Citation Nr: 21063644 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 17-28 877 DATE: October 15, 2021 ORDER Entitlement to an effective date earlier than October 29, 2007, for the grant of service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to an effective date earlier than May 1, 2017, for the grant of service connection for sleep apnea is denied. Entitlement to an effective date earlier than May 1, 2017, for the grant of service connection for migraine headaches is denied. REMANDED Entitlement to service connection for a stroke, to include as secondary to a service-connected disability, is remanded. Entitlement to an initial disability evaluation in excess of 30 percent for migraine headaches is remanded. Entitlement to an initial disability evaluation in excess of 30 percent for PTSD prior to June 18, 2015, and in excess of 70 percent thereafter, is remanded. FINDINGS OF FACT 1. The Veteran did not file his petition to reopen his claim for service connection for a psychiatric disability, to include the granted PTSD, until October 29, 2007. 2. Following the November 2012 Board denial of service connection for sleep apnea, the Veteran did not file what could be construed as a request to reopen the previously denied claim until May 1, 2017. 3. Following the January 2011 Board denial of service connection for migraine headaches, the Veteran did not file what could be construed as a request to reopen the previously denied claim until May 1, 2017. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date prior to October 29, 2007 for the award of service connection for PTSD, also claimed as major depression, have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2020). 2. The criteria for entitlement to an effective date prior to May 1, 2017 for the award of service connection for sleep apnea have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2020). 3. The criteria for entitlement to an effective date prior to May 1, 2017 for the award of service connection for headaches have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from September 1983 to January 1984 and from February 1985 to April 1988. The Veteran appeared at a virtual hearing in June 2021 before the undersigned Veterans Law Judge. A transcript of that hearing is of record. Effective Date Generally, the effective date of an award of a claim is the date of receipt of the claim application or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. However, if a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400 (b)(2). A rating decision becomes final and binding if the Veteran does not timely perfect an appeal of the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103. The United States Court of Appeals for Veterans Claims (Court) held in Sears v. Principi, 16 Vet. App. 244, 248 (2002) that "[t]he statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim." In order for the Veteran to be awarded an effective date based on an earlier claim, he or she has to show CUE in the prior denial of the claim. Flash v. Brown, 8 Vet. App. 332, 340 (1995). Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after a 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. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The effective date upon receipt of new and material evidence after a final disallowance will be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2). For cases where an appellant seeks to reopen a claim for entitlement to an earlier effective date under 38 C.F.R. § 3.156, even assuming the presence of new and material evidence, reopening of a claim for entitlement to an earlier effective date cannot result in the actual assignment of an earlier effective date, because an award granted on a reopened claim may not be made effective prior to the date of the reopened claim. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(q)(2); Leonard v. Principi, 17 Vet. App. 447 (2004), "aff'd Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005); Lapier v. Brown, 5 Vet. App. 215 (1993). PTSD The Board notes that the Veteran's initial claim of entitlement to service connection for depression was received in February 2005. In a July 2005 rating determination, the RO denied for depression. The Veteran was notified of this decision in August 2005. The Veteran did not file a timely appeal of this decision nor was evidence received which would have allowed the claim to remain open. A rating decision becomes final and binding if the Veteran does not timely perfect an appeal of the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103. The next document received with regard the claim of service connection for a psychiatric disorder, to include depression, was October 29, 2007. This is the effective date for which service connection has been granted for PTSD. For cases where an appellant seeks to reopen a claim for entitlement to an earlier effective date under 38 C.F.R. § 3.156, even assuming the presence of new and material evidence, reopening of a claim for entitlement to an earlier effective date cannot result in the actual assignment of an earlier effective date, because an award granted on a reopened claim may not be made effective prior to the date of the reopened claim The effective date currently assigned is the date of the reopened claim request. As such, the Veteran's claim of entitlement to an earlier effective date for service connection for PTSD, claimed as depression, is denied. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2020). Sleep Apnea In August 2006, the Veteran requested service connection for sleep apnea. The RO denied service connection for sleep apnea in July 2007. Thereafter, the Veteran perfected his appeal. In a November 2012 decision, the Board denied service connection for sleep apnea. The Veteran had 120 days to appeal the decision to the United States Court of Appeals for Veterans Claims (Court) and did not do so. In March 2013, the Veteran filed a Motion for Reconsideration of the November 2012 Board decision. The Board denied the Motion for Reconsideration in August 2013. As such, the November 2012 Board decision is final. No further correspondence from the Veteran, which can be construed as a request for service connection for sleep apnea, was received by VA until a notice of intent to file a claim was received on May 1, 2017. A formal claim for service connection for sleep apnea was received in April 2018, within one year of the notice of the May 1, 2017 notice of intent to file claim being received. Thus, the claim is qualified to be considered as having been filed on May 1, 2017. In an August 2018 rating determination, the RO granted service connection for sleep apnea and assigned a 50 percent disability evaluation effective May 1, 2017. The Veteran maintains that an earlier effective date is warranted back to the date of his original filing. As noted above, the Board denied service connection for sleep apnea in a November 2012 decision and the Veteran did not appeal to the Court. Thus, the decision became final. The next document received that can be construed as claim for service connection for sleep apnea was received on May 1, 2017. This is the date for which service connection has been granted for sleep apnea. For cases where an appellant seeks to reopen a claim for entitlement to an earlier effective date under 38 C.F.R. § 3.156, even assuming the presence of new and material evidence, reopening of a claim for entitlement to an earlier effective date cannot result in the actual assignment of an earlier effective date, because an award granted on a reopened claim may not be made effective prior to the date of the reopened claim The effective date currently assigned is the date of the reopened claim request. As such, the Veteran's claim of entitlement to an earlier effective date for service connection for sleep apnea is denied. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2020). Migraine Headaches In October 2007, the Veteran requested service connection for migraine headaches. The RO denied service connection for migraines in March 2008. Thereafter, the Veteran perfected his appeal. In a January 2011 decision, the Board denied service connection for migraine headaches. The Veteran had 120 days to appeal the decision to the United States Court of Appeals for Veterans Claims and did not do so. As such, the January 2011 Board decision is final. No further correspondence from the Veteran, which can be construed as a request for service connection for migraine headaches, was received by VA until a notice of intent to file a claim was received on May 1, 2017. A formal claim for service connection for migraine headaches was received in April 2018, within one year of the notice of the May 1, 2017 notice of intent to file claim being received. Thus, the claim is qualified to be considered as having been filed on May 1, 2017. In an August 2018 rating determination, the RO granted service connection for migraine headaches and assigned a 30 percent disability evaluation effective May 1, 2017. The Veteran maintains that an earlier effective date is warranted back to the date of his original filing. As noted above, the Board denied service connection for migraine headaches in January 2011 decision and the Veteran did not appeal to the Court. Thus, the decision became final. The next document received that can be construed as claim for service connection for migraine headaches was received on May 1, 2017. This is the date for which service connection has been granted for migraine headaches. For cases where an appellant seeks to reopen a claim for entitlement to an earlier effective date under 38 C.F.R. § 3.156, even assuming the presence of new and material evidence, reopening of a claim for entitlement to an earlier effective date cannot result in the actual assignment of an earlier effective date, because an award granted on a reopened claim may not be made effective prior to the date of the reopened claim The effective date currently assigned is the date of the reopened claim request. As such, the Veteran's claim of entitlement to an earlier effective date for service connection for migraine headaches is denied. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2020). REASONS FOR REMAND As it relates to the claim of service connection for a stroke, the Veteran has indicated that it is his belief that his PTSD either caused or aggravated his stroke and/or residuals thereof. The Board notes that service connection is currently in effect for PTSD and migraine headaches. The Veteran has submitted several articles showing a possible relationship between PTSD and strokes. In May 2018, an opinion was obtained with regard to the relationship between the Veteran's PTSD and a stroke. While the examiner opined that the Veteran's stroke was not proximately due to or the result of the service-connected PTSD, the examiner did not address the question of aggravation. Where the Board makes a decision based on an examination report that does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination." Goss v. Brown, 9 Vet. App. 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993). As it relates to the claim for an increased evaluation for PTSD, the Veteran, at the time of his June 2021 hearing, testified that his symptoms had worsened since the time of the last VA examination, performed in May 2018. VA is obliged to afford a veteran a contemporaneous examination where there is evidence of an increase in the severity of the disability. VAOPGCPREC 11-95 (1995). A veteran is competent to provide an opinion that his disability has worsened. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). As such, an additional VA examination to determine the severity of his PTSD is warranted. As it relates to the claim for an increased evaluation for migraine headaches, the Board notes that the last comprehensive VA examination afforded the Veteran as it relates to this disability occurred in May 2018. The Veteran has indicated that the migraines headaches have continued and that the symptoms associated with the headaches have worsened. Given the foregoing, the Veteran should be afforded a VA examination to determine the current severity of his migraine headaches. The matters are REMANDED for the following action: 1. Undertake appropriate development to obtain all outstanding VA and/or private treatment records related to the Veteran's outstanding claims. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified. 2. The Veteran should be afforded a VA psychiatric examination to determine the severity of his PTSD. All appropriate tests and studies, including psychological testing, should be performed and all findings should be reported in detail. The entire record must be made available to the examiner and the examiner should note such review in the report. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of the service-connected migraine headaches. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. To the extent possible, the examiner should identify any symptoms and functional impairments due to the migraine headaches alone and discuss the effect of the Veteran's migraine headaches on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding symptoms or functional impairment, 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. When addressing whether symptoms result in severe economic inadaptability, unemployability is not required. 4. If available, return the claims folder to the May 2018 VA stroke examiner. Following a complete review of the file, the examiner is requested to render the following opinions: Is it as likely as not (50 percent probability or greater) that any current stroke, or residuals thereof, is caused by any service-connected disorder, to include PTSD or migraine headaches? If not, is it at least as likely as not (50 percent probability or greater) that any current stroke, or residuals thereof, is aggravated by any service-connected disorder, to include PTSD and migraine headaches? If aggravation is found, to the extent that is possible, the examiner is requested to provide an opinion as to the approximate baseline level of severity of the nonservice-connected disorder before the onset of aggravation. If the May 2018 examiner is not available, refer the matter to an appropriate examiner to provide the above opinions. Complete detailed rationale is requested for each opinion that is rendered. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. S. Kelly, 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: Appeal to the United States Court of Appeals for Veterans Claims (Court) File with the Board a motion for reconsideration of this decision File with the Board a motion to vacate this decision File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED