Citation Nr: 21040400 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 20-02 858 DATE: July 3, 2021 ORDER Entitlement to an effective date of November 6, 1967, for the award of service connection for tension headaches is granted. FINDINGS OF FACT 1. The first correspondence from the Veteran that can be construed as a claim of service connection for headaches was received on November 6, 1967. 2. A February 1968 rating decision denied service connection for headaches (among other disabilities). 3. Evidence was submitted within one year of the February 1968 rating decision denying service connection for headaches. 4. In January 1973, the Veteran submitted a claim of service connection for concussion. 5. An August 1973 rating decision denied service connection for skull fracture and headaches. 6. Evidence was submitted within one year of the August 1973 rating decision denying service connection for headaches. 7. A September 1974 rating decision confirmed the denial of service connection for headaches, finding no new and material evidence had been submitted. 8. Evidence was submitted within one year of the September 1974 rating decision. 9. An October 1974 rating decision confirmed the denial of service connection for headaches, finding no new and material evidence had been submitted. The Veteran did not receive proper notice of this rating decision. Thus, the decision remained pending and was not final as to this issue. 10. A July 2016 Board decision reopened the claim of service connection for headaches, and a February 2018 rating decision granted service connection for headaches effective August 3, 2009. CONCLUSION OF LAW The criteria for entitlement to an effective date of November 6, 1967, for the award of service connection for tension headaches are met. 38 U.S.C. §§ 5104(a), 5107, 5110; 38 C.F.R. §§ 3.102, 3.103, 3.155, 3.156, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from September 1965 to August 1967. By way of background, this appeal was last before the Board in April 2020, when the Veteran's claim of entitlement to an effective date earlier than August 3, 2009, for the grant of service connection for tension headaches was denied. The Veteran subsequently appealed to the Court of Appeals for Veterans Claims (Court). In January 2021, the Court issued a Joint Motion for Remand (JMR), wherein the parties agreed that the Board must address whether the Veteran was provided notice of an October 1974 decision addressing new evidence received subsequent to the September 1974 rating decision and notification. The Board does so below. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to an effective date of November 6, 1967, for the award of service connection for tension headaches is granted. The Veteran asserts that the buddy statement lay evidence he submitted in September 1974 prevented the September 16, 1974, rating decision from becoming final. The Board agrees, but also finds that this statement prevented all earlier rating decisions from becoming final as well. At the time of the earlier rating decisions, 38 C.F.R. § 3.156(a) read as follows: New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(a) (1981). This provision was later redesignated as 38 C.F.R. § 3.156(b), and was addressed by the Federal Circuit in Beraud v. McDonald, 766 F.3d 1402 (2014). There, the Federal Circuit held that the VA must provide a determination that is directly responsive to the new submission and that, until it does so, the claim at issue remains open. Id. at 1407. The regulations concerning effective dates provided that when new and material evidence is received within the appeal period or prior to the appellate decision, the effective date will be as though the former decision had not been rendered. See 38 C.F.R. § 3.400(q) (1962). At that time, to justify a reopening on the basis of new and material evidence, there must have been a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome. See Chisholm v. Secretary of Health and Human Services, 717 F. Supp. 366, 367 (W.D. Penn. 1989). The evidence shows that the Veteran first filed his claim of service connection for headaches on November 6, 1967. That claim was denied in a February 1968 rating decision as the RO found that, while the Veteran had a head injury and subsequent headaches in service, he did not have headaches post-service. Evidence was submitted within one year of the February 1968 rating decision in connection with a separate nonservice-connected pension claim following a post-service motor vehicle accident (MVA). Specifically, the Veteran submitted a report that he had taken medication for a severe headache prior to the MVA. The Board finds this evidence to be new and material. The next adjudication of the Veteran's claim of service connection for headaches was not until August 1973 (following a January 1973 claim of service connection for concussions). However, evidence consisting of a statement from the Veteran's stepfather was submitted within one year of the August 1973 rating decision. In a September 1974 rating decision, the RO continued the denial of service connection for headaches on the basis that the evidence submitted was not new and material. The Board agrees. While new, the evidence was not material as it did not discuss the Veteran's headaches at all. Evidence consisting of a statement from H.W.L. was received shortly after the September 1974 rating decision. An October 1974 rating decision confirmed the denial of service connection for headaches, finding that no new and material evidence had been submitted. The record shows, however, that the Veteran did not receive proper notice of this rating decision, which remained pending and was not final as to this issue. On August 3, 2009, the Veteran requested to reopen his claim for service connection for headaches. A July 2016 Board decision reopened the claim of service connection for headaches, and a February 2018 rating decision granted service connection for headaches effective August 3, 2009. The Veteran timely appealed the effective date assigned. Based on the foregoing, the Board concludes that, because of the lack of notice following the October 1974 rating decision, that rating decision never became final. Because the October 1974 rating decision was issued to confirm the denial of prior rating decisions, those rating decisions, in effect, did not become final either. Because new and material evidence was received within the appeal period of the Veteran's initial claim (which did not become final), and VA did not provide a final determination that was directly responsive to the new submission, an effective date of November 6, 1967, for the award of service connection for tension headaches is warranted. T. MATTA Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Nelson 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.