Citation Nr: 21030787 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 18-32 832 DATE: May 19, 2021 ORDER An effective date prior to June 6, 2017, for the grant of service connection for migraine headaches associated with posttraumatic stress disorder (PTSD) with unspecified depressive disorder and other substance use disorder and decreased memory due to stroke and PTSD (migraine headache disability to include secondary to a service-connected acquired psychiatric disability) is denied. FINDING OF FACT The Veteran did not file a formal or informal claim for service connection for a migraine headache disability, to include secondary to a service-connected acquired psychiatric disability, prior to June 6, 2017. CONCLUSION OF LAW The criteria for assignment of an effective date prior to June 6, 2017, for the grant of service connection for a migraine headache disability, to include secondary to a service-connected acquired psychiatric disability have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1980 to October 1981. The Board notes that during the pendency of this claim, the Veteran has appointed a new representative in this case. The new representative is identified on the cover page of this decision. See VA Form 21-22 dated November 1, 2019. In March 2021, the Veteran's authorized representative notified VA of the Veteran's desire to withdraw his scheduled Board hearing. The Board finds the Veteran's hearing request withdrawn. See VA form 21-4138 Statement in Support of Claim dated March 15, 2021. Here, a Statement of the Case (SOC) was issued in June 2018, and additional evidence obtained by VA in the form of VA treatment records and VA examinations was subsequently associated with the record. Although a supplemental SOC has not been issued following receipt of these records, and hence they were not initially reviewed by the RO, the records are not pertinent to the Veteran's claim for an earlier effective date for his service-connected migraine headache disability, to include secondary to a service-connected acquired psychiatric disability. Further, the Board notes that in March 2021, the Veteran's authorized representative notified VA of the Veteran's desire to move the appeal forward for review by a Veteran's Law Judge. Thus, a waiver of initial RO consideration is not required. 38 C.F.R. §§ 19.37, 20.1304. Earlier effective date prior to June 6, 2017 is denied. This matter comes before the Board on appeal from an August 2017 rating decision, wherein the Regional Office (RO) granted service connection for migraine headaches as secondary to the service-connected disability of posttraumatic stress disorder (PTSD) with unspecified depressive disorder and other substance use disorder and decreased memory due to stroke and PTSD. (Hereinafter, migraine headache disability, to include secondary to a service-connected acquired psychiatric disability). The Veteran was initially evaluated at 30 percent from June 6, 2017, the date the RO determined was the Veteran's intent to file her claim. The Veteran submitted a Notice of Disagreement (NOD) requesting and earlier effective date (EED) for the service connection grant. Subsequently, a Statement of the Case (SOC) determination denied the Veteran's claim for an EED. The Veteran perfected a timely appeal to the Board requesting an EED prior to June 6, 2017. In part, it appears that the Veteran argues that the correct effective date is an August 2015 rating decision date, which is the date service-connection was granted for her acquired psychiatric disability, with a 70 percent disability rating awarded effective December 2014 and a 100 percent disability rating effective June 6, 2017. See January 2018, NOD, VA Form 9 dated in June 2018; and August 2015, August 2017 rating decisions. VA regulations provide that a claim, and application mean a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Generally, the date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). A sympathetic reading as to all potential claims raised by the evidence is required. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). The Board, however, is not required to conjure up issues that were not raised by an appellant. See Brannon v. West, 12 Vet. App. 32 (1998). VA law provides that the effective date for an award of disability compensation for an original claim shall be the date of receipt of the claim, or the date entitlement arose, whichever is later, unless the claim is received within one year of separation from service. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2). In this case, the Board agrees that VA received an intent to file on June 6, 2017 and on June 30, 2017, VA received an application for compensation benefits for service connection for migraine headache disability, memory loss and an increased rating claim for PTSD with unspecified disorder and other substance use order. See VA Form 21-526EZ dated June 30, 2017 and the July 2017 VA notification to the Veteran of a June 6, 2017 intent to file. Of record is a July 2017 Report of General Information, in which the Veteran clarified that she is seeking service connection for her migraine headache disability, secondary to her service-connected acquired psychiatric disorders, to include PTSD. As noted above, the rating decision dated in August 2017, granted service connection for the Veteran's migraine headache disability effective June 6, 2017, the day the RO determined VA received an intent to file. The Board recognizes that the Veteran contends that she is entitled to an EED because she experienced secondary migraine headache pain associated with her service-connected acquired psychiatric disability prior to June 6, 2017. A review of the record reflects that the Veteran initially submitted a supplemental claim for service connection for an acquired psychiatric disability (PTSD/military sexual assault) in December 2014 and service-connection was granted by the RO in an August 2015 rating decision, and effective December 2014. In this regard, between December 2014 and August 2015, the Veteran submitted multiple statements in association with this service connection claim, which discussed many symptoms that did not include headache complaints. It was not until June 30, 2017, that the Veteran submitted a claim for service-connection for her migraine headache disability and increased rating claim for her service-connected acquired psychiatric disability, in which she discussed symptoms that included headaches. As such, the evidence does not support nor imply that the Veteran asserted that she had migraine headache disability secondary to her acquired psychiatric disability prior to June 6, 2017. In summary, the Veteran must have asserted a claim expressly or impliedly. Isenbart v. Brown, 7 Vet. App. 537, 540-41 (1995). In this case, none of the correspondence received prior to June 6, 2017 is sufficient to show that the Veteran had an intent to file a claim for service connection for a migraine headache disability, to include secondary to an acquired psychiatric disorder. Moreover, the regulations permitting informal claims were eliminated as of March 24, 2015, and formal claims were required from that point forward. The Board notes that the Veteran's June 6, 2017 correspondence to VA actually expressly requested service-connection for a low back condition and did not expressly request service connection for her migraine headache disability. As such, it appears that the RO, in the rating decision dated in August 2017 gave the Veteran a sympathetic reading in granting her service-connection claim effective June 6, 2017 instead of June 30, 2017, the date of her formal application. Here, the Board will not disturb the current June 6, 2017 effective date, however, the Veteran nor her representative have identified any migraine headache disability claims submitted, expressed or implied prior to June 6, 2017. In sum, there is no document of record that can be construed as an informal or formal claim for service connection for migraine headache disability prior to the receipt of the June 6, 2017 assigned effective date. VA is not required to anticipate, or assume an intent to file, any potential claim for a particular benefit where no intention to raise it was expressed. Brannon v. West, 12 Vet. App. 32, 35 (1998). While sympathetic to the Veteran's belief that an earlier effective date is warranted, for the reasons outlined above, the Board is precluded by law from assigning an effective date prior to June 6, 2017, for the grant of service connection for a migraine headache disability. Importantly, the pertinent regulations specifically state that the effective date should be the date of a claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. In the instant case, based on these regulations, the effective date has been appropriately assigned and there is simply no indication on the part of the Veteran of any intent to file a claim for service connection prior to the June 6, 2017. Accordingly, the request for an earlier effective date is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M Franklin, 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.