Citation Nr: A21020439 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 190715-57303 DATE: December 22, 2021 ORDER Entitlement to an effective date prior to June 22, 2018, for the award of a 40 percent disability evaluation for service-connected bilateral hearing loss is denied. Entitlement to the assignment of an effective date of November 14, 2016 for the award of a 30 percent disability evaluation for service-connected tension headaches is granted. FINDINGS OF FACT 1. The Veteran did not timely appeal the July 2017 rating decision which awarded service connection for left ear haring loss, and assigned an initial noncompensable (zero percent) rating, and no new and material evidence was received within one year. 2. The Veteran filed an increased rating claim for his hearing loss disability that was received on June 22, 2018. 3. Within one year of a July 2017 rating decision which awarded service connection for a headache disorder and assigned a noncompensable (zero percent) initial rating, new and material evidence was added to the claims file continuing the original November 2016 claim. 4. The evidence is in equipoise as to whether the Veteran's headache disability manifested in symptoms warranting a 30 percent rating from the date of his November 2016 claim for service connection. CONCLUSIONS OF LAW 1. The criteria for the assignment of an earlier effective date prior to June 22, 2018, for the award of a 40 percent disability evaluation for service-connected bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.114, 3.400. 2. Resolving all doubt in the Veteran's favor, the criteria for the assignment of an effective date of November 14, 2016, for the award of a 30 percent disability evaluation for service-connected tension headaches have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.114, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1966 to February 1968. The AOJ issued a statement of the case (SOC) in June 2019 denying entitlement to effective dates prior to June 22, 2018 for the awards of increased ratings for the Veteran's service-connected hearing loss and headache disabilities. The Veteran opted the claims into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a July 2019 VA Form 10182, Decision Review Request: Board Appeal, identifying the July 2019 SOC. Therefore, the July 2019 SOC is the decision on appeal. In the VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. Therefore, the Board may only consider the evidence of record at the time of the July 2019 SOC, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). The Veteran testified at a videoconference hearing before the undersigned in May 2021. A transcript is of record. EARLIER EFFECTIVE DATE Initially, the Board notes that the Veteran has not expressed disagreement with the disability evaluations assigned to his service-connected disabilities, but rather the effective dates of those evaluations. See December 2018 Statement in Support of Claim; February 2019 Notice of Disagreement (NOD); May 2021 Hearing Transcript. The statutory and regulatory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. The effective date of an evaluation and an award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date the claim was received, or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. 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. The amended regulations, however, apply only to claims filed on or after March 24, 2015. As the claims at hand were initiated after this date, the former regulations do not apply. The evidence of record indicates that on November 14, 2016, the Veteran filed an intent to file for VA compensation (See VA Form 21-0966.) In December 2016, the Veteran filed, in part, a claim for service connection for hearing loss and a headache disability. See December VA Form 21-562EZ (signed by the Veteran and dated December 22, 2016). The AOJ granted entitlement to service connection for left ear hearing loss and for headaches in a July 2017 rating decision, and both disabilities were assigned an initial noncompensable (zero percent) rating. On August 14, 2017, the Veteran filed a duplicate copy of the previously submitted VA Form 21-562EZ (signed and dated December 22, 2016), without any additional accompanying statement of clarification as to why he was re-filing his 2016 claims form. In August 2017 correspondence, the AOJ responded to the Veteran, informing that, given his submission, VA would take no further action unless he (1) submitted or identified new evidence related to his previously decided issues; (2) filed a NOD on the prior decision; or (3) a motion for revision based on CUE in a prior VA decision. No further communication was received from the Veteran until June 22, 2018 when VA received from the Veteran a new VA Form 21-526EZ listing the same disabilities as those listed on the December 2016 VA Form 21-526EZ. On the June 2018 VA Form 21-526EZ, he also wrote and highlighted "Reconsideration" at the top of the form and requested that examinations be scheduled. Following receipt of this new claims form, the AOJ took steps to adjudicate whether higher ratings were warranted for headaches and hearing loss. In an August 2018 rating decision, the AOJ recognized right ear hearing loss as service-connected and increased the rating for bilateral hearing loss to 40 percent, effective August 6, 2018, which was the date of an audiological examination showing test results warranting the rating. Similarly, an increased rating for headaches was awarded to 30 percent, effective July 16, 2018, which was the date of a headache examination showing test results warranting the rating. In February 2019, the Veteran disagreed with the assigned effective dates for increase. The AOJ then issued another rating decision in June 2019 awarding the effective date of June 22, 2018 for both increased ratings, based on recognition of that date as the date of receipt of the Veteran's claim for increase. As noted above, the AOJ issued a SOC in June 2019 denying the assignment of effective dates earlier than June 22, 2018, and the Veteran elected to have the Board review the appeal under the modernized system. 1. Entitlement to an effective date prior to June 22, 2018, for the award of a 40 percent disability evaluation for service-connected bilateral hearing loss is denied. The Veteran seeks the assignment of an effective date of November 14, 2016 for the award of a 40 percent rating for hearing loss. While the Board recognizes this is the date the Veteran filed an intent to file benefits, and it is the date to which the AOJ awarded service connection for left ear hearing loss in a July 2017 rating decision, the Veteran did not appeal the assigned initial rating within one year. His submission of a duplicate November 2016 claims form again in August 2017 is not a new claim or benefits, and the AOJ informed him of this within the month, informing of his options for continuing an appeal. The Veteran's subsequent June 22, 2018 submission on a new claims form was properly accepted as a claim for increase by the AOJ. The Veteran did not assert at the time that his hearing loss was worse, nor did he identify any outstanding records that could be material to the question of the severity of his disability. He merely asked for "reconsideration" and did not disagree with any prior assessment, or even reference it. New and material evidence was also not received within one year of the July 2017 rating decision. Indeed, the examination supportive of the increased rating to 40 percent took place in August 2018, more than one year after the receipt of notice of the July 2017 rating decision. For these reasons, the Board finds that the July 2017 adjudication of the Veteran's hearing loss claim became final. After reviewing the totality of the evidence, the Board finds that the correct effective date of June 22, 2018 has been awarded by the AOJ, as it is consistent with the date VA received his claim for increase after the last prior final adjudication of his hearing loss rating. There were no prior unadjudicated claims for increase, and it is not factually ascertainable that an increase in severity occurred during the one-year period prior to submission of the June 2018 claim. In sum, the Board is precluded from assigning an effective date prior to June 22, 2018 for the assignment of a 40 percent disability for service-connected bilateral hearing loss. As such, the benefit sought on appeal must be denied. 2. Entitlement to the assignment of an effective date of November 14, 2016 for the award of a 30 percent disability evaluation for service-connected tension headaches is granted. As previously noted, the Veteran was initially awarded service connection for tension headaches and assigned a noncompensable disability evaluation in a July 2017 rating decision. An effective date of November 14, 2016, the date the Veteran filed his original intent to file a compensation claim, was assigned. See November 2017 VA Form 21-0966. The Veteran did not file a timely notice of disagreement. However, upon filing VA Form 21-526EZ in June 2018, the Veteran was afforded a VA examination that occurred within one year of the July 2017 rating decision. This July 2018 VA examination report contained new and material evidence pertaining to the severity of the Veteran's headache disability, and as such, the July 2017 rating decision insofar as it assigned an initial rating, did not become final. 38 C.F.R. § 3.156(b). Therefore, in determining whether the effective date for the increased rating to 30 percent was assigned correctly, the Board may assess whether it is factually ascertainable that the Veteran's 30 percent disability evaluation was warranted at any time from the date of his original claim, November 14, 2016 to June 22, 2018, the date the 30 percent disability evaluation was assigned by the AOJ. The Veteran has not asserted that his tension headaches warrant a higher disability rating, but rather that the 30 percent disability evaluation should be assigned an effective date of November 14, 2016. The Veteran's tension headaches are rated by analogy to 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100 for migraines. Under DC 8100, a noncompensable rating is warranted for migraines with less frequent attacks. A 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. The rating criteria of DC 8100 are considered successive, meaning that a claimant cannot fulfill the criteria of the higher rating without fulfilling those of the next lower rating. Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). This renders 38 C.F.R. §§ 4.7 and 4.21 inapplicable. Johnson, 30 Vet. App. at 252. The phrase "characteristic prostrating attacks" is used in the criteria corresponding to 10 percent and 30 percent ratings under DC 8100 to describe the nature and severity of migraines, but it is not defined in the regulation. Pursuant to Dorland's Illustrated Medical Dictionary 1531 (32d ed. 2012), prostration is defined as "extreme exhaustion or powerlessness." Thus, the phrase "characteristic prostrating attacks" is understood to describe migraine attacks that typically produce extreme exhaustion or powerlessness. Entitlement to a higher rating may not be denied "on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria." Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). As Diagnostic Code 8100 does not contemplate the effects of medication in alleviating symptoms, VA is precluded from considering the relief afforded by the Veteran's medication in evaluating the severity of the disability. Pursuant to Jones, the severity of the migraines must be determined, absent the ameliorative effect of the medication. Here, the initial noncompensable disability rating assigned by the AOJ was based largely on the assessment of a June 2017 examiner, who characterized the Veteran's headaches as less severe because headaches were mild and rare with the use of medication. In July 2018, a subsequent examiner identified more severe headaches with greater frequency, supporting the finding that a 30 percent rating was warranted. As the July 2018 assessment did not focus on the ameliorative effect of medication, but rather the frequency and severity of the Veteran's headaches themselves, the Board finds that the July 2018 assessment is the most probative indicator of the severity of the condition throughout the appeal period. Accordingly, the Board will resolve all doubt in the Veteran's favor and find that the 30 percent rating currently assigned should be made effective November 14, 2016, which is the effective date for the award of service connection. This is a complete grant of the benefit sought on appeal. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Bristow Williams, 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.