Citation Nr: 21005476 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 13-27 742 DATE: February 1, 2021 ORDER Service connection for a headache disorder, to include as secondary to persistent depressive disorder, is granted. An effective date earlier than September 1, 2010 for the grant of service connection for persistent depressive disorder is denied. REMANDED The issue of entitlement to an increased evaluation for persistent depressive disorder, currently evaluated as 50 percent disabling prior to March 7, 2017, as 100 percent disabling from March 7, 2017 to July 16, 2019, and as 70 percent disabling thereafter is remanded. VETERAN’S CONTENTIONS The Veteran contends that he has a headache disorder secondary to his service-connected persistent depressive disorder. He also asserts that he is entitled to an effective date earlier than September 1, 2010 for the grant of service connection for persistent depressive disorder. FINDINGS OF FACT 1. The Veteran’s headache disorder was caused by his service-connected persistent depressive disorder. 2. The initial claim for service connection for PTSD was denied in a January 2000 rating decision. The Veteran filed a timely notice of disagreement (NOD) in January 2000. After the issuance of a statement of the case (SOC) in February 2000, the Veteran filed a timely substantive appeal in May 2000. Thereafter, the Board denied the issue of entitlement to service connection for PTSD in February 2002. The Veteran was notified of the denial in February 2002 and, as the Veteran neither appealed the decision to the United States Court of Appeals for Veterans Claims (Court) nor requested reconsideration, it became final. 3. The Veteran filed a claim to reopen service connection for PTSD in September 2010. The claim for service connection for PTSD was denied in a December 2010 rating decision. The Veteran filed a timely NOD in February 2011. After the issuance of a SOC in July 2013, the Veteran filed a timely substantive appeal in September 2013. The claim for service connection for PTSD was recharacterized as a claim for service connection for an acquired psychiatric disorder, to include depressive disorder, and granted in an August 2017 Board decision. 4. In August 2017, the RO implemented the Board’s grant of service connection for persistent depressive disorder, and assigned an effective date of September 1, 2010, the date the application to reopen the previously denied claim was received. CONCLUSIONS OF LAW 1. The criteria for service connection for a headache disorder are met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for an effective date earlier than September 1, 2010 for the grant of service connection for persistent depressive disorder are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.156, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1968 to November 1971. These matters come to the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Board previously remanded the claims for additional development. The case now returns to the Board for appellate review. 1. Entitlement to service connection for a headache disorder, to include as secondary to persistent depressive disorder Generally, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Further, service connection may be established on a secondary basis for a disability which was either caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical evidence. VA must also consider all favorable lay evidence of record. See 38 U.S.C. § 5107 (b); see also Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (a Veteran is competent to report on that of which he or she has actually observed and is within the realm of his or her personal knowledge). At the outset, the Board notes that the Veteran is service connected for persistent depressive disorder. The Board also notes that a current diagnosis of a headache disorder has been confirmed by the evidence of record. In July 2019 a VA examiner diagnosed the Veteran with tension headaches. See July 2019 VA Examination Report. Thus, the remaining question is whether the Veteran's current headache disorder is related to his service-connected persistent depressive disorder. In this regard, the evidence of record includes an opinion from Dr. S.E. concluding that the Veteran’s headaches are caused by his service-connected persistent depressive disorder. Dr. S.E. reasoned that the Veteran reported that his headaches began in service and have almost always been preceded by stress and increased depression. This is supported by the Veteran’s treatment records dated August 5, 1999 and September 10, 1999 at which times he reported recurrent headaches, especially associated with stressful situations/worse with stress. Dr. S.E. also noted in support that the July 2019 VA examiner opined that the Veteran’s headaches were as likely as not due to the Veteran’s service-connected posttraumatic stress disorder (PTSD). Although the Veteran is not service connected for PTSD, but rather persistent depressive disorder, the rationale provided by the examiner also supports a positive nexus for the Veteran’s headaches and his persistent depressive disorder. Namely, psychological stress and emotional strain have absolutely been linked to the occurrence of headaches and it is clear that the Veteran’s persistent depressive disorder symptoms include psychological stress and emotional strain as noted by VA examinations and independent psychological evaluations. It is well established that mental disorders both cause and aggravate headaches. Research has shown that headaches and depression have a bidirectional relationship. Psychological stress as a result of depression and anxious distress is generally acknowledged to be a central contributor to headache. Research shows psychological stress can be a predisposing factor to headache onset, accelerate the progression of headache disorder into a chronic condition and precipitate and exacerbate individual headache episodes. The Board finds the opinion from Dr. S.E. to be particularly probative because he considered the relevant history of the Veteran's headaches disorder, provided sufficiently detailed descriptions of the condition, and provided analysis to support the opinion concerning the etiology of the condition. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). The Board acknowledges that the evidence of record also includes an October 2019 VA examination report in which the examiner opined that it was less likely than not that the Veteran’s current diagnosis of a headache disorder was proximately due to or the result of the diagnosis of persistent depressive disorder. Nevertheless, in light of the positive and negative evidence of record, to specifically include the September 2020 opinion from Dr. S.E. linking the Veteran's headache disorder to his service-connected persistent depressive disorder, the Board finds that the evidence is at least in equipoise regarding whether the Veteran's headache disorder is related to service. Accordingly, resolving all doubt in his favor, service connection for a headache disorder is warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. Entitlement to an effective date earlier than September 1, 2010 for the grant of service connection for persistent depressive disorder Generally, the effective date for an award of compensation or claim for increase is the date of receipt of the claim or date entitlement arose, whichever is later. The effective date of an award based on a claim reopened after final adjudication shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (q)(2), (r). 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The date of entitlement is the date the claimant meets the basic eligibility criteria for the benefit. Additionally, 38 U.S.C. § 5101 (a) provides that "[a] specific claim in the form prescribed by the Secretary . . . must be filed in order for benefits to be paid or furnished to any individual." The Board acknowledges that effective March 24, 2015, VA amended its regulations so that all claims, in order to be valid, must be submitted on a form prescribed by the Secretary. 38 C.F.R. § 20.201; 79 Fed. Reg. 57660, 57696 (Sept. 25, 2014) (eff. Mar. 24, 2015). As the Veteran's claim at issue was submitted prior to the effective date of the amendment, the prior law and regulations governing claims will be applied in this case. A "claim" is defined as a formal or informal communication, in writing, requesting a determination of entitlement, or evidencing a belief in entitlement to a benefit and VA is required to identify and act on informal claims for benefits. 38 C.F.R. §§ 3.1 (p). An informal claim is "[a]ny communication or action indicating an intent to apply for one or more benefits." 38 C.F.R. § 3.155 (a). It must "identify the benefit sought." Id. Thus, the essential elements for any claim, whether formal or informal, are "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing." Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). VA must look to all communications from a claimant that may be interpreted as an application or claim, both formal and informal, for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). By way of history, the Veteran filed an initial claim for service connection for posttraumatic stress disorder (PTSD) via correspondence received by VA on March 25, 1999. The claim for service connection for PTSD was denied in a January 2000 rating decision. The Veteran filed a timely notice of disagreement (NOD) in January 2000. After the issuance of a statement of the case (SOC) in February 2000, the Veteran filed a timely substantive appeal in May 2000. Thereafter, the Board denied the issue of entitlement to service connection for PTSD in February 2002. The Veteran was notified of the denial in February 2002 and, as the Veteran neither appealed the decision to the United States Court of Appeals for Veterans Claims (Court) nor requested reconsideration, it became final. Subsequently, the Veteran filed a claim to reopen service connection for PTSD in September 2010. The claim for service connection for PTSD was denied in a December 2010 rating decision. The Veteran filed a timely NOD in February 2011. After the issuance of a SOC in July 2013, the Veteran filed a timely substantive appeal in September 2013. The claim for service connection for PTSD was recharacterized as a claim for service connection for an acquired psychiatric disorder, to include depressive disorder, and granted in an August 2017 Board decision. Pursuant to the August 2017 Board remand, the RO granted a claim for service connection for persistent depressive disorder with an evaluation of 50 percent in an August 2017 rating decision. The claim was granted effective September 1, 2010, the day VA received the Veteran’s application to reopen the previously denied claim. To reiterate the previously stated law, the effective date of an award of compensation based on a claim reopened after final disallowance shall be fixed in accordance with the facts found but shall be no earlier than the date of receipt of the application thereof. The February 2002 decision became final and the Veteran submitted a claim to reopen on September 1, 2010. Therefore, the earliest possible effective date for the Veteran's claim to reopen is September 1, 2010, the date VA received his application to reopen. REASONS FOR REMAND Entitlement to an increased evaluation for persistent depressive disorder, currently evaluated as 50 percent disabling prior to March 7, 2017, as 100 percent disabling from March 7, 2017 to July 16, 2019, and as 70 percent disabling thereafter is remanded. Subsequent to the most recent January 2020 statement of the case (SOC) on the issue of entitlement to an increased evaluation for persistent depressive disorder, currently evaluated as 50 percent disabling prior to March 7, 2017, as 100 percent disabling from March 7, 2017 to July 16, 2019, and as 70 percent disabling thereafter, VA treatment records pertinent to the issue was associated with the claims file. The Board may not consider additional evidence that was not previously reviewed by the agency of original jurisdiction (AOJ) unless a waiver of initial AOJ review is obtained from the Veteran. 38 C.F.R. § 20.1304(c). In October 2020 correspondence, the Board provided the Veteran the opportunity to waive AOJ review and informed him that if the Board did not hear back from him within 45 days, it would remand his appeal to the AOJ for review. A review of the claims file reveals that the Veteran has not filed a waiver or responded to the October 2020 correspondence. Accordingly, a remand is required for initial consideration by the AOJ and issuance of an SSOC on the issue of entitlement to an increased evaluation for persistent depressive disorder, currently evaluated as 50 percent disabling prior to March 7, 2017, as 100 percent disabling from March 7, 2017 to July 16, 2019, and as 70 percent disabling thereafter. The matters are REMANDED for the following action: Readjudicate the claim for entitlement to an increased evaluation for persistent depressive disorder, currently evaluated as 50 percent disabling prior to March 7, 2017, as 100 percent disabling from March 7, 2017 to July 16, 2019, and as 70 percent disabling thereafter, with consideration of all pertinent evidence, to include the evidence added to the claims file since the most recent January 2020 SOC. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an SSOC that reflects consideration of all additional evidence received. S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Smith-Jennings, 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.