Citation Nr: 21023980 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-30 503 DATE: April 21, 2021 ORDER Entitlement to an effective date prior to June 30, 2016 for the award of service connection for residuals of traumatic brain injury is denied. Entitlement to an effective date prior to June 30, 2016 for the award of service connection for migraine headaches is denied. Entitlement to an effective date prior to June 30, 2016 for the award of service connection for hemi-facial spasm is denied. Entitlement to an effective date prior to June 30, 2016 for the award of service connection for trigeminal neuralgia is denied. Entitlement to an effective date prior to January 12, 2016 for the award of a 40 percent rating for scars of the bilateral knees and left foot is denied. Entitlement to an effective date prior to January 12, 2016 for the award of a 30 percent rating for status post metatarsal base fracture of the left foot is denied. REMANDED Entitlement to a rating in excess of 10 percent for hemi-facial spasm is remanded. Entitlement to a rating in excess of 10 percent for trigeminal neuralgia is remanded. FINDINGS OF FACT 1. The Veteran’s claims for service connection for residuals of traumatic brain injury, migraine headaches, hemi-facial spasm and trigeminal neuralgia were received on January 12, 2016. 2. Prior to January 12, 2016, it was not factually ascertainable that the Veteran’s scars of the bilateral knees and left foot met the criteria for assignment of a 40 percent rating. 3. Prior to January 12, 2016, it was not factually ascertainable that the Veteran’s metatarsal base fracture of the left foot with degenerative arthritis met the criteria for a 30 percent rating. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date prior to June 30, 2016 for the award of service connection for residuals of traumatic brain injury have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.156, 3.400. 2. The criteria for entitlement to an effective date prior to June 30, 2016 for the award of service connection for migraine headaches have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.156, 3.400. 3. The criteria for entitlement to an effective date prior to June 30, 2016 for the award of service connection for hemi-facial spasm have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.156, 3.400. 4. The criteria for entitlement to an effective date prior to June 30, 2016 for the award of service connection for trigeminal neuralgia have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.156, 3.400. 5. The criteria for entitlement to an effective date prior to January 12, 2016 for the award of a 40 percent rating for scars of the bilateral knees and left foot have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.156, 3.400. 6. The criteria for entitlement to an effective date prior to January 12, 2016 for the award of a 30 percent rating for status post metatarsal base fracture of the left foot have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.156, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1983 to January 1987. This matter is on appeal before the Board of Veterans Appeals (Board) from January 2016 and July 2017 decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, a Board videoconference hearing was held before the undersigned; a transcript of the hearing is of record. The Board notes that in an October 2018 rating decision, the RO, in pertinent part, reduced the rating for the Veteran’s migraine headaches from 50 percent to 30 percent effective September 27, 2018. In an October 2018 notice of disagreement, the Veteran, in pertinent part, disagreed with the reduction and argued that the maximum schedular rating of 50 percent was appropriate. Also, during the November 2019 Board hearing, the Board received testimony from the Veteran that his migraine headaches warranted the maximum schedular rating of 50 percent. Then, in a January 2020 rating decision, the RO, in pertinent part, restored the rating for migraine headaches to 50 percent, nullifying the earlier reduction. Consequently, the Veteran’s appeal of the reduction has been addressed by the RO and the benefit sought (i.e. restoration of the 50 percent rating for migraine headaches) has been granted. Accordingly, this issue is no longer on appeal and will not be addressed in the decision below. I. Effective Dates The statutory guidelines for the determination of an effective date of an award are set forth in 38 U.S.C. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. In cases involving direct service connection, the effective date will be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Otherwise, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). On March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments are only effective for claims and appeals filed on or after March 24, 2015. As the Veteran has essentially alleged that he had an open appeal in this case that dates to an original claim from January 2009, (i.e. prior to March 24, 2015), the Board will apply the regulations in effect prior to March 24, 2015. The Veteran is not prejudiced by this application as these regulations are broader in scope. Under these regulations, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a claimant or the claimant’s representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a) (in effect prior to March 24, 2015). There is no set form that an informal written claim must take. All that is required is that the communication indicates an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (1999). The claimant must describe the nature of the disability for which he is seeking benefits, such as by describing a body part or symptom of the disability. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). A Board decision becomes final and binding if the veteran does not timely perfect an appeal of the decision. 38 U.S.C. § 7104. Previous determinations that are final and binding, including decisions of service connection, will be accepted as correct in the absence of clear and unmistakable error (CUE). 38 C.F.R. § 3.105 (a). 1-4. Effective dates for service connection for TBI, migraine headaches, hemi-facial spasms, and trigeminal neuralgia. In January 2009, the Veteran filed a claim for service connection for severe facial pain, left eye area. In an April 2009 rating decision, the RO denied service connection for severe facial pain of the left eye area. In a March 2010 notice of disagreement, the Veteran appealed the April 2009 denial, recharacterizing the claim for service connection for severe facial pain as one trigeminal neuralgia. He indicated that the trigeminal neuralgia was the result of a fall he had during service in April 1984. In June 2012, the RO issued a statement of the case, continuing the denial of service connection for severe facial pain of the left eye area (also claimed as trigeminal neuralgia). In July 2012, the Veteran submitted a VA Form 9, perfecting an appeal of the denial. In a March 2016 decision, the Board, in pertinent part, denied service connection for left trigeminal neuralgia. The Veteran did not appeal this decision to the Court of Appeals for Veterans Claims (Court). In a communication received on June 30, 2016, the Veteran filed a claim for service connection for residuals of TBI. In the July 2017 rating decision, the RO granted service connection for residuals of traumatic brain injury and service connection for migraines, hemi-facial spasm, and trigeminal neuralgia, all as associated with TBI. An effective date of June 30, 2016 was assigned for all awards. The effective date was assigned based on June 30, 2016 being the date the RO received the Veteran’s claim for the underlying claim for residuals of TBI. A 70 percent rating was assigned for TBI, a 50 percent rating was assigned for migraine headaches, a 10 percent rating was assigned for hemi-facial spasm, and a 10 percent rating was assigned for trigeminal neuralgia. In a July 2017 notice of disagreement, the Veteran argued that the effective date of the awards of service connection for TBI residuals, migraine headaches, trigeminal neuralgia, and hemi-facial spasm should be January 23, 2009. He indicated that he originally filed the claim for service connection for trigeminal neuralgia on January 23, 2009 and that this was claim was eventually denied by the March 2016 Board decision. Then, he filed the claim with the RO for service connection, which was received on June 30, 2016 and provided the basis for the RO to assign the effective date of June 30, 2016. The Veteran indicated that he had consistently pursued the claim for service connection for trigeminal neuralgia since January 23, 2009 and therefore, he felt that the effective date for the award of service connection for this disability should be January 23, 2009. He also felt that service connection for hemi-facial spasm, TBI and migraines should be effective January 23, 2009 since he had always stated that the trigeminal neuralgia was caused by injury to his head, and ultimately service connection for all the noted disabilities was granted based on these disabilities being caused by injury to his head. The Veteran felt that VA should have reviewed his medical records and considered his TBI, hemi-facial spasm and migraines as inferred conditions in conjunction with his initial claim for service connection for trigeminal neuralgia based on his trigeminal neuralgia being caused by TBI. At the November 2019 Board hearing, the Veteran testified that he had conversations about suffering from residuals from his head injury in service earlier than June 2016. He indicated that he had mentioned to his doctor that he had had a fall in 1984. He thought he first talked to his doctor about this traumatic brain injury in approximately 2001 when he first started filing claims for disability benefits. He reported that since then he had informed his medical doctors about his symptoms. He noted that in approximately 2007, his trigeminal neuralgia was diagnosed but it had actually been present before that. He also noted that he had multiple surgical procedures for the disability prior to 2016. Moreover, he emphasized that he filed a claim for service connection for the disability in approximately 2007 (i.e. January 23, 2009) but it was denied until 2017 and that he thought the effective date should date back to when he filed the original claim. The above summarized evidence does show that the Veteran filed the claim for service connection for trigeminal neuralgia that was received on January 23, 2009. However, this claim was ultimately denied by the March 2016 Board decision. The Veteran did not appeal this decision to the Court. Consequently, the March 2016 Board decision became final and binding. 38 U.S.C. § 7104. Therefore, the Board decision precludes assigning an effective date prior to March 2016 for the award of service connection for trigeminal neuralgia in the absence of clear and unmistakable error, which has not been found in this case. Subsequently, the Veteran’s claim for service connection for residuals of TBI was received on June 30, 2016. There is no indication in the record that any earlier claim for service connection for TBI or for any residuals thereof (other than the finally denied claim for trigeminal neuralgia) was received earlier than June 30, 2016. Once again, the effective date of an award of service connection is generally the date the claim was received or the date entitlement arose, whichever is the later. Consequently, as the claim for service connection for TBI residuals, which was found to include associated claims for service connection for migraines and hemi-facial spasm, and the claim to reopen for service connection for trigeminal neuralgia, was received on June 30, 2016, there is no basis in the record for assigning an effective date for the award of service connection for these disabilities that is any earlier than June 30, 2016. The preponderance of the evidence is against these claims and they must be denied. 5-6. Effective dates prior to January 12, 2016 for a 40 percent rating for painful scars of the bilateral knees and left foot and for a 30 percent rating for metatarsal base fracture of the left foot with degenerative arthritis. In addition to the general rules for assigning effective date summarized above, the effective date for an increased rating for disability compensation is the earliest date it is factually ascertainable that an increase in disability occurred if a claim is received within one year from such date; otherwise, the effective date is the date of receipt of the claim. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). In a communication received on September 13, 2012, the Veteran claimed service connection for left knee disability as secondary to his already service-connected right knee disability. In a September 2013 rating decision, the RO, in pertinent part, granted service connection for left knee medial meniscal tear status post arthroscopy as secondary to service-connected right knee medial meniscal tear status post arthroscopy and also granted service connection for scars on both knees status post arthroscopies. A 20 percent rating was assigned for the left knee and a 0 percent rating was assigned for the scars. Both ratings were assigned effective August 28, 2012, the date the RO received the Veteran’s claim. In a communication received on October 29, 2013, the Veteran claimed service connection for left foot and right shoulder disabilities, to include as secondary to service-connected right and left knee disabilities. At an April 2014 VA left foot examination, the examiner found that the Veteran’s underlying left foot injury was moderate in degree. The examiner noted that the Veteran had a scar on the dorsum of the left foot that was not painful or unstable. In a May 9, 2014 rating decision, the RO granted service connection for metatarsal base fracture of the left foot with scar and assigned a 10 percent rating effective October 29, 2013. The effective date was assigned based on the receipt of the claim on October 29, 2013. It was noted that the Veteran had underwent open reduction internal fixation surgery of the 3rd metatarsal base due to the displaced fracture, which created a left foot scar that was found to be asymptomatic by an April 2014 VA examiner. At a July 2014 VA knee examination, the Veteran was found to have scars of the knees, but they were not found to be painful or unstable or covering an area greater than 39 square centimeters. In a January 2015 rating decision, the RO continued the 10 percent rating for metatarsal base fracture of the left foot with scar. The RO noted that the scar, located on the left foot, was superficial and linear and found not to be painful. At a March 30, 2015 VA contract examination, the Veteran was found to have three painful scars of the left knee and three painful scars of the right knee. None of these scars were found to be unstable. In a July 2015 rating decision, the RO, in pertinent part, granted a separate 30 percent evaluation for painful scars of the bilateral knees. A 30 percent rating was assigned effective March 30, 2015. The decision noted that the 30 percent rating was assigned based on five or more painful scars. The decision indicated that the effective date of March 30, 2015 was assigned because this was the date of the VA contract examination that showed the five or more painful scars. At a January 12, 2016 VA contract scars and foot examination, the Veteran’s left foot scar was found to be both painful and unstable. In a January 2016 rating decision, the RO recharacterized the separate rating for the Veteran’s lower extremity scars to “painful scars of the bilateral knees and left foot secondary to surgery.” The RO assigned an increased, 40 percent rating for the scars effective January 12, 2016. The RO noted that the rating was assigned based on the Veteran having been found to have five or more painful or unstable scars with at least one scar being both painful and unstable. This rating is assigned according to 38 C.F.R. § 4.118, Diagnostic Code 7804, which allows for assignment of a 40 percent rating for scarring when five or more scars, which are unstable or painful are present and one or more of the scars are both unstable and painful. Id., Note 2.   The RO noted that the effective date was assigned based on this constellation of scars being found on a January 12, 2016 VA contract examination. The January 2016 rating decision also increased the rating for the Veteran’s left foot disability to 30 percent effective January 12, 2016. The RO noted that this increase was based on a finding from the January 12, 2016 VA contract foot examination that the Veteran had severe symptoms. This rating was assigned under 38 C.F.R. § 4.71a, Diagnostic Code 5284, which allows for assignment of a 30 percent rating for severe injury of the foot.   In a January 2016 notice of disagreement, the Veteran sought earlier effective dates, asserting that the 40 percent rating for the painful scars should be effective October 29, 2013 and that the 40 percent rating for the metatarsal base fracture of the left foot should also be effective October 29, 2013. Regarding the assignment of the 40 percent rating for scarring of the knees and left foot, the evidence did not show that the Veteran had five or more scars in these areas that were either painful or unstable, with one scar that was both painful and unstable until January 12, 2016 when the VA contract examiner found that the Veteran’s left foot scar was both painful and unstable. Prior to this date, the Veteran had not been found to have any scars of the knees or left foot that were both painful and unstable. Consequently, there was no basis for assigning a higher 40 percent rating prior to this date, as having at least one scar that is both unstable and painful is required to support this higher rating. See 38 C.F.R. § 4.118, Diagnostic Code 7804, Note 2. Accordingly, as the date entitlement arose is January 12, 2016 and no earlier, the claim for an earlier effective date for the 40 percent rating for scarring of the bilateral knees and left foot must be denied. 38 C.F.R. § 3.400. Regarding the assignment of the 30 percent rating for the left foot status post metatarsal fracture, prior to January 12, 2016, the evidence did not show that this disability constituted a severe foot injury. In this regard, the April 2014 examiner found only that the Veteran’s foot injury was moderate in degree and it was not until the January 12, 2016 examination that the injury was characterized as severe. There is also no other medical evidence from the effective date of service connection (i.e. October 29, 2013) to January 11, 2016 establishing that the foot injury was severe. Consequently, the date entitlement to a higher, 30 percent rating, arose is January 12, 2016. Accordingly, the claim for an effective date earlier than this for assignment of the 30 percent rating for status post left foot metatarsal fracture must be denied. 38 C.F.R. § 3.400. REASONS FOR REMAND 7-8. Entitlement to a rating in excess of 10 percent for hemi-facial spasm and a rating in excess of 10 percent for trigeminal neuralgia are remanded. Additional evidence pertinent to the claims for an increased rating for left hemi-facial spasm and trigeminal neuralgia has been added to the claims file following the last adjudication by the Agency of Original Jurisdiction (AOJ) in the April 2018 statement of the case (SOC), including updated VA medical records, which include assessment of these disabilities. In a December 2020 letter, the Board notified the Veteran of the additional evidence and advised that he could submit a waiver of AOJ consideration of that evidence in the first instance or could request that these claims be remanded for AOJ consideration of the additional evidence in the first instance. In a subsequent December 2020 response, the Veteran indicated that he wanted his case remanded for initial consideration of the additional evidence. Accordingly, based on the Veteran’s preference, the claims will be remanded to have the new evidence reviewed in the first instance and the claims for increased ratings readjudicated. 38 C.F.R. § 19.37(b). The matters are REMANDED for the following action: 1. Obtain updated VA treatment records dated since September 2020. 2. Then, readjudicate the claims for increased ratings for trigeminal neuralgia and left hemifacial spasm on appeal based on the current evidence of record. A supplemental statement of the case must then be provided to the Veteran and his representative. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dan Brook, 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.