjudicators had “improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE.” Fugo, 6 Vet. App. at 43-44 (1993). It must be remembered that there is a presumption of validity to otherwise final decisions, and that where such decisions are collaterally attacked, and a CUE claim is undoubtedly a collateral attack, the presumption is even stronger. The Veteran essentially contends that the October 2002 rating decision contained CUE in determining that the frequency and severity of the Veteran’s service-connected cluster headaches did not meet or closely approximate the criteria for a compensable evaluation under 4.124A Diagnostic Code 8100, which remains unchanged to the present. As cluster headaches are not among the disabilities listed in VA’s Rating Schedule, they are rated analogous to migraine headaches. 38 C.F.R. § 4.20. The provisions of 4.124A Diagnostic Code 8100 provide for a noncompensable (zero percent) evaluation for “less frequent attacks,” a 10 percent rating is assigned for migraine headaches when a veteran has characteristic prostrating attacks averaging once in two months over the last several months, a 30 percent rating is assignable with characteristic prostrating attacks occurring on an average once a month over the last several months, and a 50 percent rating is assignable with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124 a, DC 8100. "Prostrating" is defined as extreme exhaustion or powerlessness. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (31st Ed. 2007). As to the term "productive of economic inadaptability," such term could have either the meaning of "producing" or "capable of producing" economic inadaptability. Pierce v. Principi, 18 Vet. App. 440, 445 (2004). In support of this assertions, the Veteran points to service treatment records showing that the Veteran experienced “debilitating” headaches during active duty that prompted the recommendation of his superiors to have his duties and assignments changed. Also, the May 2001 pre-discharge examination in connection with the claim filed through VA’s STEP program shows the Veteran’s claims for cluster headache episodes occurring in the Spring and Fall seasons, lasting for sixty-to-ninety days. The Veteran also notes that the May 2002 VA psychiatric examination report and contemporaneous VA treatment records reflect six-month episodes of cluster headaches, during which he experienced 5-6 headaches per day; however, his cluster headaches did not result in missed time from work. In further support of his appeal, the Veteran has submitted recent statements from himself, his wife, and his private physician, that retrospectively outline the frequency and severity of his cluster headaches since active duty. Based on the above evidence, the Veteran asserts that the effective date of the assignment of a 50 percent evaluation for his service-connected cluster headaches should be the day after his separation from active duty since his initial claim for VA benefits was submitted prior to his separation from such, and the evidence of record at the time of the October 2002 rating decision clearly and unmistakably showed that his headache symptoms approximated the criteria of a compensable evaluation. As noted above, a finding of CUE must be based on the controlling laws and facts of record at the time of the prior final denial. As such, the Veteran’s reliance on the retrospective statements from himself, his wife, and his private physician submitted during the pendency of the current appeal are misplaced, as this evidence was not of record at the time of the October 2002 rating decision. Damrel, 6 Vet. App. at 24, quoting Russell, 3 Vet. App. at 313-14. As these records and statements were not extant and/or associated with the Veteran’s file until approximately more-than 10 years after promulgation of the October 2002 rating decision, the former cannot serve as a basis for revision of the latter due to CUE. In the October 2002 rating decision, the AOJ recounted the findings of the May 2002 VA psychiatric examiner regarding the Veteran’s cluster headaches. Also, because this readjudication subsumed the October 2001 rating decision due to VA’s receipt of pertinent evidence under 38 C.F.R. § 3.156(b), the Veteran’s service treatment records and May 2001 pre-discharge examination were incorporated into the AOJ’s consideration. Ultimately, in the October 2002 rating decision, the AOJ summarily stated: You reported to the VA examiner at [the] 5-28-02 exam[ination] that you were receiving Imitrex injections to help with your cluster headaches and you were worried that the medication may [not] be enough. You also noted that you have not missed any work as a result of your service-connected disabilities. As a result, we have no evidence that these cluster headaches are prostrating. A higher evaluation of 10 percent is not warranted unless prostrating attacks average one in two months. Unfortunately, there is no other information of record from the time of the October 2002 rating decision which alludes to how the AOJ arrived at these conclusions. In the instant case, the Board unfortunately must find that there is no CUE in the AOJ’s October 2002 rating decision that denied entitlement to a compensable initial evaluation for the Veteran’s service-connected cluster headaches. In this regard, in determining that the criteria for a compensable initial evaluation were not met or closely approximated, the October 2002 rating decision was consistent with, and reasonably supported by, the evidence then of record and the existing legal authority, and did not contain undebatable error that would have manifestly changed the outcome. While, as noted above, there is little explanation of how the AOJ arrived at the conclusions reached in the October 2002 rating decision, the Board notes that the evidence necessary to decide the claim under the appropriate laws was reviewable by the AOJ prior to the October 2002 rating decision. Further, as noted above, it must be assumed that this evidence was reviewed and considered appropriately without clear evidence to the contrary. Importantly, judgments as to the credibility and probative value of individual items of evidence are inherent in the function of VA adjudicators. The Veteran contends that the AOJ should have assigned a 50 percent initial evaluation for his service-connected cluster headaches based on the evidence emanating from his service treatment records, the May 2001 pre-discharge examination, and the May 2002 VA psychiatric examination. To the extent that the AOJ did not cite or weigh specific pieces of evidence in the October 2002 rating decision, the question before the Board, a matter of CUE, is not to be reviewed on the basis of how the AOJ arrived at the conclusion reached, but rather, whether such a conclusion could have reasonably been reached given the facts and law extant at that time. Consequently, the Board finds that the Veteran's arguments are tantamount to a disagreement with how the facts were weighed by the adjudicator in October 2002. In this regard, a disagreement with how a prior adjudication evaluated the facts does not establish CUE. Luallen v. Brown, 8 Vet. App. 92, 95 (1995). This argument is therefore without merit. Therefore, the Board finds the Veteran's allegations of CUE in the October 2002 rating decision to be without merit. For the foregoing reasons, it cannot be said that the AOJ’s denial of a compensable initial evaluation for the Veteran’s service-connected cluster headaches in the October 2002 rating decision contained an outcome determinative error in applying the law extant at that time to the facts that were before the adjudicator. Rather, the Board concludes that the correct facts, as known at the time, were before VA adjudicators and the statutory and regulatory provisions extant at the time were correctly applied. Specifically, there is no basis to find that it was unreasonable for the AOJ to have determined that a noncompensable initial evaluation for service-connected cluster headaches was warranted in October 2002. Therefore, the allegations of CUE in the October 2002 rating decision are unsupported and the Veteran's motion for revision or reversal of such decision must therefore be denied. The benefit of the doubt rule is not for application. Andrews v. Principi, 18 Vet. App. 177, 186 (2004) (citing Russell, 3 Vet. App. at 313) (it is well-established that the benefit of the doubt doctrine can never be applicable in assessing a CUE claim because the nature of such claim is that it involves more than a disagreement as to how the facts were weighed or evaluated). In an effort to address the Veteran’s assertions in totality, the Board notes that the Veteran contended at the May 2019 Board hearing and in a June 2019 statement that an AOJ rating decision dated in 2009 contained CUE in continuing the noncompensable evaluation assigned for his service-connected cluster headaches. While the Board acknowledges these assertions, the Veteran’s file is devoid of any indication that the AOJ adjudicated and/or readjudicated the matter of entitlement to a compensable evaluation for service-connected cluster headaches at any time in 2009. Rather, the record reflects that the Veteran contacted the AOJ in November 2009 to request a copy of a the most recent rating decision of record in order to file a claim for Combat Related Special Compensation (CSRC), which is a benefit administered by the Defense Finance and Accounting Service (DFAS), not VA. There is nothing within this November 2009 request or VA’s compliance and response to such later that month which pertains to the Veteran’s service-connected cluster headaches or the disability evaluation assigned for such. Having found that the October 2002 rating decision is final regarding the denial of a compensable initial evaluation for service-connected cluster headaches and revision of such due to CUE, therein, is not warranted, the remaining question before the Board is whether an effective date earlier than September 11, 2013, may be assigned for the Veteran’s service-connected cluster headaches under the laws pertaining to the assignment of effective dates. Parenthetically, the Board notes that the record does not show, and the Veteran does not contend, that service department records relevant to the Veteran’s psychiatric disability that were extant in October 2002 were not associated with the file after such was issued. As such, the provisions of 38 C.F.R. § 3.156 (c) cannot serve to substantiate the Veteran’s appeal by overcoming the finality of the August 1974 rating decision. The statutory guidelines for the determination of an effective date of an award are set forth in 38 U.S.C. § 5110. Except as otherwise provided, the effective date of an evaluation based on a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is the latter. 38 C.F.R. § 3.400. An exception to this rule within 38 U.S.C. § 5110(b)(3) and 38 C.F.R. § 3.400(o)(2) provides that, in cases where the evidence shows that an increase in severity is factually ascertainable one year prior to the Veteran’s submission of a claim for an increased evaluation, the effective date of the increased evaluation may be set within the one-year “look back” period. 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the issue in this case was filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015, will be applied. Under the old regulations, any communication or action indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit 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 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. 38 C.F.R. § 3.155(a) (in effect prior to March 24, 2015). There is no set form that an informal written claim must take. All that is required is that the communication indicates an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (1999). Case law is clear that this means the claimant must describe the nature of the disability for which he is seeking benefits, such as by describing a body part or symptom of the disability. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). In the October 2014 DRO decision, the AOJ assigned effective of September 11, 2013, for the award of a 50 percent evaluation for the Veteran’s service-connected cluster headaches and noted that such was considered to be a full grant of the benefits sought; however, the AOJ did not elaborate further concerning the assignment of this effective date – i.e., why September 11, 2013, was chosen. To this point, the Board notes that the AOJ received a submission from the Veteran on September 11, 2013, in which reflects his wishes to file a claim for an increased evaluation for “cluster migraine headaches.” As such, the question before the Board is whether there is any submission and/or communication within the Veteran’s file between issuance of the February 2004 SOC and the Veteran’s September 2013 claim seeking an increased evaluation for service-connected cluster headaches that may be construed as an unadjudicated formal or informal claim. Pertinently, the Veteran’s file is devoid of any such document. The record reflects that the Veteran did not file any claim, formal or informal, to establish service connection for any disability or petition to reopen the previously-denied claim prior to the submission received by the AOJ on September 11, 2013. As VA did not receive any claim, formal or informal, seeking an increased evaluation for service-connected cluster headaches prior to September 11, 2013. Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). The Veteran has not pointed to any communication or document that could serve as an earlier, unadjudicated claim for benefits. Having determined that the Veteran's formal claim for an increased evaluation for service-connected cluster headaches was filed no earlier than September 11, 2013, the Board notes that, in support of his September 2013 claim, he submitted several personal “diaries” detailing the frequency and nature of his cluster headaches from 2008 to 2014, to include the resulting functional impairment from this disability. Conceding that the Veteran is competent and credible to report the frequency of the occurrences of his cluster headaches, the Board notes that this evidence shows a sharp increase in the frequency of cluster headaches experienced by the Veteran in 2012. While the exact dates of each headaches are not recorded in the Veteran’s personal “diaries,” the Board will resolve all reasonable doubt in the Veteran’s favor in determining that the evidence reflects a factually discernable increase in symptomatology within one year of his September 2013 claim. As such, the exception provided by 38 U.S.C. § 5110(b)(3) and 38 C.F.R. § 3.400(o)(2) applies, and the effective date for a 50 percent evaluation for service-connected cluster headaches is warranted from September 11, 2012 – one year prior to the AOJ’s receipt of his claim seeking an increased evaluation for this disability. Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010) In light of the above, the Board finds that the appropriate effective date for assignment of a 50 percent evaluation for service-connected cluster headaches is September 11, 2012, and to that extent, the Veteran’s appeal is granted. However, as there is no legal basis for assignment of an even earlier effective date with regard to this award, the appeal as to entitlement to an effective date earlier than September 11, 2012, must be denied. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott W. Dale, 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.