Citation Nr: A24038136 Decision Date: 07/15/24 Archive Date: 07/15/24 DOCKET NO. 200211-69316 DATE: July 15, 2024 ORDER Entitlement to an effective date earlier than November 15, 2013, for the grant of service connection for chronic headaches is denied. REMANDED Entitlement to an initial compensable disability rating for chronic headaches is remanded. FINDING OF FACT The Veteran's only claim of entitlement to service connection for chronic headaches was received by VA on November 15, 2013. CONCLUSION OF LAW The criteria for an effective date of service-connection benefits for chronic headaches earlier than November 15, 2013, are not met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400. INTRODUCTION The Veteran served in the United States Air Force on active duty from August 1982 to May 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2019 rating decision issued by a Department of Veterans Affairs (VA) Regional Office, which is the Agency of Original Jurisdiction (AOJ). In the February 2020 Notice of Disagreement, the Veteran elected the Hearing docket. The Veteran was afforded a March 2024 Board hearing with the undersigned Veterans Law Judge and the transcript is of record. Therefore, the Board may only consider the evidence of record at the time of the December 2019 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. The evidentiary windows and review period however are distinct concepts under the Appeals Modernization Act that are not interchangeable. In this case, the review period currently before the Board is limited to the period considered by the AOJ for each issue (i.e., ends at the issuance of the AOJ decision[s] on appeal). If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends he is entitled to an earlier effective date for his service connection for chronic headaches. Except as otherwise provided, the effective date of an evaluation and award of disability compensation based on an original claim filed more than a year after separation, a claim reopened after final disallowance, or a claim for increase will be on the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2). Here, the Veteran filed an original claim for service connection for chronic headaches on November 15, 2013. See November 2013 Third Party Correspondence. During testimony, the Veteran could not remember at his hearing whether he filed a claim earlier than November 15, 2013, and none exists in the record. See March 2024 Board Hr'g Tr. at 9. As the date of receipt of claim can be no earlier than November 15, 2013, and the effective date must be assigned on the later of the date of receipt of claim and date entitlement arose, the Board finds that consideration of the date entitlement arose cannot result in an earlier effective date of service connection. 38 U.S.C. § 5110; 38 C.F.R. § 3.155, 3.400. The appeal must be denied as to this issue. REASONS FOR REMAND The Board must remand the issue of entitlement to an initial compensable disability rating for chronic headaches. The Veteran's service-connected headaches are currently assigned a 0 percent disability rating pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100. Under Diagnostic Code 8100, a 10 percent disability rating is warranted for headaches with characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent disability rating is contemplated for headaches with characteristic prostrating attacks occurring on an average of once a month over the last several months. A 50 percent disability rating is assigned for headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a. In applying the rating criteria, "the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria." See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). As Diagnostic Code 8100 does not contemplate the effects of medication in alleviating the frequency and duration of the Veteran's headaches, the Board is precluded from considering the relief afforded by the Veteran's medication, if any, in evaluating the severity of his disability. Id. The Veteran was afforded a VA examination in connection with the claim for service connection in October 2015. He reported having headaches usually three times a week present since 2008 and took ibuprofen. The examiner noted that the indicated symptoms were pain in the occiput with overuse of the cervical spine such as working overhead. Duration of the Veteran's typical head pain was less than 1 day. The examiner found no characteristic prostrating attacks of headache pain and no functional impact on the Veteran's ability to work. See October 2015 C&P Exam. The Veteran has submitted multiple headache logs from September 2019, October 2019, October 2023, and November 2023 which all indicate that the Veteran has had multiple headaches per month varying in severity from mild to severe. The most recent log indicates the daily use of pain relievers. Finally, the Veteran submitted a March 2024 Disability Benefits Questionnaire filled out by his chiropractor during the 90 day post hearing evidentiary window. The private medical examination indicates that the Veteran's current symptoms are constant head pain, pain on both sides of his head, nausea, sensory changes, and mood changes. The examiner also indicated the use of pain relievers. The Board cannot find an assessment of what functional impairment the Veteran's headaches would cause if not for the ameliorative effects of medication. As this is required under applicable precedent, the Board concludes that VA has not discharged the duty to assist. See 38 C.F.R. § 3.326(a). Remand is necessary to obtain an adequate medical examination. The matter is REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected headaches. The examiner should provide a full description of the disability and report all signs and symptoms of the Veteran's disability. The examiner should comment on the ameliorative effects of the Veteran's medication when describing the nature and severity of his headaches. In this regard, comment on the symptoms and related impairment that would be present without the relief provided by medications used to treat the Veteran's headaches. A fully articulated medical rationale for any opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran's medical history and the relevant medical science as applicable to this case, which may reasonably explain the medical guidance in the study of this case. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Pulaski, Michael F. 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.