Citation Nr: 21068352 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 18-16 865 DATE: November 10, 2021 ORDER Entitlement to an effective date prior to February 21, 2017 for the grant of service connection for migraines is denied. REMANDED Entitlement to a rating in excess of 10 percent for migraines is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. On February 21, 2017, the Veteran's intent to file a claim of compensation was received by VA. 2. In a July 2017 rating decision, service connection was granted for migraines with an effective date of February 21, 2017. 3. The currently assigned effective date of February 21, 2017 for the grant of service connection for migraines is the earliest date assignable by law; there is no evidence demonstrating that the Veteran filed a claim prior to this date, to include an intent to file a claim for compensation within one year of this claim date. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to February 21, 2017 for the grant of service connection for migraines are not met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110, 7104, 7105 (2012); 38 C.F.R. §§ 3.159, 3.160, 3.400, 20.302 (a), 20.1103 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served honorably in the United States Navy from April 1997 to March 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. 1. Entitlement to an effective date prior to February 21, 2017 for the grant of service connection for migraines. The Veteran contends that she is entitled to an earlier effective date for the grant of service connection for her migraines. The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim for increase, or a claim reopened after final disallowance, will be the date of receipt of the claim. 38 U.S.C. § 5110. The implementing regulation clarifies that the effective date of an evaluation and an award of compensation based on an original claim "will be the date of receipt of the original claim." 38 C.F.R. § 3.400. However, if the claim is received within one year after separation from service, the effective date of an award of disability compensation shall be the day following separation from active service. 38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400 (b)(2)(i). Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. The amendments also, inter alia, eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen. See 38 C.F.R. §§ 3.151, 3.155, 3.160. The amended regulations apply only to claims filed on or after March 24, 2015, such as here. The only argument regarding the issue of an earlier effective date was received at the time of the hearing conducted by the undersigned. At that time, the representative argued that the effective date should go back to 2017. There was no argument that a claim was submitted prior to February 2017. The record shows that the Veteran submitted an intent to file a claim for compensation that was received by VA on February 21, 2017. In a July 2017 rating decision, service connection was granted for migraines with an effective date of February 21, 2017. There is no evidence of any communication from the Veteran of any type prior to February 2017. The Veteran is already in receipt of the earliest effective date warranted for her migraines based on the date her intent to file a claim was received by VA. Accordingly, an earlier effective date for the grant of service connection is not warranted. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for migraines. The Veteran contends that her migraine symptomology is worse than the rating currently assigned. The Board notes that she was last afforded a VA examination for compensation and pension purposes in May 2017. Since this examination, the Veteran has stated that her symptoms have worsened. The Veteran testified at the Board hearing that she has been placed on different medications of varying strengths since the last VA examination. In addition, she testified that her migraine symptoms occur up to twice a week lasting from several hours to two to three days in duration. Furthermore, she testified that she has light and noise sensitivity as a result of her migraines, which affects her ability to participate in outdoor activities with her children. This evidence suggests that the Veteran's symptoms may have increased in severity since the last VA examination. The VA's duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. Peters v. Brown, 6 Vet. App. 540, 542 (1994). As the Veteran was last afforded a VA examination over four years ago and there is evidence demonstrating that her disability may have worsened, a more contemporaneous examination is warranted in order to ensure that the record reflects the current severity of the Veteran's service-connected migraines. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (determining that Board should have ordered contemporaneous examination of Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating); Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that where the record does not adequately reveal the current state of that disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination). Accordingly, a remand is necessary for a new VA examination to determine the current severity of her service-connected migraines. 2. Entitlement to a TDIU due to service-connected disabilities. In the case of Rice v. Shinseki, 22 Vet. App. 447, 455 (2009), the United States Court of Appeals for Veterans' Claims (the Court) held that a claim for TDIU due to service-connected disabilities is part and parcel of an increased rating claim when such claim is raised by the record. The Board finds that the issue of TDIU has been raised by the record. As such, a remand is required for further development. Furthermore, the TDIU claim is inextricable intertwined with the claims being remanded by the Board and must be remanded as well. The matters are REMANDED for the following action: 1. Obtain updated VA and/or private treatment records to the extent possible. If such records are unavailable, the Veteran's claims file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 2. Issue a VCAA notice letter to the Veteran concerning a claim for a TDIU. 3. Provide the Veteran with a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. 4. Schedule the Veteran with a VA examination to determine the current severity of her service-connected migraines. The evidentiary record must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. A complete history, including an employment history, should be elicited directly from the Veteran and any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. The examiner should discuss the impact, if any, the Veteran's migraines has on her activities of daily living, including her ability to obtain and maintain employment. (Continued on the next page) 5. After the above has been completed to the extent possible, complete any additional development deemed necessary to adjudicate the issue of entitlement to TDIU. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.T. Massey, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.