Citation Nr: 21003143 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 11-11 032 DATE: January 19, 2021 ORDER Prior to May 23, 2011, a rating in excess of 40 percent for neurogenic bladder is denied. From May 23, 2011 to September 29, 2011, a rating of 60 percent for neurogenic bladder is granted. From September 30, 2011, to September 24, 2015, a rating in excess of 40 percent for neurogenic bladder for the rating interval is denied. Beginning September 25, 2015, a rating in excess of 60 percent for neurogenic bladder for the rating interval is denied. The claim for an earlier effective date than July 19, 2013 for service connection for atherosclerotic heart disease (ASHD) is denied. REMANDED The claim for a rating in excess of 10 percent for migraine headaches is remanded. FINDINGS OF FACT 1. Prior to May 23, 2011, the Veteran’s neurogenic bladder required changing of absorbent materials no more than four times per day 2. From May 23, 2011 to September 29, 2011, the Veteran’s neurogenic bladder required changing of absorbent materials more than four times per day. 3. From September 30, 2011 to September 24, 2015, the Veteran’s neurogenic bladder required changing of absorbent materials no more than four times per day. 4. Beginning September 25, 2015, the Veteran’s neurogenic bladder was not worse than requiring change of absorbent materials more than four times per day. 5. A formal or informal claim for service connection for ASHD was not received prior to July 19, 2013. CONCLUSIONS OF LAW 1. Prior to May 23, 2011, the criteria for a rating in excess of 40 percent for neurogenic bladder have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.115a, 4.115b, Diagnostic Code 7542. 2. From May 23, 2011 to September 29, 2011, the criteria for a rating of 60 percent for neurogenic bladder have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.115a, 4.115b, Diagnostic Code 7542. 3. From September 30, 2011 to September 24, 2015, the criteria for a rating in excess of 40 percent for neurogenic bladder have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.115a, 4.115b, Diagnostic Code 7542. 4. Beginning to September 25, 2015, the criteria for a rating in excess of 60 percent for neurogenic bladder have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.115a, 4.115b, Diagnostic Code 7542. 5. The criteria for earlier effective date than July 19, 2013 for service connection for ASHD have not been met. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400; 38 C.F.R. § 3.155(a) (as in effect prior to March 24, 2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1965 to September 1968. The Department of Veterans Affairs (VA) is grateful for his service. The Board remanded the appealed claims in May 2020. Following remand development, they now return to the Board for further review. As an initial matter, the Board notes that the Veteran testified before a Veterans Law Judge (VLJ) other than the undersigned at a videoconference hearing held in December 2020, and at that hearing the Veteran provided testimony for his appealed claim for service connection for hypertension. The Veteran also testified for his hypertension claim at his hearing before the undersigned in March 2019. As there are two hearings before two VLJs on the appealed hypertension claim, a Board panel decision is necessary for final adjudication of the claim. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). In Arneson, the United States Court of Appeals for Veterans Claims (CAVC) interpreted 38 C.F.R. § 20.707 as requiring that an appellant must be provided the opportunity for a hearing before all three VLJs involved in a panel decision. Id. By law, an appeal can be assigned only to an individual VLJ or to a panel of not less than three members. See 38 U.S.C. § 7102 (a). Thus, when an appellant has had a personal hearing before two separate VLJs during the appeal and these hearings covered one or more common issues, a third VLJ is assigned to the panel, and the Veteran must be afforded the opportunity of a hearing before that third VLJ. Hence, the Veteran has been issued a letter affording him the opportunity of that third hearing, and the hypertension claim will be the subject of a separate Board decision in the future if the claim is not otherwise granted in the interim. 1. Increased Rating for Neurogenic Bladder The Veteran contends, in effect, that his neurogenic bladder was more severe than contemplated by the current 40 percent rating prior to September 25, 2015 and 60 percent evaluation thereafter. As discussed below, the subsequently assigned 60 percent rating is not materially disputed in the record by the Veteran or his authorized representative. Disability ratings are determined by the application of the VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Because varying, distinct degrees of disability may have been experienced over the course of the claim, the rating may be “staged” higher or lower for segments of time during the period under review in accordance with such variations. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as “staged” ratings. Id. at 505. Also, separate ratings for distinct disabilities resulting from the same injury or disease can be assigned so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. See Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). However, the evaluation of the same disability or its manifestations under various diagnoses, which is known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. The primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability over the rating period in question. While the entire recorded history of a disability is important for more accurate evaluations, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). To adjudicate the appealed claims, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. In determining the weight to be assigned to evidence, credibility can be affected by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self- interest, malingering, desire for monetary gain, and witness demeanor. Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff’d per curiam, 78 F.3d. 604 (Fed. Cir. 1996). The Veteran’s neurogenic bladder is appropriately rated as a voiding dysfunction. 38 C.F.R. § 4.115b, Diagnostic Code 7542. Voiding dysfunction is rated under the criteria of 38 C.F.R. § 4.115a as urine leakage, urinary frequency, or obstructed voiding. A rating of 40 percent is assigned for urine leakage requiring the wearing of absorbent materials that must be changed 2-4 times per day; or urinary frequency with daytime voiding interval less than 1 hour, awakening to void 5 or more times per night Id. A maximum rating of 60 percent is assigned for urine leakage requiring the use of an appliance or the wearing of absorbent materials that must be changed more than 4 times per day. Id. Obstructed voiding may be assigned a maximum 30 percent rating based on urinary retention requiring intermittent or continuous catheterization. Id. Prior to September 25, 2015 VA treatment records include details of urinary frequency, pad changes, and nocturia over the rating period prior to September 25, 2015, as detailed below. At the March 2019 hearing before the undersigned, the Veteran’s spouse provided testimony regarding severity of the Veteran’s neurogenic bladder. However, this testimony was notably inconsistent and contradictory. She first testified that she could not remember how often absorbent pads had to be changed before 2015, but then stated it was five or more times per day and more at night. Hearing transcript, page 3. She then went on to testify that the condition began in 2004 or 2005 and he was then having to change pads four to five times per night and perhaps seven times during the day. Hearing transcript, page 4. This notably contradicts her just stated testimony that pads had to be changed more frequently at night, and also contradicts her initial statement that she did not recall the frequency of pad changes. These treatment records as well as examination reports prior to September 25, 2015 contradict the Veteran’s spouse’s testimony of a consistently high level of pad changes of more than 4 pads per day. These records reflect that prior to September 25, 2015 the Veteran was not consistent in seeking care for his neurogenic bladder, with variable control of the condition with different medications and dosages over the course of claim. Based on the self-contradicting nature of the Veteran’s spouse’s testimony and the contradiction of this testimony by treatment and examination records from the period in question, including contradiction by statements by the Veteran in the course of such treatment over the period in question, the Board finds the symptoms of neurogenic bladder as reported in treatment and examination records to be more credible than the Veteran’s spouse’s testimony regarding these frequencies of pad changes prior to September 25, 2015. Hence, the Board assigns far greater weight to these treatment and examination records in its adjudication of the claim. Kahana, 24 Vet. App. at 433-34. At a January 2008 VA treatment visit, it was noted that the Veteran had not been seen by the urology department in two years. He asked for a Detrol prescription that had been last filled three years ago by urology. When seen by urology the Veteran reported having urinary problems and wetting himself. At an August 2008 VA treatment visit, the Veteran reported having urinary problems for several months in which he had to urinate every five to ten minutes throughout the day and might have an accident if not near a bathroom. He then reported having urinary urgency but denied dysuria or hematuria. At an October 2008 VA urology examination for compensation purposes, the Veteran’s spouse reported worsening symptoms since onset of the condition in 1999 despite prescribed Detrol working for a short period of time. Reported symptoms included daytime voiding interval between one and two hours, nocturia five or more times per night, and urinary leakage, though absorbent materials were not required. Other symptoms included urgency, hesitancy, dribbling, and straining to urinate. At a November 2008 VA urology treatment, the Veteran complained of urgency and frequency and reported nocturia two times per night. He denied hesitancy or slow stream. However, he reported improvement of his condition with medication. The Veteran was dismissed from VA urology in November 2008 and was to return to VA urology care if and when prescribed medications lost their effectiveness. In a November 2009 notice of disagreement, the Veteran reported that he had loss of bladder control and had to always wear absorbent materials. At a November 2009 VA urology treatment, the Veteran complained of overactive bladder with urgency, frequency, and urge incontinence for several years. Reported symptoms included weak stream, incomplete voiding, hesitancy, and intermittency for many years. He also complained of gross hematuria one time monthly lasting one to two days. The Veteran received medication management. At a January 2010 VA urology treatment, the Veteran reported significantly improved symptoms with reduced urgency and nocturia only one to two times nightly. At a February 2010 VA urology treatment, the Veteran reported improvement but with continued mixed urinary incontinence and nocturia two times nightly. At a March 2010 VA urology treatment, the Veteran reported improvement but continued symptoms with nocturia two times per night. He added that sometimes he experienced a feeling of incomplete voiding and had to go back a few minutes later to urinate. At an April 2010 VA urology treatment, the Veteran was noted to have had severe lower urinary tract symptoms (LUTS) for many years, with mixed incontinence and overactive bladder (OAB). The Veteran reported reduced absorbent material use, from four to two, following an increase in prescribed Detrol, with those absorbent materials only partially wet. The Veteran also reported that he no longer leaked at night, but that he still strained to void, with intermittency and post-void dribbling. The examiner diagnosed a bladder outlet obstruction (BOO) problem, high voiding pressure, small capacity bladder, and good bladder contraction. At a July 2010 VA urology treatment, the Veteran reported greatly improved urination, with use of one absorbent material every other day, minimal straining, and decreased urinary frequency. At an October 2010 VA urology treatment, the Veteran reported greater improvement, with use of one absorbent material every other day, minimal straining, and decreased frequency. At a November 2010 VA urology treatment, the Veteran again reported greatly improved urination with higher dose Detrol. At a May 23, 2011 VA urology treatment, the Veteran complained of worsening symptoms, with hourly voiding, urgency, urinary incontinence, nocturia two to three times nightly, some stress urinary incontinence, and using four to five pads per day. At a September 29, 2011 VA urology treatment, the Veteran complained of hourly voiding, urgency, nocturia two to three times nightly, some stress urinary incontinence, and using four to five pads per day. An increase in medication was prescribed. At a December 2011 VA urology treatment, the Veteran reported that with changed medication his nocturia and urge-related leakage had improved, though with remaining occasional stress urinary incontinence. The Veteran reported that he was satisfied with his current status. The record does not contain regular VA urology treatment visits subsequent to December 2011, notwithstanding the Veteran’s reports of more severe symptoms at his VA examination for compensation purposes in July 2012 and September 2015. At a July 2012 VA urology examination for compensation purposes, the Veteran reported that for the past two years he had increased frequency of urination of approximately eight to 10 times throughout the day and three to four episodes at night, and urinary leakage that required three pads per day. Accepting the Veteran’s self-report, the examiner recorded need of changing absorbent materials two to four times per day, daytime voiding intervals of between one and two hours, and nighttime awakening to void three to four times. The Veteran also reported symptoms of obstructive voiding including hesitancy, slow stream, and decreased force of stream, but none of these were to a marked degree. The Veteran had no history of urolithiasis or bladder calculi, or other bladder or urethral conditions. The examiner found that the Veteran’s bladder or urethral conditions did not impact his ability to work. VA treatment records include a July 18, 2015 VA medication refill visit with a review of symptoms, where the Veteran denied dysuria, urinary frequency, or urinary urgency. However, obstructive uropathy, urinary frequency, and urinary incontinence were listed as active problems, and their listing as active problems or as part of medical history is continued during the claim period. At a September 25, 2015 VA urology examination for compensation purposes, the Veteran reported wearing absorbent materials that required changing more than four times per day and daytime voiding interval of less than one hour. The Veteran also reported symptoms of obstructive voiding including hesitancy, slow stream, and decreased force of stream, but none of these were to a marked degree. These treatment and examination records and the Veteran’s own self-report of symptoms of neurogenic bladder at these treatment and examination records over the rating interval prior to September 25, 2015, do not, on balance, reflect requiring changing of absorbent materials more than four times per day, but rather reflect requiring changing absorbent materials two to four times per day or less. The sole interval reflecting greater need is documented by the above-detailed May and September of 2011 urology visits when the Veteran reported changing pads four to five times per day. Affording the Veteran the benefit of the doubt, the Board concludes that for the interval from May 23, 2011 to September 29, 2011, a 60 percent rating is warranted, based the Veteran then requiring more than four pads daily. The weight of the evidence is against more than four pads per day before May 23, 2011 and after September 29, 2011, since the Veteran did not complain of such greater severity prior to May 2011 and the Veteran’s medication was adjusted in September 2011, with improvement reported by the Veteran at his next urology visit in December 2011. The Veteran’s own statements in furtherance of his claim prior to this date are also generally consistent with these records. While these records do reflect intervals when medication management for the Veteran’s neurogenic bladder became insufficient and symptoms increased until medications were adjusted and the condition again improved, even in those instances when an increase in medication was required changing of absorbent materials more than four times per day was generally not reported. Thus, the weight of the evidence reflects that the symptoms of the Veteran’s neurogenic bladder for the rating period prior to September 25, 2015 more nearly approximated the criteria for a 40 percent rating than a 60 percent rating, based on voiding intervals or frequency of changing of absorbent materials, with the exception of the interval from May 2011 to September 2011. The exact dates of visits when the Veteran reported a need for more than four pad changes daily were May 23, 2011 and September 29, 2011, and hence the Board grants the maximum schedular 60 percent rating for this interval between May 23, 2011 and September 29, 2011. With the exception of the May 23, 2011 to September 29, 2011 interval, the Board finds that the weight of competent and credible evidence against a higher rating than the 40 percent assigned for the Veteran’s neurogenic bladder for the rating period prior to September 25, 2015. The Board has reviewed the entire record and finds that the weight of the evidence does not support additional staged ratings prior to September 25, 2015, and hence additional staged rating are not warranted. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Beginning September 25, 2015 For the rating interval beginning September 25, 2015, the Veteran has already been assigned the maximum schedular rating for his neurogenic bladder based on voiding dysfunction. The Veteran has not contended and the record does not otherwise support an alternative basis of rating for this interval or exceptional or unusual disability picture as related to voiding dysfunction as would warrant an extraschedular rating. Rather, by its nature the 60 percent rating encompasses maximal criteria by being inclusive of loss of urinary control with need to use an appliance or need to change absorbent materials in any amount more than 4 times per day. Hence, any frequency of need to change absorbent materials is encompassed by the 60 percent rating. The Veteran’s neurogenic bladder was addressed in a September 25, 2015 VA examination. The claims file was reviewed. The Veteran was noted to have neurogenic bladder due to his service-connected diabetes mellitus, type II. This was identified by the examiner as causing voiding dysfunction with urine leakage, with resulting need to wear absorbent materials which required changing more than four times per day and daytime voiding interval of less than one hour. Signs or symptoms of obstructed voiding were not present. An April 2017 VA QTC contract examination was provided to address neurogenic bladder. The Veteran reported at this examination having a daytime voiding interval of less than one hour and nighttime awakening to void five or more times, and this reported urinary frequency as associated with neurogenic bladder was accepted by the QTC examiner and was a basis for the VA Regional Office (RO) not disturbing the assigned 60 percent rating. In a submitted January 2018 medical report to support the Veteran’s claim of need for aid and attendance of another, the examiner noted that the Veteran had “occasional incontinence [secondary to] neurogenic bladder.” In a February 2019 VA medical report addressing need for aid and attendance of another, in the section of the form where the physician was specifically directed to address such issues as “pathology including loss of bowel or bladder control,” the examiner only notes “dizziness, poor balance, PTSD [and] poor ambulation.” At an October 2019 Aid and Attendance examination at which both the Veteran and his spouse were present, they reported that the Veteran required assistance with transfer onto the toilet, but no mention is recorded of need to wear absorbent materials. In any case, a higher rating than the current 60 percent evaluation is not available under the applicable rating code. In making this determination, the Board notes that neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). 2. The claim for an earlier effective date than July 19, 2013 for service connection for ASHD The Veteran contends that service connection for ASHD was warranted years prior to July 19, 2013. Generally, 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 (a); 38 C.F.R. § 3.400. 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. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments are effective for claims and appeals filed on or after March 24, 2015. Thus, the regulations in effect prior to March 24, 2015, will be applied in this case. Under the prior regulations, any communication or action, indicating intent to apply for one or more benefits under laws administered by VA, from a claimant or his representative, 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 previously 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) (as in effect prior to March 24, 2015). Where compensation is awarded pursuant to a liberalizing law or a liberalizing VA issue, the effective date of the increase shall be fixed in accordance with facts found but shall not be earlier than the effective date of the act or administrative issue. 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114 (a). If a claim is reviewed on the initiative of VA within one year from the effective date of the law or VA administrative issue, or a request from a claimant is received within one year from that date, benefits may be authorized from the effective date of the law or VA administrative issue. 38 C.F.R. § 3.114 (a)(1). However, if a claim is reviewed on the initiative of VA more than one year after the effective date of the law or VA administrative issue, benefits may be authorized for a period of one year prior to the date of administrative determination of entitlement. 38 C.F.R. § 3.114 (a)(2). Finally, if a claim is reviewed at the request of the claimant more than one year after the effective date of the law or VA administrative issue, benefits may be authorized for a period of one year prior to the date of receipt of such request. 38 C.F.R. § 3.114 (a)(3). In order to be eligible for a retroactive award, however, the claimant must show that all eligibility criteria for the benefits existed at the time of the effective date of the law or administrative issue and continuously thereafter. 38 C.F.R. § 3.114 (a). Ordinarily, under the above provisions for liberalizing laws, awards based on presumptive service connection established under the Agent Orange Act of 1991 can be made effective no earlier than the date VA issued the regulation authorizing the presumption. In this case, liberalizing regulation creating a presumption based on exposure to herbicide agents (e.g., Agent Orange) for service connection for ischemic heart disease (IHD), which includes ASHD, was made effective August 31, 2010. See 75 Fed. Reg. 53,202-53,216 (Aug. 31, 2010). Nevertheless, with respect to earlier effective date claims for service connection for diseases presumptively based on exposure to herbicide agents, VA has promulgated special rules to implement orders of a United States District Court in the class action of Nehmer v. United States Department of Veteran’s Affairs. See 38 C.F.R. § 3.816; Nehmer v. U.S. Veterans Admin., 32 F. Supp. 1404 (N.D. Cal. 1989); Nehmer v. U.S. Veterans Admin., 32 F. Supp. 2d 1175 (N.D. Cal 1999); Nehmer v. Veterans Admin. of the Gov’t of the U. S., 284 F.3d 1158 (9th Cir. 2002); Nehmer v. U.S. Veterans Admin., 494 F.3d. 846 (2007). The Nehmer litigation has created an exception to the generally applicable effective date rules contained in 38 U.S.C. § 5110 (g) and 38 C.F.R. § 3.114. In pertinent part, a Nehmer class member is defined as a Vietnam veteran who has a covered herbicide disease. 38 C.F.R. § 3.816 (b)(1)(i). A covered herbicide disease includes a disease for which the Secretary of Veterans Affairs has established a presumption of service connection pursuant to the Agent Orange Act of 1991. 38 C.F.R. § 3.816 (b)(2). As noted, the liberalizing regulation adding ASHD as a presumptive condition based on Agent Orange exposure was effective August 31, 2010. The Nehmer regulations provides for situations where the effective date can be earlier than the date of the liberalizing law, assuming a Nehmer class member has been granted compensation for a covered herbicide disease. Either (1) VA denied compensation for the same covered herbicide disease in a decision issued between September 25, 1985, and May 3, 1989; or (2) the class member’s claim for disability compensation for the covered herbicide disease was either pending before VA on May 3, 1989, or was received by VA between May 3, 1989, and the effective date of the statute or regulations establishing a presumption of service connection for the covered disease (here August 31, 2010). In these situations, the effective date of the award will be the later of the date such claim was received by VA or the date the disability arose, unless a claim was filed within one year of service discharge. 38 C.F.R. § 3.816 (c)(1), (c)(2), (c)(3). If neither circumstance exists, the effective date of the award of service connection shall be determined in accordance with either 38 C.F.R. § 3.114 or § 3.400. See 38 C.F.R. § 3.816 (c)(4). The Veteran’s representative clarified at the hearing before the undersigned in March 2019 that the Veteran was claiming an earlier effective date for service connection for ASHD based on the possibility of a diagnosis of ischemic heart disease prior to 2013 and based on a prior claim for service connection. The representative also addressed a question to the Veteran’s spouse at the hearing as to whether a claim was filed for heart disease for which Nehmer applied. The Veteran’s spouse replied that a prior claim had been filed “around 2006 or long before that,” but that the claim was not addressed (“Okay, and it was just sitting there, nothing was being done.”) Hearing transcript, page 13. The Veteran’s spouse informed that the Veteran was hospitalized for a coronary heart condition in 2013 at multiple private medical facilities. At a hearing at the VA Regional Office (RO) in August 2016, the Veteran’s spouse contended that service connection for heart disease should be granted back to 1994. She then testified that while she could not find the claim for a heart condition but that “it’s in his records.” Hearing Transcript, page 17.) At this hearing, the Veteran suggested that a form had been submitted giving permission to obtain medical records. The Board has carefully reviewed the record but does not find a submission prior to July 19, 2013, which would qualify as a formal or informal claim for service connection for ASHD or another ischemic heart condition. While there were authorizations to release records submitted prior to that date, these did not indicate any intent to file a claim for service connection for ASHD or another ischemic heart condition. The record reflects that by a March 2003 rating decision the RO denied service connection for a heart murmur based on this condition being a congenital or developmental abnormality. The Veteran had submitted that claim in August 2002, as an informal claim simply for “heart murmur.” There was no mention in that claim of any other heart condition. In support of this claim, records from the Heart and Vascular Institute of Texas (HVIT) were received into the record in January 2003. An April 1994 letter from a cardiologist informed that the Veteran sought medical care complaining of palpitations while denying any chest pain or shortness of breath. The letter informs of the Veteran’s report of having “diet[-]controlled hypertension.” Physical examination and a treadmill test were conducted. The treadmill test did not produce angina. The physician informs in the letter that the Veteran had no ischemic heart disease and that the physician suspected that the Veteran’s arrhythmias were benign. Based on the possibility of mitral valve prolapse with mild mitral regurgitation, an echocardiogram was ordered. A May 1994 letter from a cardiologist informs of an echocardiogram and a doppler study. Clinical examination was noted to have detected a “very soft, apical systolic murmur.” The echocardiogram and doppler study revealed mild left ventricular hypertrophy (LVH) with normal ejection fraction and “some evidence of diastolic dysfunction.” Also revealed were 2+ mitral regurgitation and “trace to 1+ (possibly physiologic) tricuspid regurgitation.” The cardiologist assessed, “I would suspect that he has some degree of early hypertensive heart disease manifested by mild LVH,” adding, “The mitral regurgitation may be due to some mild capillary muscle re-alignment related to the LVH.” The examiner recommended some antihypertensive medication, periodic blood pressure checks, and dietary and exercise changes. The cardiologist did not report the presence of ischemic heart disease or ASHD. The Veteran underwent VA examinations in April 2002 in furtherance of claims for diabetes mellitus and residuals of hepatitis as well as heart murmur. At these examinations chest x-rays and an echocardiogram were obtained inclusive of “M-mode and 2D imaging.” These revealed only normal studies, with normal left ventricular size and function, normal left atrium size, right ventricle and right atrium within normal limits, mitral and tricuspid valves morphologically normal without evidence of prolapse, aortic valve morphologically unremarkable with normal excursion, no significant pericardial effusion, aortic root size normal, no significant regurgitation lesions, no evidence of aortic stenosis, and a left ventricular ejection fraction of 60%. Thus, service connection for ischemic heart disease or ASHD was not claimed in August 2002, was not found by the cardiologists at HVIT in 1994 (as reflected in the records obtained in January 2003), was not found upon VA examination in April 2002, and was not addressed by the RO in the March 2003 decision denying service connection for a heart murmur. Neither ASHD nor anther ischemic heart condition was reported in the record prior to the March 2003 decision. The Veteran contacted VA by telephone on July 19, 2013, and reportedly request compensation for aid and attendance. This was used as a date of claim for service connection for ASHD, based on a subsequent submission and evidentiary development. In March 2014, the Veteran submitted a statement listing a number of diseases including “ischemic disease.” On this basis a claim for service connection for ischemic heart disease based on Agent Orange exposure was developed. The Veteran’s representative has argued that Nehmer may be applicable in this case. However, because VA did not deny compensation for ASHD between September 25, 1985 and May 3, 1989, there was no claim for service connection for ASHD pending before VA on May 3, 1989, and no such claim was received by VA between May 3, 1989 and August 31, 2010, Nehmer regulations do not apply to support the earlier effective date claim. 38 C.F.R. § 3.816 (c)(1), (c)(2), (c)(3). While the Veteran and his spouse may sincerely believe that they submitted a prior claim for service connection for ASHD, the documentary record within the claims file does not reflect any such prior claim. There is simply no record of a claim for ASHD or other ischemic heart disease received prior to July 19, 2013. There is a presumption of administrative regularity with regard to processes and procedures throughout the VA administration process. Mindenhall v. Brown, 7 Vet. App. 271 (1994). The presumption is not absolute and may be rebutted by the submission of clear evidence to contrary. Warfield v. Gober, 10 Vet. App. 483 (1997). Rebutting the presumption of administrative regularity usually requires more than a mere allegation of defective process or procedure, nonreceipt of a communication, or other failing. Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994); Schoolman v. West, 12 Vet. App. 307, 310 (1999). Here, the Veteran’s spouse’s assertion that there was a prior, undocumented claim for a heart condition is not clear evidence of such a prior formal or informal claim having been filed, and hence the presumption of regularity is not rebutted. Accordingly, because a formal or informal claim would, per VA administrative process, be filed within the Veteran’s claims file and retained there, in the absence of any documentation within the claims file to support receipt of an earlier formal or informal claim, the Board concludes that no prior claim was filed for ASHD or another ischemic heart condition to support the Veteran’s claim for an earlier effective date for service connection for ASHD. Prior to the March 2003 RO decision denying service connection for a heart murmur, evidence of record did not support the presence of ASHD, and hence an informal claim for ASHD was not raised in the context of the heart murmur claim. In short, the Board finds the weight of competent and credible evidence against an earlier effective date for service connection for ASHD than July 19, 2013, based on absence of any earlier submission constituting a formal or informal claim for ASHD. 38 C.F.R. § 3.400. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Claim for a rating in excess of 10 percent for migraine headaches The Veteran was most recently examined in July 2012, and that examiner noted that the Veteran had been diagnosed with mixed cluster headaches in 2001. The Veteran reported at the examination that he had dull to sharp pulsating headaches localized to the top to front of his head which never went away but varied in intensity. He reported treating the headaches with Naproxen and Tramadol and planning to continue treating the headaches, while contending that nothing helps the headaches. The July 2012 examiner noted that the reported headache symptoms were bilateral and were associated with sensitivity to light, though they were not accompanied by other symptoms. The examiner found that the Veteran did not have characteristic prostrating attacks of migraine headache pain or characteristic prostrating attacks of non-migraine headache pain. The examiner also found that the headaches did not have a significant impact on the Veteran’s ability to work. VA treatment records associated with the claims file in August 2015 include records reflecting ongoing medication for prevention of migraines, with treating clinicians specifically noting that the Veteran had not reported having intractable migraines. More recent VA treatment records reflect that Veteran receives ongoing monthly Erenumab injections for migraine prevention. At his March 2019 hearing before the undersigned, the Veteran testified to having both tension and migraine headaches. He described the tension headaches as “really severe,” of 9 out of 10 severity, and present all the time, which would “always show up at any time,” and “keep me from working or doing anything around the house.” Hearing transcript, page 6. Also at the hearing, the Veteran’s spouse explained that the Veteran’s migraine headaches lasted “for hours, sometimes days,” “make him incapacitated,” occurred “several times a month” with the Veteran vomiting “once or twice a month” due to the migraines. Hearing Transcript, pages 6, 7. His spouse added that they went to the emergency room due to a headache in 2016. She also testified that the Veteran was receiving injections at Audie Murphy VA hospital but that he stopped getting the injections because they were not working. Because the migraine symptoms reported by the Veteran and his spouse at the March 2019 hearing appear to reflect a significant increase in severity of disability from that found upon the most recent VA migraine examination for compensation purposes in July 2012, a new VA examination is warranted. (While a supplemental statement of the case (SSOC) in November 2018 references a “current examination,” it does not appear that the Veteran has undergone a migraine examination for compensation purposes subsequent to July 2012.) The duty to conduct a contemporaneous examination is triggered when the evidence indicates that there has been a material change in disability or that the currently assigned disability rating may be incorrect. Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). The matter is REMANDED for the following actions: 1. Undertake development to obtain any outstanding VA and relevant private medical records, with the Veteran’s assistance and authorization as appropriate. All efforts to obtain additional evidence must be documented in the electronic record. 2. Thereafter, obtain a VA examination to address the current nature and severity of the Veteran’s migraine headaches. The claims file including a copy of this remand should be provided to the examiner, and these should be carefully reviewed. The examiner must document and consider the Veteran’s own statements regarding his disability, since a layperson is competent to address symptoms as experienced and his recollections of past history and treatment. If the examiner has reason based on other evidence of record or medical knowledge to question the Veteran’s self-reported history, the examiner should so state and provide a complete explanation why this is so. The examiner should address the nature, duration, and frequency of headaches. The examiner should explain how or why the headaches the Veteran experiences are migraine or non-migraine, prostrating or non-prostrating, and completely or partially debilitating or not debilitating. The examiner should also discuss the effect of the Veteran’s headaches on any occupational functioning and activities of daily living. If it is not possible to provide a specific finding without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Thereafter, readjudicate the remanded claim. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Schechter 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.