Citation Nr: A21020183
Decision Date: 12/17/21	Archive Date: 12/17/21

DOCKET NO. 190607-20909
DATE: December 17, 2021

ORDER

The claim for a rating in excess of 30 percent for migraines is dismissed.

FINDING OF FACT

The Veteran's increased rating claim for migraine headaches is being adjudicated in a separate Board decision to allow for a wider period of evidence to consider.

CONCLUSION OF LAW

The criteria for dismissal of the claim for a rating in excess of 30 percent for migraine headaches are met.  38 U.S.C. § 7105(d)(5).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from May 1966 to February 1969.

The Veteran provided testimony at an August 2021 Board hearing before the undersigned Veterans Law Judge (VLJ).  A complete transcript is of record.

This is a complex appeal that is spread over three Board decisions, issued concurrently, and is a product of the appeal of three rating decisions issued in May 2019 (increasing the rating for migraine headaches from 0 to 30 percent and deferring an increased rating for PTSD), in September 2019 (increasing the rating for PTSD from 30 percent to 70 percent as of February 19, 2019), and in January 2021 (granting TDIU and DEA as of October 30, 2019, and readjudicating the increased rating claims for PTSD and migraine headaches).  The Veteran filed VA Form 10182s with each rating decision challenging various aspects of the rating decisions.

The three Board decisions will address each of the issues appealed in the three Form 10182s.  While TDIU is viewed as part of a claim for an increased rating, the claim for TDIU has been granted and thus the issue is the appropriate effective date for it, which is addressed in a separate decision.

Here, the issue of a rating in excess of 30 percent for migraine headaches is the only issue appealed by the 10182 that was received in June 2019 (the issue of an increased rating for PTSD was also listed in the 10182, but a rating decision on that issue had not yet been issued, although it was subsequently in September 2019 and timely appealed).  There was no disagreement raised with the effective date of the rating for migraine headaches.  However, the Board will address this issue in the 210129-136005 docket as this allows for a wider appeal period and thus consideration of more evidence.

The reasoning for this is as follows.  The Veteran was granted a 30 percent disability rating by the Agency of Original Jurisdiction (AOJ) in a May 2019 rating decision.  The Veteran then filed a timely VA Form 10182 Notice of Disagreement in June 2019 appealing the increased rating claim and selected the Appeals Modernization Act (AMA) review hearing lane.  As such, were the increased rating for migraine headaches issue to remain in this docket, Board review would be limited to the evidence of record at the time of AOJ's May 2019 rating decision, evidence submitted by the Veteran at the hearing, as well as evidence submitted within 90 days following the hearing.  38 C.F.R. § 20.302 (b).  Conversely, because this issue is being adjudicated in the 210129-136005 docket, the evidence that may be considered is the evidence submitted at the time of the January 6, 2021 rating decision (that is approximately 18 months longer evidentiary period), as well as evidence submitted at the hearing and within 90 days following the hearing.

Hence, because the issue of a rating in excess of 30 percent for migraine headaches is being addressed in a separate docket with the same date of claim, it renders this appeal stream moot, and the claim in this stream is dismissed.

 

MATTHEW W. BLACKWELDER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	H. Yoo, 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.