Citation Nr: 22018086 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 19-28 906 DATE: March 28, 2022 ORDER Entitlement to an effective date prior to July 10, 2008 for the grant of service connection for lumbar facet syndrome with degenerative disc disease, to include on the basis of clear and unmistakable error is denied. Entitlement to an effective date prior to July 10, 2008 for the grant of service connection for adjustment disorder with mixed anxiety and depressed mood, to include on the basis of clear and unmistakable error is denied. Entitlement to an effective date prior to March 25, 2015 for the grant of service connection for allergic rhinitis, to include on basis of clear and unmistakable error is denied. Entitlement to an effective date prior to March 25, 2015 for the grant of service connection for seborrheic dermatitis, to include on the basis of clear and unmistakable error is denied. Entitlement to an effective date prior to March 25, 2015 for the assignment of a 50 percent rating for migraines, to include on the basis of clear and unmistakable error is denied. REMANDED Entitlement to a compensable rating for seborrheic dermatitis is remanded. Entitlement to a rating in excess of 10 percent for allergic rhinitis is remanded. FINDINGS OF FACT 1. In an unappealed January 2005 rating decision, the Regional Office (RO) denied the Veteran's claims of entitlement to service connection for mechanical low back pain and depression. 2. The January 2005 rating decision considered the correct facts and did not incorrectly apply any pertinent law or regulation; it does not contain clear and unmistakable error. 3. By a March 2012 rating decision, the RO granted service connection for lumbar facet syndrome with degenerative disc disease and adjustment disorder with mixed anxiety and depressed mood, effective January 3, 2011. 4. In November 2012, the RO assigned an effective date of July 10, 2008 for the grant of service connection for adjustment disorder with mixed anxiety and depressed mood. 5. In a January 2018 rating decision, the RO assigned an effective date of July 10, 2008 for the grant of service connection for lumbar facet syndrome with degenerative disc disease. 6. The Veteran's first request to reopen her claims for service connection for lumbar facet syndrome with degenerative disc disease and adjustment disorder with mixed anxiety and depressed mood was received by the RO on July 10, 2008. 7. The Veteran's initial claim of service connection for sinus allergies was denied in a January 2005 rating decision; she did not appeal that determination. 8. The Veteran's request to reopen her claim for service connection for allergic rhinitis (VA Form 21-526EZ) was received by the RO on March 25, 2015. 9. In an unappealed rating decision, dated in August 2006, the RO denied the Veteran's claim of entitlement to service connection for acne. 10. On March 25, 2015, the Veteran filed a new claim to reopen the issue of entitlement to service connection for seborrheic dermatitis. 11. By a January 2017 rating decision, the RO granted service connection for allergic rhinitis and seborrheic dermatitis, effective April 21, 2016; subsequently, in July 2018, the RO assigned an effective date of March 25, 2015 for a grant of service connection for allergic rhinitis and seborrheic dermatitis. 12. The evidence of record does not show that a formal or informal claim to reopen the claims of entitlement to service connection for sinus allergies and seborrheic dermatitis was received subsequent to the final January 2005 and August 2006 rating decisions and prior to the March 25, 2015 claims to reopen. 13. The January 2005 and August 2006 rating decisions were reasonably supported by evidence then of record, and the record does not demonstrate that the RO incorrectly applied the statutory or regulatory provisions extant at those times, or that the correct facts, as known at those times, were not considered. 14. The January 2005, August 2006, July 2010, and August 2011 rating decisions, addressing the claim of increased rating for migraines, considered the correct evidence and law as it then existed and did not involve an error that would have led to a different result if such error were corrected. 15. Prior to March 25, 2015, the Veteran's migraines were not manifested by very frequent completely prostrating and prolonged attacks, productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The January 25, 2005 rating decision that denied entitlement to service connection for mechanical low back pain and depression is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.105, 3.156, 20.300. 2. The criteria for an effective date earlier than July 10, 2008 for the grant of service connection for lumbar facet syndrome with degenerative disc disease, to include on the basis of clear and unmistakable error in a January 25, 2005 rating decision, have not been met. 38 U.S.C. §§ 1110, 1131, 5107, 5110; 38 C.F.R. §§ 3.105, 3.151, 3.155, 3.400. 3. The criteria for an effective date prior to July 10, 2008 for the grant of service connection for adjustment disorder with mixed anxiety and depressed mood, to include on the basis of clear and unmistakable error in a January 25, 2005 rating decision, have not been met. 38 U.S.C. §§ 1110, 1131, 5107, 5110; 38 C.F.R. §§ 3.105, 3.151, 3.155, 3.400. 4. The January 2005 rating decision that denied the claim of service connection for sinus allergies is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 5. The criteria for an effective date prior to March 25, 2015 for the grant of service connection for allergic rhinitis, to include on basis of clear and unmistakable error, have not been met. 38 U.S.C. §§ 5110, 7105; 38 C.F.R. §§ 3.104, 3.105, 3.114, 3.400. 6. The August 2006 rating decision that denied the claim of service connection for acne is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 7. The criteria for an effective date prior to March 25, 2015 for the grant of service connection for seborrheic dermatitis, to include on the basis of clear and unmistakable error, have not been met. 38 U.S.C. §§ 5110, 7105; 38 C.F.R. §§ 3.104, 3.105, 3.114, 3.400. 8. The criteria for an effective date prior to March 25, 2015 for the assignment of a 50 percent rating for migraines, to include on the basis of clear and unmistakable error, have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1984 to December 2004. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in January 2018 and June 2018 by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran perfected timely appeals to those decisions. In May 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. Effective Date Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. An exception to that rule provides that the effective date of an award of an increase shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the application is received within one year from such date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). In general, decisions of the RO and the Board that are not appealed in the prescribed timeframe are final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. Further, 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). Clear and unmistakable error is a very specific and rare kind of error. 38 C.F.R. § 20.1403(a). It is the kind of error of fact or law which, when called to the attention of later reviewers, compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. 38 C.F.R. § 20.1403(a); see Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc); see also Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999). To establish clear and unmistakable error, the appellant must show: (1) that either the facts known at the time were not before the adjudicator or the law then in effect was incorrectly applied, (2) that an error occurred based on the record and the law that existed at the time the decision was made, and (3) that, had the error not been made, the outcome would have been manifestly different. See Bouton v. Peake, 23 Vet. App. 70, 71 (2008); Grover v. West, 12 Vet. App. 109, 112 (1999); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell, 3 Vet. App. at 313-14. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable error. See 38 C.F.R. § 20.1403 (b), (c); see also Bustos v. West, 179 F.3d 1378 (Fed. Cir. 1999). Even when the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be ipso facto clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993) (citing Russell, 3 Vet. App. at 313). A determination of clear and unmistakable error must be based on the record and the law that existed at the time of the prior adjudication. Baldwin v. West, 13 Vet. App. 1 (1999); Caffrey v. Brown, 6 Vet. App. 377 (1994). A claim of clear and unmistakable error is a collateral attack on an otherwise final rating decision. Smith v. Brown, 35 F.3d 1516, 1527 (Fed. Cir. 1994). As such, there is a presumption of validity that attaches to a final decision, and when such a decision is collaterally attacked, the presumption becomes even stronger. Fugo, 6 Vet. App. at 44. Therefore, one who seeks to obtain retroactive benefits based on clear and unmistakable error has a much heavier burden than that placed on a claimant who seeks to establish prospective entitlement to VA benefits. Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). VA amended its adjudication regulations on March 24, 2015, 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. 57,660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the claims in this case were filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015, will be applied. Under the old 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 claims must identify the benefit sought. Additionally, a report of VA examination or hospitalization can be accepted as an informal claim for benefits. 38 C.F.R. § 3.157(b)(1) (in effect prior to March 25, 2015). The provisions of this regulation apply only when such reports relate to examination or treatment of a disability for which service connection has previously been established, or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment, or hospital admission. See Norris v. West, 12 Vet. App. 413, 417 (1999). 1. Entitlement to an effective date prior to July 10, 2008 for the grant of service connection for lumbar facet syndrome with degenerative disc disease, to include on the basis of clear and unmistakable error, is denied. The Veteran contends the effective date of her award for service connection for lumbar facet syndrome with degenerative disc disease should be the date she first filed a claim for service connection. At her Board hearing, the Veteran maintained that she was denied service connection in January 2005 although her records showed an extensive history of treatment for the back in service as well as after her discharge from service. The Veteran asserts that the January 2005 rating decision denying her claim of service connection for low back disorder was the result of clear and unmistakable error, and that service connection should have been established effective from the date of the filing of her initial claim. However, the argument misses the fact that the issue was eventually adjudicated and was denied and the decision became final. Under the provisions of 38 C.F.R. § 3.105(a), previous determinations that are final and binding will be accepted as correct in the absence of clear and unmistakable error. At the time of the January 2005 rating decision, the evidence of record included service treatment records dated from 1984 to 2004 and a VA examination report dated in October 2004. Significantly, the service treatment records indicate that the Veteran was diagnosed with chronic back pain. At her VA examination in October 2004, the Veteran indicated that she first noted low back pain in 2001; she denied any specific injury. Following an examination, she was diagnosed with mechanical low back pain. At the time of the January 2005 rating decision, the RO denied the claim based on a finding that, while there was a record of treatment for low back pain in service, there was no permanent residual or chronic disability subject to service connection shown by the service treatment records or demonstrated at the current examination; and pain was not considered a pathology entity for which service connection may be granted. The RO found that the evidence did not show that the Veteran's low back disability was related to service. In the March 2012 rating decision, the RO found that the Veteran's low back disability was related to service. The RO made it's finding based on a January 2012 positive VA etiology opinion. At the time of the VA examination, the Veteran reported that a tent collapsed and struck her on the back in 1985 while on active duty; she stated that she developed lumbar facet syndrome. Consequently, the examiner concluded that the Veteran's mild degenerative disease of the lumbar facets is more likely than not related to military service. In claims involving clear and unmistakable error, the law must be applied as it existed when the disputed rating decision was issued. The relevant regulations held that entitlement to service connection required, at a minimum, a showing of a current injury or disease resulting in disability, an in-service event, injury, or occurrence, and a medical nexus between the current disability and the in-service event, injury, or occurrence. See 38 C.F.R. § 3.303(a). The United States Court of Appeals for Veterans Claims (Court) held in Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. The Court explained that in the absence of proof of a present disability there can be no valid claim, and that an appellant is not entitled to some sort of benefit simply because he had a disease or injury while on active service. Id. In Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1992), the Court held that functional loss may be caused by pain "on use" or a "limitation of flexion," and cited 38 C.F.R. § 4.40 with emphasis that functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. In Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) abrogated by Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the Court held that pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. After careful review of the evidence of record, the Board finds that the criteria for a determination of clear and unmistakable error in the January 2005 rating decision with respect to the decision on entitlement to service connection for mechanical low back pain have not been met. 38 C.F.R. § 3.105(a); Fugo, 6 Vet. App. at 44. The Veteran has not identified any facts known but not before the RO at the time of the 2005 rating decision. Additionally, she has not alleged that the incorrect law was applied in the rating decision, but rather has expressed disagreement with how the law was applied, and how the evidence was weighed pursuant to applicable law. Specifically, the Veteran stated that her service and VA medical records provided support for her claim for service connection for mechanical low back pain. However, the Board finds no basis exists in the law with respect to this contention and thus, such cannot constitute clear and unmistakable error in the 2005 rating decision. As noted above, in 2005, the record contained evidence of in-service injury and complaints of low back pain; however, the October 2004 VA examination report failed to find evidence of objective pathology to support a diagnosed lumbar spine disability. Under the law applicable in January 2005, a diagnosis of chronic pain not objectively resulting in disability was an insufficient basis to grant entitlement to service connection, even with consideration of the Veteran's subjective reports of pain and functional impairment. Brammer, 3 Vet. App. at 225, Schafrath, 1 Vet. App. at 593 (functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion) (citing 38 C.F.R. § 4.40); Sanchez-Benitez, 13 Vet. App. at 285. As such, it is not undebatable that the RO's denial of service connection based on lack of current disability constituted clear and unmistakable error. As the arguments presented by the Veteran and her representative amount to a simple disagreement with how the facts were weighed and evaluated, the Board finds there was no clear and unmistakable error in the January 2005 rating decision that denied service connection for a low back condition. Fugo, 6 Vet. App. at 43-44. Thus, because the January 2005 rating decision was not the basis of clear and unmistakable error based on the theory presented, revision or reversal of that decision is not warranted. 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. The provisions of 38 C.F.R. § 3.400(b)(2) allow for assignment of an effective date the day following separation from active service if a claim is received within one year after separation from service. As detailed above, the RO considered whether service connection was warranted for mechanical low back pain in a January 2005 rating decision. The Veteran did not file a notice of disagreement with the rating decision within the one-year prescribed period. The Board also notes that no new and material evidence was received within the one-year period after the January 2005 issuance of the rating decision. Thus, the RO's rating decision is final. 38 U.S.C. § 7105. A claim of service connection for a back disability was received on July 10, 2008. In March 2012, the RO granted service connection for lumbar facet syndrome with degenerative disc disease, effective January 3, 2011; subsequently, in January 2018, the RO assigned an effective date of July 10, 2008, date of receipt of her claim. The Board finds that the effective date provisions do not allow an earlier effective date due to the finality of the January 2005 rating decision. Based on the above, the earliest date of receipt of the claim of service connection for a lumbar spine disorder is July 10, 2008, the date the RO received the Veteran's claim for compensation. An effective date earlier than July 10, 2008, is not warranted as VA is not free to award a retroactive effective date prior to the date it receives a claim unless there is a specific statutory or regulatory authority for such retroactive effective date. Based on the facts in this case, there is no legal basis for an effective date prior to July 10, 2008, for the award of service connection for a lumbar spine disorder. While the Veteran has submitted documents, which reflects an intent to claim service connection for a lumbar spine disorder, dated in December 2007 and February 2008, they were not received at the RO and associated with the claims file until July 10, 2008. In reaching this decision, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not for application in this case as the weight of the evidence is against the assignment of an earlier effective date. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. Entitlement to an effective date prior to July 10, 2008 for the grant of service connection for adjustment disorder with mixed anxiety and depressed mood, to include on the basis of clear and unmistakable error is denied. The Veteran is seeking an earlier effective date for the grant of entitlement to service connection for adjustment disorder with mixed anxiety and depressed mood, based on an allegation of clear and unmistakable error in a January 2005 rating decision which initially denied a claim of entitlement to service connection for depression. The Veteran alleges that there was clear and unmistakable error in the January 2005 rating decision that denied her claim for service connection for depression based on the Veteran missing a scheduled VA examination. Specifically, the Veteran asserts that she was never made aware of any scheduled examination with the VA, and that she is entitled to an earlier effective date for her service-connected adjustment disorder with mixed anxiety and depressed mood. Historically, in a January 2005 rating action, the RO denied the Veteran's claim for service connection for depression as the Veteran failed to attend a scheduled VA examination and did not provide good cause for missing her appointment. The Veteran was notified of the RO's denial in a January 2005 letter. The Veteran did not file a timely notice of disagreement of that determination and no new and material evidence was associated with the claims file within a year of issuance of that notification. 38 C.F.R. § 3.156(b); see Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). Thus, the January 2005 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. On July 10, 2008, the RO received the Veteran's petition to reopen her claim for service connection for depression, now characterized as adjustment disorder with mixed anxiety and depressed mood. In a March 2012 rating decision, the RO granted service connection for adjustment disorder with mixed anxiety and depressed mood and assigned a 30 percent rating, with an effective date of January 3, 2011. Subsequently, in November 2012, the RO assigned an effective date of July 10, 2008 for the grant of service connection for adjustment disorder with mixed anxiety and depressed mood. As noted above, the effective date of an award of disability compensation based on a claim to reopen after a final disallowance shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.400(q)(ii), (r). 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. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104(b), 3.105(a). With regard to the Veteran's allegation, the Board concludes that the RO did not commit clear and unmistakable error based on the facts in the evidence of record or the law at the time of the January 2005 rating decision. The Veteran must cooperate in VA's efforts to obtain evidence needed to adjudicate her claims, including keeping her contact information up-to-date, attending scheduled VA examinations, and promptly communicating with VA why he/she cannot attend a scheduled VA examination. See, e.g., 38 C.F.R. §§ 3.159(c), 3.655(b) (setting potential consequences when a veteran fails to appear for a scheduled examination). The Veteran's failure to appear at a scheduled VA examination without good cause may result in her claims being decided based on the available medical evidence or, if appropriate, denied. 38 C.F.R. § 3.655(b). The Board finds that the Veteran's allegation also relates to the VA's duty to assist the Veteran in the development of her claim. However, the VA's duty to assist is not always a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As stated, the Veteran failed to respond or file a notice of disagreement with the RO's January 2005 notification letter. Further, these assertions cannot constitute the basis for a clear and unmistakable error motion. 38 C.F.R. § 20.1403(d)(2); see also Cook v. Principi, 318 F.3d 1334, 1345-47 (Fed. Cir. 2002) (holding that a breach of the duty to assist cannot constitute clear and unmistakable error). Since the January 2005 rating decision was not the basis of clear and unmistakable error, revision or reversal of that decision is not warranted. The Board also finds that the effective date provisions do not allow an earlier effective date due to the finality of the January 2005 rating decision. The Board acknowledges that the record reflects the Veteran suffered from a psychiatric disability prior to receipt of the claim to reopen on in July 2008. However, the law provides that the effective date of an award based on a claim to reopen after final disallowance is the later of date of receipt of claim or date entitlement arose. The Board notes that although the award was based on the December 2009 VA examination establishing a nexus between the Veteran's adjustment disorder and service, the effective date assigned was the earlier date of claim. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. In light of the foregoing discussion, the Board concludes that in January 2005, the correct facts, as they were known at the time, were before the RO and the statutory or regulatory provisions extant at that time were correctly applied. Accordingly, the Board does not find clear and unmistakable error with respect to the January 2005 rating decision. Additionally, as July 10, 2008, the date of receipt of the claim to reopen, was the later than the date entitlement arose, the Board finds that July 10, 2008, the date the Veteran filed her claim to reopen, was the proper effective date for the award of service connection for depression. 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.400(q)(ii), (r). Therefore, because clear and unmistakable error was not shown in the January 2005 rating decision, and the weight of the evidence is against assignment of an earlier effective date on any other basis, the Board finds that the claim for an earlier effective date must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. 3. Entitlement to an effective date prior to March 25, 2015 for the grant of service connection for allergic rhinitis, to include on basis of clear and unmistakable error, is denied. 4. Entitlement to an effective date prior to March 25, 2015 for the grant of service connection for seborrheic dermatitis, to include on the basis of clear and unmistakable error, is denied. The Veteran is seeking an earlier effective date for the grant of entitlement to service connection for allergic rhinitis and seborrheic dermatitis, based on an allegation of clear and unmistakable error in prior rating decision. Specifically, it is argued that service connection is warranted for allergic rhinitis and seborrheic dermatitis, each effective February 1, 2005. By a rating action in January 2005, the RO denied the Veteran's claim for service connection for sinus allergies, based on a finding that seasonal and other acute allergic manifestations subsiding on the absence of/or removal of the allergen are generally regarded as acute disease, healing without residuals. The Veteran was notified of the RO's denial in a January 2005 letter. The Veteran did not file a timely notice of disagreement of that determination and no new and material evidence was associated with the claims file within a year of issuance of that notification. 38 C.F.R. § 3.156(b); see Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). Thus, the January 2005 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In August 2006, the RO denied service connection for acne on the basis that inservice skin complaints were acute and transitory, and no chronic skin conditions were found on recent VA examination. The Veteran did not file a timely notice of disagreement challenging that determination, nor did she submit new and material evidence within one year of its promulgation. Thus, the August 2006 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Subsequently, in August 2011, the RO denied service connection for solar urticaria on the basis that there was no medical link between her current disability and a verified inservice event. The Veteran did not file a timely notice of disagreement challenging that determination, nor did she submit new and material evidence within one year of its promulgation. Thus, the August 2011 rating decision also became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. As noted above, in the January 2005 rating decision, the RO found that seasonal and other acute allergic manifestations subsiding on the absence of/or removal of the allergen are generally regarded as acute disease, healing without residuals. In the August 2006 rating decision, the RO noted that although there was record of treatment in service for acne, no permanent residual or chronic disability subject to service connection was shown by the service records or demonstrated by the evidence following service as the current VA examination did not show a current diagnosis or residuals of this disability. Thus, service connection was denied for an allergic rhinitis and acne. The Veteran contends that the above rating decisions failed to acknowledge that she was diagnosed with both conditions while on active duty, and she continued to receive treatment for them since leaving service. However, while the service treatment records show that the Veteran was diagnosed with acne and seborrheic keratosis in service, a VA examination in October 2004 did not show any signs of skin disease. The examiner stated that there was no diagnosis of acne because there was no pathology to render a diagnosis. With respect to the claimed seasonal allergies, while the service treatment records show that she received treatment for and was diagnosed with allergic rhinitis, the October 2004 examiner noted that there was no active inflammation present on examination; he added that there was no functional impairment noted on today's examination. The Board finds that that revision of the January 2005 and August 2006 rating decisions on the basis of clear and unmistakable error is not warranted. Significantly, the January 2005 rating decision did note that the Veteran was treated for allergies in service, but it was determined that seasonal and other acute allergic manifestations subsiding on the absence of/or removal of the allergen are generally regarded as acute disease, healing without residuals. The RO also noted that the Veteran was diagnosed with acne; however, current examination failed to show a current skin condition. Thus, the RO's findings were not inaccurate based on the evidence of record at the time of the decision. In light of the foregoing, the Board notes that the Veteran's arguments appear to be tantamount to a disagreement with how the facts were weighed by the adjudicators in January 2005 and August 2006. As previously stated, disagreement with how a prior adjudication evaluated the facts does not establish clear and unmistakable error. Fugo, 6 Vet. App. at 43-44. As the correct facts were before the adjudicator and the applicable law was correctly applied, the Board finds no clear and unmistakable error in the January 2005 and August 2006 rating decisions. Thus, the Veteran's motion for revision of the decisions regarding the claims for service connection for allergic rhinitis and seborrheic dermatitis on the basis of clear and unmistakable error is denied. Thus, because the January 2005 and August 2006 rating decisions were not the basis of clear and unmistakable error, revision or reversal of those decisions is not warranted. The question now turns to whether the Veteran is entitled to an earlier effective date for her award of service connection for allergic rhinitis and seborrheic dermatitis. Based on the law discussed above, entitlement to an earlier effective date turns on date entitlement arose or date the claim was received, whichever is later. As noted above, 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. The provisions of 38 C.F.R. § 3.400(b)(2) allow for assignment of an effective date the day following separation from active service if a claim is received within one year after separation from service. As detailed above, the RO considered whether service connection was warranted for allergic rhinitis in a January 2005 rating decision. The Veteran did not file an NOD with the rating decision within the one-year prescribed period. The Board also notes that no new and material evidence was received within the one-year period after the January 2005 issuance of the rating decision. The RO also considered the issue of service connection for seborrheic dermatitis in rating decisions in August 2006 and August 2011; the Veteran did not appeal those decisions within one year of the notice thereof and no new and material evidence was received within one year of the issuance of each rating decision. Thus, the RO's rating decisions became final. 38 U.S.C. § 7105. On March 25, 2015, the Veteran requested to reopen her claim for service connection for allergic rhinitis and seborrheic dermatitis. The Board notes that the claim was initially denied in a January 2011 rating decision because the Veteran had not submitted any new or material evidence. In January 2017, the RO granted service connection for allergic rhinitis and seborrheic dermatitis, both effective April 21, 2016; subsequently, in July 2018, the RO assigned an effective date of March 25, 2015, date of receipt of her claim. As noted above, the effective date of a claim reopened after a final disallowance will be the date the claim was received, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. Here, while the Veteran reports that she was diagnosed with both conditions during service and has received treatment for both since as early as service, her most recent claim for service connection for the claim on appeal was received by VA on March 25, 2015. The Board acknowledges that the Veteran filed claims for entitlement to service connection for allergic rhinitis and seborrheic dermatitis currently on appeal prior to March 25, 2015. However, as discussed above, timely appeals were not filed, and the claims became final. Moreover, as detailed above, there is no evidence of clear and unmistakable error with regard to the January 2005 and August 2006 rating decisions. There is no provision in either the statute or the regulations that allows for an earlier effective date based on a reopened claim unless a clear and unmistakable error was committed in a prior decision, or unless the new and material evidence resulted from receipt of additional relevant military records. See 38 U.S.C. § 5110(i); 38 C.F.R. §§ 3.105, 3.156(c). Therefore, the March 25, 2015 date of receipt of the claims to re-open is the appropriate effective date. In reaching this decision, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not for application in this case because the weight of the evidence is against the assignment of an earlier effective date. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; See Gilbert v. Derwinski, supra. 5. Entitlement to an effective date prior to March 25, 2015 for the assignment of a 50 percent rating for migraines, to include on the basis of clear and unmistakable error, is denied. The Veteran contends she is entitled to a 50 percent rating for her migraine headaches prior to March 25, 2015, because she has experienced the same symptoms since service. The Veteran maintains that she was entitled to an earlier effective date for her 50 percent rating because the previous rating decisions committed clear and unmistakable error by denying a 50 percent rating increase. For increased rating claims, the effective date is the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o). However, if the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o)(2); VAOPGCPREC 12-98 (Sept. 23, 1998). If the increase occurred more than one year prior to the claim, the increase is effective the date of the claim. 38 C.F.R. § 3.400(o)(2); see Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010) (finding that a veteran's claim for increased disability compensation must have occurred during the one year prior to the date of the veteran's claim in order for the veteran to receive the benefit of an earlier effective date). If the increase occurred after the date of the claim, the effective date is the date of increase. 38 C.F.R. § 3.400(o)(2); Harper, 10 Vet. App. 126-27. As background, in a January 2005 rating decision the RO granted service connection for migraines and assigned a zero percent rating, effective January 1, 2005. In an August 2006 rating decision, the RO increased the rating for migraines from zero percent to 10 percent, effective March 2005. In July 2008, the Veteran applied for an increased rating. In a July 2010 rating decision, the RO granted an increased rating from 10 to 30 percent, effective July 10, 2008 date of claim. An August 2011 rating decision confirmed the 30 percent rating. The Veteran did not initiate an appeal of those rating decisions. On March 25, 2015, the Veteran filed a claim for an increased rating for migraines. By a rating decision in August 2015, the RO confirmed the 30 percent rating for migraines. In August 2016, the Veteran requested reconsideration of her claim for an increased rating for migraines. The RO subsequently issued a November 2016 rating decision which increased the rating to 50 percent, effective October 22, 2015. In July 2019, the RO assigned an effective date of March 25, 2015 for the assignment of the 50 percent rating for migraines. As noted above, the effective date of an award cannot be fixed earlier than the date of receipt of an application for entitlement. Therefore, in light of the facts as stated above, VA assessed the level of severity of the Veteran's service-connected migraines and granted the higher rating effective the date of receipt of claim. Thus, a claim for an earlier effective date based on evidence of entitlement earlier than the date of claim is denied. As to the contention that the prior rating decisions, which failed to assign a 50 percent rating, should be revised based on clear and unmistakable error, clear and unmistakable error arises where "[e]ither the correct facts, as they were known at the time, were not before the adjudicator or the statutory provisions extant at the time were incorrectly applied." Russell v. Principi, 3 Vet. App. 310, 313 (1992). The error must be "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made." Id.; see also Olson v. Brown, 5 Vet. App. 430, 433 (1993); Porter v. Brown, 5 Vet. App. 233, 235-36 (1993). "A determination that there was [CUE] must be based on the record and the law that existed at the time of the prior . . . decision." Russell, 3 Vet. App. at 314; see Crippen v. Brown, 9 Vet. App. 412, 418 (1996). Moreover, an alleged failure in the duty to assist by the RO may never form the basis of a valid claim of clear and unmistakable error because it essentially is based upon evidence that was not of record at the time of the earlier rating decision. See Elkins v. Brown, 8 Vet. App. 391, 396 (1995); Caffrey v. Brown, 6 Vet. App. 377, 384 (1994). Clear and unmistakable error is more than a difference of opinion. 38 C.F.R. § 3.105(b). A claimant seeking to obtain retroactive benefits by proving that VA has committed clear and unmistakable error in a decision has a much heavier burden than that placed upon a claimant who attempts to establish his or her prospective entitlement to benefits. Akins v. Derwinski, 1 Vet. App. 228, 231 (1991); see also Berger v. Brown, 10 Vet. App. 166, 169 (1997) (recognizing a claimant's "extra-heavy burden" of persuasion in a motion alleging clear and unmistakable error). For an allegation of clear and unmistakable error to be successful, it must be shown that the RO committed an error of law or fact that would compel later reviewers to the conclusion (to which reasonable minds could not differ) that the result would have been manifestly different but for the error. Elkins v. Brown, 8 Vet. App. 391, 396 (1995); see Eddy v. Brown, 9 Vet. App. 52, 57 (1996). The doctrine of resolving reasonable doubt in favor of the Veteran is not for application. Yates v. West, 213 F.3d 1372 (2000). Further, it is the Veteran's burden of showing that clear and unmistakable error is present. King v. Shinseki, 26 Vet. App. 433, 439 (2014). The Veteran contends her migraines were underrated in the rating decisions prior to July 2019. The Veteran filed her initial claim of service connection for headaches (VA Form 21-526) in August 2004. The Veteran was afforded a VA examination in October 2004, at which time she indicated that she had had headaches for the past three years worse over the past two years; she noted that she had one to two headaches per month, which were treated with Naprosyn. The Veteran indicated that the headaches were worse with stress. She had never been to the. emergency room as a result of the headaches. It was noted that a neurological examination was intact. The pertinent diagnosis was chronic headaches, probably tension. The rating schedule in October 2004 for migraines was the same as it is now. A zero percent rating was warranted for less frequent attacks; a 10 percent rating was warranted for characteristic prostrating attacks occurring on average one in 2 months over the last several months; a 30 percent rating was warranted for characteristic prostrating attacks occurring on average once a month over the last several months; and a 50 percent rating was warranted with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. By a rating action in January 2005, the RO granted service connection for migraines and assigned a noncompensable rating, effective January 1, 2005. In March 2005, the Veteran requested reconsideration of her claim. On examination in June 2005, the Veteran reported having reoccurring headaches which are migraines; she described constant head pain with blurred vision. It was noted that the headache attacks occur once every five days, each lasting up to three hours; the Veteran indicated that when the attacks occur, she is able to go to work but requires medication. The examiner noted that the functional impairment was inability to concentrate and focus; the condition resulted in 6 times lost from work per year. The diagnosis was migraines. Based on the above clinical findings, in August 2006, the RO increased the evaluation of the migraines from zero percent to 10 percent, effective March 8, 2005. The RO determined that, although the headaches are not prostrating, the Veteran's migraines are felt to be most reflective of a 10 percent rating based on the frequency of the attacks and interference with employment. The Veteran did not appeal that determination within one year of the notice thereof in August 2006. In the August 2006 rating decision, the RO found that the VA examination report and evidence of record showed her headaches were consistent with characteristic prostrating attacks averaging once in two months over the last several months. The Board finds that reasonable minds could differ on whether her headaches at that time, which reportedly were not accompanied by nausea or vomiting, constituted a prostrating migraine attack. Thus, the evidence did not undebatably show she suffered from characteristic prostrating attacks, let alone characteristic prostrating attacks occurring at least once a month, such that a rating in excess of 10 percent was warranted. Accordingly, the Board finds that the RO's finding was not clearly and unmistakably erroneous. On July 10, 2008, the Veteran filed a claim of increased rating for her migraines. In conjunction with her claim, the Veteran was afforded a VA examination for evaluation of her migraines in August 2008. At that time, she indicated that she had two migraine headaches last week with vomiting; she described the head pain as a 10 and indicated that she had to lie down. The Veteran also indicated that the headaches were so bad that she couldn't see. She stated that the headaches last a couple of hours and are incapacitating. She reported that she has to leave work because of migraines three days per month; when the headaches are this bad, she has to go home, take her medication and lie down in a dark and quiet room. She denied any associated motor or sensory deficits with the migraines. The examiner indicated that the Veteran has had increased frequency and intensity of her migraines since her last rating examination in 2005. On the occasion of a VA examination in August 2011, the Veteran reported increased headaches, with lightheadedness, dizziness, blurry vision, nausea, and temporal pressure. The Veteran indicated that she was unable to function as the pain was so severe. She reported having migraines six days out of a week, rated as 7 out of 10, with nausea, lightheadedness and blurred vision. She denied any vomiting or loss of consciousness. It was noted that when the Veteran has the migraines, she had to go home from work or call out; she reportedly missed 15 days of work in the last 12 months due to migraines. It was noted that the Veteran's neurological examination was unremarkable. In a July 2010 rating decision, the RO granted an increased rating from 10 to 30 percent, effective July 10, 2008 date of claim. An August 2011 rating decision confirmed the 30 percent rating. The Veteran did not initiate an appeal of those rating decisions. The decision to continue to rate the Veteran's migraines at 30 percent prior to was not clear and unmistakable error. The fact that she missed work does not clearly and unmistakably indicate that her migraines produced severe economic hardship. The decision to not rate the Veteran 50 percent is a matter on which reasonable minds could differ. This is merely a difference of opinion between the Veteran and the RO as to which rating most closely approximated her symptoms. A difference of opinion is not clear and unmistakable error. See 38 C.F.R. § 3.105(b). Therefore, the above rating decisions should not be revised on the basis of clear and unmistakable error. Thus, because the January 2005, August 2006, July 2010 and August 2011 rating decisions were not the basis of clear and unmistakable error, revision or reversal of those decisions is not warranted. The question now turns to whether the Veteran is entitled to an earlier effective date the assignment of a 50 percent for migraines. On March 25, 2015, the Veteran filed a claim for an increased rating for migraines. The Veteran was afforded a VA examination in August 2015, at which time she reported currently having headaches two to three times per week, lasting around two days; she takes Sumatriptan as needed. The Veteran indicated that the pain has worsened over the years, and it extends to her teeth and feels like her gums are throbbing. The Veteran described the headaches as pulsating or throbbing on both sides of the head and they worsen with physical activity. The Veteran indicated that the headaches are associated with nausea, vomiting, sensitivity to light, sensitivity to sound, changes in vision, and they last one to two days. It was noted that the Veteran has characteristic prostrating attacks of migraine headache pain, and they occur more frequently than once per month. The examiner also noted that the Veteran had very frequent prostrating and prolonged attacks of migraine headache pain. It was noted that the Veteran misses days at work and takes longer to accomplish tasks when her migraines occur. Submitted in support of her claim was the report of a VA examination completed by the Veteran's private physician in October 2015. It was noted that the Veteran had very frequent completely prostrating and prolonged attacks of migraine headaches between 2 to 6 times per week which are productive of severe economic inadaptability. It was noted that her treatment plan included Sumatriptan and Topamax. The Veteran described the headaches as constant, pulsating or throbbing on both sides of the head, and they worsen with physical activity; she stated that the pain is so severe that it radiates into her gums and ears. The Veteran indicated that the headaches are associated with nausea, vomiting, sensitivity to light, sensitivity to sound, changes in vision, sensory changes, and they last one to two days. She noted that the pain is also felt in the crown of the head. It was noted that the Veteran has characteristic prostrating attacks of migraine headache pain, and they occur more frequently than once per month. The examiner also noted that the Veteran had very frequent prostrating and prolonged attacks of migraine headache pain. The examiner indicated that, due to the Veteran's prolonged migraines and intensity, she is absent from work several days within the work month on average (2-6 days). Considering the evidence of record under the laws and regulations as set forth above, the Board finds that March 25, 2015 is the correct date for the grant for a 50 percent rating for migraine headaches. As noted above, the Veteran's current increased rating claim was received on March 25, 2015. This is the current effective date. Therefore, in order to warrant an earlier effective date for this increase in rating, the record must show that the increase in disability was factually ascertainable within one year of this date (between March 25, 2014 and March 25, 2015). The record does not contain evidence during this period showing an increase in the Veteran's migraines. Indeed, the treatment records from this period do not show complaints of or treatment for this disability. Thus, an increase in severity of the Veteran's migraines is not factually ascertainable at any point within one year prior to March 25, 2015, and her claim must be denied. The appeal is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; See Gilbert v. Derwinski, supra. REASONS FOR REMAND 1. Entitlement to a compensable rating for seborrheic dermatitis is remanded. The Veteran contends that a higher rating is warranted for her seborrheic dermatitis. During the May 2021 Board hearing, the Veteran testified that her skin condition has gotten worse since her last VA examination in January 2017. Specifically, the Veteran reported that the condition affects her entire scalp, resulting in big chunky flakes throughout the entire scalp. The Veteran testified that the skin condition causes sores and constant itching, resulting in scabby buildup. The Veteran also reported that the sores have occasionally become infected and turned into pus bumps and had to be drained off of her scalp. In light of this suggestion of a possible worsening, as well as approximately five years passing since the most recent VA examination, the Board finds it necessary to remand the claim for a contemporaneous examination to assess the current nature, extent and severity of the Veteran's seborrheic dermatitis. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). 2. Entitlement to a rating in excess of 10 percent for allergic rhinitis is remanded. The Veteran seeks a higher rating for her service-connected allergic rhinitis. She was most recently afforded a VA examination for her sinus condition in January 2017. However, at her personal hearing in May 2021, the Veteran testified that her condition has gotten worse since her last examination. Specifically, the Veteran reported nasal blockage that normally occurs in both nasals; she stated that it is so severe that she's unable to breathe out of her nose. The Veteran indicated that she has constant condensation that drains down into her throat, which causes her to have to clear her throat constantly throughout the day, causing her to lose her voice and make it difficult for her to speak. She also testified that having to clear her throat throughout the day interferes with her ability to communicate with her customers and, as a result, impact her functional impairment when she's working. Given the evidence of increased symptomatology, and the length of time since the last VA examination, the Board finds that a remand is necessary in order to afford the Veteran a VA examination to determine the current nature and severity of her allergic rhinitis. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). The matters are REMANDED for the following actions: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and her representative and afford her an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A (b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, ensure that the Veteran is scheduled for a VA examination in order to determine the current nature and severity of her service-connected seborrheic dermatitis. The entire claims file, including a copy of the Remand, should be made available to, and be reviewed by, the VA examiner(s). All appropriate tests and studies should be performed, and all clinical findings should be reported in detail. The examiner should consider all lay and medical evidence of record. The examiner should specifically identify the percentage of exposed areas of the Veteran's body affected by the service-connected skin disorder, as well as the percentage of the entire body affected by the disorder. The examiner should state the frequency of treatment with systemic therapy such as corticosteroids or other immunosuppressive drugs. Also, measure and record any disfigurement of the head, face, or neck; and the nature of any scars related to the skin disability (if any). If possible, such examination should be conducted during a flare-up. If this is not possible (it is very difficult to somehow time an examination to an active phase), the Veteran may help the examiner by taking pictures of the skin problem during an active phase. A rationale for any opinion offered should be provided. 3. Following the receipt of outstanding records, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her allergic rhinitis. The entire claims file, including a copy of the Remand, should be made available to, and be reviewed by, the VA examiner. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. A rationale for any opinion offered should be provided. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Suzie S. Gaston, 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.