Citation Nr: 21073985 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 17-58 412 DATE: December 13, 2021 ORDER Entitlement to an effective date earlier than May 10, 2016 for service connection for fibromyalgia is denied. REMANDED Entitlement to an evaluation in excess of 30 percent for mixed vascular and tension headaches is remanded. FINDING OF FACT 1. In a June 3, 2014 rating decision, the Regional Office (RO) denied service connection for fibromyalgia. A notice of disagreement was not received within one year of the date of that decision, and, thus, it became final. No material evidence pertinent to the claim was received within one year of the issuance of that decision. No motion to revise it based on clear and unmistakable error has been filed. 2. Following the final June 2014 rating decision, the Veteran first filed an application to reopen the claim for service connection for fibromyalgia on May 10, 2016. The claim was granted by the RO, effective May 10, 2016, in a May 24, 2017 rating decision. CONCLUSION OF LAW 1. The June 3, 2014 rating decision is final. 38 U.S.C. §§ 7103, 7104, 7105; 38 C.F.R. § 20.1100. 2. The criteria for entitlement to an effective date prior to May 10, 2016 for the grant of service connection for fibromyalgia have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400, 20.1100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 24, 1989 to January 23, 1993 to include service in Southwest Asia. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2017 and June 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In an October 2018 rating decision, the RO granted entitlement to total disability due to individual unemployability effective March 10, 2017. Thus, the Veteran has been receiving benefits equivalent to a 100 percent rating from that date. In July 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. Entitlement to an effective date earlier than May 10, 2016 for service connection for fibromyalgia The Veteran contends that he is entitled to an earlier effective date for the grant of service connection for fibromyalgia. Specifically, the Veteran believes his effective date should be September 16, 2013, the date of his original application for service connection for fibromyalgia. The effective date based on the submission of new and material evidence received after a final disallowance is the date of the receipt of the new claim. 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.400(q)(2), 3.400(r). It is settled law that the effective date for the grant of service connection following a final decision is the date of the reopened claim. See Sears v. Principi, 16 Vet. App. 244, 248 (2002) ("the Court thus holds that the effective date statute, 38 U.S.C. § 5110(a), is clear on its face with respect to granting an effective date for an award of VA periodic monthly benefits no earlier than the date that the claim for reopening was filed"). In the Sears case, the Court explained that the statutory framework did 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. The Court explained that the term "new claim", as it appeared in 38 C.F.R. § 3.400(q), means a claim to reopen a previously and finally decided claim. A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). Historically, the RO denied the Veteran's claim for service connection for fibromyalgia in a June 3, 2014 rating decision. The RO based its decision on a May 12, 2014 VA examination. The May 2014 VA examiner indicated the Veteran did not have a diagnosis or symptoms of fibromyalgia and instead attributed his symptoms to other disabilities. The Board notes that the Veteran's VA medical records were not associated with the file at the time of the examination, and the Veteran's VA medical records show treatment for fibromyalgia since 2001. The Veteran received notice of his appeal rights and did not appeal the June 3, 2014 rating decision within one year. Thus, it became final. On May 10, 2016, the RO received the Veteran's request to reopen his claim for service connection for fibromyalgia. In a June 2016 rating decision, the RO denied the claim for service connection because the evidence submitted was not new and material. The Veteran timely appealed that decision to a Decision Review Officer, and, in a May 24, 2017 rating decision, was granted service connection for fibromyalgia effective May 10, 2016. In June 2017, the Veteran filed a notice of disagreement (NOD) with the effective date of the award of service connection for fibromyalgia. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that an effective date prior to May 10, 2016 for the grant of service connection for fibromyalgia is not warranted. As discussed above, the June 2014 rating decision became final. The Veteran was notified of the rating decision and of his appellate rights, but he did not appeal the decision. He also did not file a motion to revise the decision based on clear and unmistakable error. The evidence of record contains no communication from the Veteran indicating an intent to file a claim for service connection for a fibromyalgia at any time between the final June 2014 rating decision and May 2016. As noted above, the effective date of an award of disability compensation based on a claim to reopen after a final disallowance shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(q), (r). As such, the RO assigned the earliest possible effective date for its grant of the reopened claim, which was based on the procedural history as outlined in detail above, is determined to be May 10, 2016. If the Veteran wishes for the Board to review the merits of the June 2014 decision, in essence arguing the content of what he had filed in the June 2014 claim, the Veteran must file a clear and unmistakable error (CUE) motion. See 38 C.F.R. § 3.105(a). Such has not been filed to date. The earliest date after the June 2014 rating decision that the Veteran expressed an intent to reopen his claim for service connection is May 10, 2016, which is the presently assigned effective date. Under the controlling law and regulations outlined above, the award of compensation based on a reopened claim may be no earlier than the date of receipt of the claim, or the date entitlement arose, whichever is the latter. 38 C.F.R. § 3.400 (r). Thus, the May 10, 2016, date of claim is the appropriate effective date, because even if the date that the entitlement arose could be found to precede it, the latter of the two dates controls. 38 C.F.R. § 3.400. REASONS FOR REMAND Entitlement to an evaluation in excess of 30 percent for mixed vascular and tension headaches is remanded. The Veteran contends that his headaches have worsened since his last VA examination. The Veteran testified at a hearing before the undersigned in July 2021. At that hearing, he testified that the symptoms of his service-connected headaches had worsened since he was last examined by VA. Thus, considering such allegations, the Board finds that the Veteran should be afforded a new VA examination. See 38 C.F.R. §§ 3.326, 3.327; Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Accordingly, this case must be remanded so that a new VA examination may be obtained. The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected 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. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. Taylor, 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.