Citation Nr: 0007166 Decision Date: 03/16/00 Archive Date: 03/23/00 DOCKET NO. 94-20 037 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an effective date for service connection for migraine headaches prior to December 20, 1988. 2. Entitlement to an increased evaluation for peripheral vestibulopathy, including tinnitus, nystagmus, dizziness, and vomiting, as residuals of a head injury, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The veteran had active service from May 1968 to July 1969. The appeal comes before the Board of Veterans' Appeals (Board) from Department of Veterans Affairs (VA) rating decisions by the St. Petersburg, Florida, Regional Office (RO) in June and August 1992. A July 1996 rating action made the following decisions: service connection was granted for status post laminectomy for herniated disc at L5-S1 with chronic pain and numbness of the left lower extremity and left foot drop and assigned a 40 percent evaluation for that disability, effective in July 1995. A total disability rating based on individual unemployability and eligibility to Dependent's Educational Assistance were granted effective in February 1996. An increased evaluation for generalized anxiety disorder with depression and post-traumatic stress disorder was denied. A 100 percent evaluation under the provisions of 38 C.F.R. § 4.30 was granted effective from February through March 1996. Special monthly compensation based on the loss of use of the left foot was granted effective in February 1996. Special monthly compensation for S-2 was granted effective from February though March 1996. Specially adapted housing and automobile adaptive equipment was granted. The July 1996 rating action denied special monthly compensation based on the need for aid and attendance of another person. The RO subsequently sent notice to the veteran of the July 1996 rating decision and of the right to appeal said decision, but no notice of disagreement (NOD) had been received at the time that the Board remanded the case in July 1997. In the July 1997 Board remand it was noted that an August 1992 rating decision held that new and material evidence had not been received to reopen the claim for entitlement to service connection for migraine headaches since a rating decision in May 1989 denied such claim. While a statement of the case (SOC) dated in May 1989 addressed an increased rating claim, it was noted that the veteran would receive a separate letter regarding service connection for migraine headaches but that the claims files do not include a copy of any letter notifying the veteran of the May 1989 rating decision and of the right to appeal said decision. Therefore, the Board found in the July 1997 remand that the May 1989 rating decision, in which the RO denied service connection for migraine headaches, was not final. 38 U.S.C.A. § 7105 (West 1991). Following the July 1997 remand, an April 1998 rating action granted a 100 percent schedular rating for generalized anxiety disorder with depression and post-traumatic stress disorder (PTSD). Historically, a 50 percent rating had been assigned until a 70 percent schedular rating was effective on May 1, 1992 and the 100 percent schedular rating was made effective as of September 17, 1997. The April 1998 rating action also granted service connection for headaches (previously rated as part and parcel of the service-connected peripheral vestibulopathy) and assigned a 50 percent disability rating, with both being made effective December 20, 1988. It was noted in the April 1998 rating action that it was claimed that an earlier effective date for service connection for headaches was warranted but it was held that no claim for headaches had been filed prior to December 20, 1988. The April 1998 rating action also granted an increase in the 10 percent rating for peripheral vestibulopathy, including tinnitus, nystagmus, dizziness, and vomiting, as residuals of a head injury, to 30 percent effective November 25, 1991, (the maximum schedular evaluation assignable) under 38 C.F.R. § 4.87, Diagnostic Code 6204 (1999). Since the appellant did not withdraw the increased rating claim after the grant of a higher evaluation, the case is still in appellate status. AB v. Brown, 6 Vet. App. 35 (1993). This matter will be addressed in the remand portion of this decision. Also, the April 1998 rating action granted entitlement to special monthly compensation based on generalized anxiety disorder with depression and PTSD evaluated as 100 percent disabling with other service-connected disabilities combining to 60 percent or more, effective September 17, 1997. However, special monthly compensation based on need for the regular aid and attendance of another was denied. Following the April 1998 rating action, an NOD was received in June 1998 and an October 1998 SOC was issued as to entitlement to an effective date for service connection for migraine headaches prior to December 20, 1988 and a substantive appeal (VA Form 9) was received later in October 1998 perfecting the appeal as to that issue. Additionally, correspondence from the veteran indicates that he may wish to make as yet unclear claim for increased compensation base upon the a proper accounting of his dependents. Also, it is unclear from the additional correspondence whether the veteran is seeking an earlier effective date for a 100 percent schedular rating for service-connected on generalized anxiety disorder with depression and PTSD. These matters are referred to the RO for clarification. The issue of entitlement to an increased evaluation for peripheral vastibulopathy, including tinnitus, nystagmus, dizziness, and vomiting, as residuals of a head injury, currently evaluated as 30 percent disabling, will be addressed in the REMAND section of this decision. FINDINGS OF FACT VA examination on December 20, 1988 first diagnosed migraine headaches as a separate disease entity and constitutes both an informal claim and the date entitlement to service connection for headaches arose. CONCLUSION OF LAW An effective date for service connection for migraine headaches prior to December 20, 1988 is not warranted. 38 U.S.C.A. § 5110(a) (West 1991); 38 C.F.R. § 3.400(a) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background The veteran's service medical records reflect that he sustained a mortar wound of the left hand in combat in Vietnam in January 1969. A February 1969 hospital report reflects that X-rays of his skull were normal but on examination he had a mild bilateral hearing loss. He was subsequently discharged from service because of the residuals of the left hand injury. The veteran's original claim for VA compensation was received in August 1969. He requested compensation for residuals of the fragment wound of the left hand. No reference was made to a head injury or headaches. A September 1969 rating action granted service connection for residuals of the left hand injury and for defective hearing. On VA general medical, surgical, and orthopedic examination in 1970 the veteran made no reference to having sustained an inservice head injury nor to having any residuals thereof, including headaches. In a January 1971 statement, Millard F. Jones, M.D., reported that he had examined the veteran in November 1970 at which time the veteran reported having had trouble hearing in the left ear and having had left-sided headaches since a grenade explosion. Examination of the veteran's ears, nose, and throat was essentially normal but after audiometric testing it was felt that he had a sensorineural hearing loss in the left ear which was "probably traumatic in origin." On VA orthopedic and audiometric examination in April 1971 it was felt that the veteran's complaint of impaired sensation in the left hand to all types of stimuli was greater than the impairment of sensation expected from such a wound and that part of the complaints were entirely subjective rather than objective. A June 1971 rating action denied an increased rating for the service-connected left hand disorder and denied a compensable rating for the service-connected hearing loss. He appealed that rating action and in the NOD and substantive appeal no reference was made to headaches. The Board denied the appeal in February 1972. VA outpatient treatment records of 1976 are negative for complaints of headaches. On VA examination in August 1976 the veteran's complaints included loss of balance due to his left ear injury as well as headache on the left side, including the eye and throat. He further indicated that his headaches were on the left side and were due to pain from his left ear in which he had ringing, hearing loss, and sometimes drainage. The veteran appealed a September 1976 rating action which denied a compensable rating for hearing loss and denied service connection for tinnitus. Additional VAOPT records of 1975, 1976, and 1977 are negative for complaints of headaches. In the veteran's NOD and substantive appeal in April 1977, he made reference to left ear pain and loss of balance and only in the substantive appeal did he state that his "head and left ear hurt so bad at times I can't sleep." In VA Form 1- 646 of April 1977, Dr. Jones January 1971 letter was quoted, including the reference to left-sided headaches, but no claim for a headache disorder was set forth. An August 1977 Board decision denied a compensable rating for bilateral hearing loss but granted service connection for tinnitus. In that decision it was noted that the veteran contented that he had had left-sided hearing loss and headaches since an inservice grenade explosion. That grant was effectuated by an August 1977 rating action which assigned a 10 percent rating for the service-connected tinnitus and a September 1978 rating action assigned an effective date for both of March 10, 1976. The assignment of that level of disability rating and that effective date was upheld in a Board decision in April 1979. VAOPT records of 1977, 1978, and 1979 reflect complaints of tinnitus and a left ear infection with pain. On VA examination in July 1979 the veteran complained of tinnitus and episodic itching of the left ear since the inservice fragment wounds, which did not directly injure the left ear or the left side of the veteran's head. There was no complaint of headaches. In August 1979, the veteran claimed service connection for dizziness or loss of equilibrium (vestibulopathy), and a psychiatric disorder as secondary to his service-connected hearing loss and tinnitus. On VA examination in October 1979, the veteran's complaints included left-sided headaches as well as tinnitus and infections of the left ear. On VA psychiatric examination in November 1979, he reported that since his inservice injury he had had difficulty hearing, frequent headaches, dizziness, frequent ear infections, and nervousness. He related being tense and irritable as well as sometimes having difficulty relating to family members, "all secondary to his frequent headaches and dizziness, because of his hearing problems." In a January 1980 rating decision, the RO denied service connection for a psychiatric disorder with dizziness and loss of equilibrium, claimed as due to service-connected hearing loss and tinnitus. The veteran appealed that denial and testified at the RO in May 1980 that he had been receiving VA treatment for vertigo for about 10 years but had not received private treatment (page 2 of the transcript of that hearing). No reference was made at that hearing (or in a June 1980 letter from the veteran making corrections or additions to the transcript) or in the VA Form 1-9 of May 1980 to headaches. On VA neurology and otolaryngology examinations of July and August 1980 the veteran did not complained of headaches. The neurological diagnosis was chronic peripheral vestibulopathy, secondary to chronic labyrinthitis, with no evidence of central neurological dysfunction. On VA compensation and pension examination in April 1981 the veteran complained of constant left-side headaches. He claimed that his dizziness caused some gastrointestinal distress and also some headaches. Subsequent to the above-described examinations, the RO requested and received additional VAOPT records from 1970 to 1982. A Medical Certificate and History dated in February 1979 noted that the veteran was taking Tylenol for "headache." A Medical Certificate dated in May 1981 included a single notation of left-sided headaches. In conjunction with VA examinations in June and July 1982 the veteran complained of, in part, headaches. The VA neurology examination in June 1982 yielded a diagnosis of a chronic peripheral vestibulopathy involving the labyrinth with resultant nystagmus and episodes of severe vertigo. A Board decision in June 1983 granted service connection for a labyrinthine disorder as incurred during service from inservice head trauma. That grant was effectuated by a July 1983 rating action which assigned a 30 percent disability evaluation. That evaluation and the grant of service connection were made effective August 27, 1979. That rating action also granted service connection and a 30 percent rating for an anxiety reaction, both effective August 27, 1979. The veteran disagreed with the ratings assigned. On VA audiometric testing in August 1984 the veteran complained of headaches. VAOPT records of 1985, 1986, and 1987 reflect multiple complaints of headaches. In March 1985, he reported having had to take sick leave due to headaches and other symptoms secondary to his Vietnam combat-related service connected disorders. In April 1985 a computerized tomogram of his brain was negative. In April 1986, the assessment was that his headaches were to be ruled out as being a psychosomatic disorder. In July 1987, it was noted that there had been no reduction in the frequency or intensity of his headaches with the use of biofeedback training. A January 1986 Board decision denied ratings in excess of 30 percent for the service-connected vestibulopathy and anxiety disorder. Thereafter, multiple statements submitted by the veteran and multiple VA clinical records reflect his complaints of headaches. In a December 1986 statement the veteran reported that, in part, his "nervous condition also consist [sic] of severe headaches" which the RO had failed to consider in rating the service-connected psychiatric disorder. Similarly, in an April 1987 statement he reported that "[m]y severe headaches due to my condition was over-looked and left out, medications for headaches were left out, and doctor reports about my severe headaches were also left out." He received treatment for headaches which worsened with each attack of vertigo. On VA examinations in May 1987, the veteran complained of headaches and a VA neurologist indicated that the diagnosis was chronic peripheral vestibulopathy secondary to an inservice explosion but that most of the veteran's disability appeared to be functional in nature, as opposed to being related to his underlying mild neurological problem. A June 1987 rating action, while not specifically citing headaches as a symptom, determined that based on the VA examination findings many of the veteran's symptoms were related to his anxiety condition, versus his vestibulopathy. At a July 1987 RO hearing the veteran testified that he had daily migraine headaches (page 3 of the transcript of that hearing). He stated that he had the most severe headaches at night and that he experienced numbness of the tongue and fingers, as well as blurry left vision when he had headaches. In a statement received on August 25, 1987 the veteran stated that he took Fiorinal and other medications for his headaches and that the headaches were due to an inservice explosion. A June 1988 Board decision denied a total rating and denied ratings in excess of 30 percent for an anxiety reaction, 10 percent for peripheral vestibulopathy with tinnitus and nystagmus, and denied a compensable rating for bilateral hearing loss. In a statement received in July 25, 1988, the veteran reported having chronic headaches and in conjunction with VA examinations in August 1988 he complained of severe headaches. During VA hospitalization in October 1988 for treatment of psychiatric disability the veteran was evaluated for intractable headaches. On VA examination on December 20, 1988 the veteran reported that subsequent to an inservice explosion in 1969 he had had left-sided facial headaches associated with nausea, vomiting, and tingling sensations intermittently. This was preceded by an aura, occasionally consisting of flashing lights. He took Cafergot and Meclizine. After an examination the diagnosis was migraine headache syndrome and it was doubted that there was a vestibular component but this (the vestibular component) should be ruled out with a baseline electronystagmograph. It was also noted that the veteran had some psychological or functional overlay as demonstrated by his normal audiometric testing results versus abnormal tuning fork examination. Law and Regulations Generally, an award of service connection "[u]nless specifically, provided otherwise in this chapter, the effective date of an award based on an original claim, a claim to reopen after a final adjudication, or a claim for increase, of compensation ... shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor." 38 U.S.C.A. § 5110(a) (West 1991); 38 C.F.R. § 3.400(a) (1998). 38 U.S.C.A. § 5110(b)(1) provides for an exception to 38 U.S.C.A. § 5110(a) and provides as follows: "The effective date of an award of disability compensation to a veteran shall be the day following the date of discharge or release if application therefor is received within one year from such discharge or release." Analysis In general, the effective date of an award of benefits will depend on the date a claim for such benefits was filed. The failure to consider evidence which may be construed as an earlier application or claim, formal or informal, that would have entitled the claimant to an earlier effective date is error. Servello v. Derwinski, 3 Vet. App. 196, 198-99 (1992). See 38 U.S.C.A. § 7104(a) (West 1991) and Lalonde v. West, 12 Vet. App. 377, 380 (1999). "[T]he effective date of an award of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection [in a claim for secondary service connection], but on the date that the application upon which service connection was eventually awarded was filed with VA. Lalonde v. West, 12 Vet. App. 377, 380 (1999) (citing Hazan v. Gober, 10 Vet. App. 511 (1997); Washington v. Gober, 10 Vet. App. 391 (1997); and Wright v. Gober, 10 Vet. App. 343 (1997). Here, despite the contention that the veteran had pursued a claim for service connection for headaches since discharge from active service, no claim for service connection for headaches was received within the first year after discharge from military service. Rather, the veteran's original claim for VA compensation in August 1969 made no reference to headaches. Emphasis has been placed on the January 1971 statement of Dr. Jones that noted, in part, the veteran had had headaches since an inservice grenade explosion. While that statement goes on to state that the veteran's sensorineural hearing loss was "probably traumatic in origin" the Board notes that the veteran did not sustain any direct head trauma from the grenade explosion. In fact the 1971 private physician's statement does not state that the veteran's headaches were of traumatic origin or even yielded a diagnosis of headaches, as opposed to merely repeating a clinical history which had obviously been first related by the veteran. The earliest diagnosis of headaches as a separate disease entity, i.e., migraine headaches, is the December 20, 1998 VA examination. That examination had been construed to be an informal claim and, as noted, is the earliest competent clinical evidence of the existence of headaches as a separate disease entity. Thus, that examination is both the date of claim and the date entitlement arose. The mere receipt and presence in the claim files of medical records reflecting complaints of headaches is insufficient to constitute a claim for service connection. The Board also notes that at no time during any of the prior appeals to the Board did the veteran or any representative specifically raise the issue of entitlement to service connection for headaches as a separately ratable disease entity, even though the evaluations assigned for his service- connected vestibulopathy and psychiatric disorders were considered by the Board. Rather, the statements of the veteran suggest that incomplete or no consideration was given to his headaches in arriving at the appropriate disability evaluations for one or more of those disorders. This indicates that even the veteran considered the headaches to be a symptom and not a separate disease entity. Lastly, citation has been made to 38 U.S.C.A. § 1154(b) (West 1991) in consideration of the appropriate effective date. However, that provision as well as the enabling regulation, 38 C.F.R. § 3.304(d) (1999), are applicable to determinations of whether service connection should be granted in the first instance and are not controlling with respect to the assignment of effective dates. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case that claim is denied. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.102; Gilbert v. Derwinski 1 Vet. App. 49 (1990). In this case, for the foregoing reasons and bases, the preponderance of the evidence is against the claim and, thus, there is no doubt to be resolved in favor of the veteran. ORDER An effective date for service connection for migraine headaches prior to December 20, 1988 is denied. REMAND As noted above, the April 1998 rating action also granted an increase in the 10 percent rating for peripheral vestibulopathy, including tinnitus, nystagmus, dizziness, and vomiting, as residuals of a head injury, to 30 percent effective November 25, 1991, (the maximum schedular evaluation assignable) under 38 C.F.R. § 4.87, Diagnostic Code 6204 (1999). Since the appellant did not withdraw the increased rating claim after the grant of a higher evaluation, the case is still in appellate status. AB v. Brown, 6 Vet. App. 35 (1993). However, this matter was not addressed in the October 1998 SOC and since the April 1998 rating action this matter has not been addressed in any SOC or supplemental SOC (SSOC). Moreover, since the April 1998 grant to a 30 percent rating, the rating criteria under DC 6204 (as well as DC 6205) were changed effective June 10, 1999 and the RO has not yet had the opportunity to evaluate the veteran's peripheral vestibulopathy under the new rating criteria. Additionally, the June 1998 NOD addressed all actions of the April 1998 rating action. However, except for the previously developed increased rating issue and entitlement to an effective date for service connection for migraine headaches prior to December 20, 1988, the only other denial in April 1998 was the denial of special monthly compensation based on need for the regular aid and attendance of another. However, the October 1998 SOC did not address this issue. The RO's failure to issue an SOC regarding the foregoing matters created a procedural defect which requires a remand under 38 C.F.R. § 19.9 (1999). See Godfrey v. Brown, 7 Vet. App. 398, 408-410 (1995). Pursuant to the provisions of 38 C.F.R. § 19.9(a) (amended effective Oct. 8, 1997), "[i]f further evidence or clarification of the evidence or correction of a procedural defect is essential for a proper appellate decision," the Board is required to remand the case to the agency of original jurisdiction for the necessary action. (Emphasis added). Accordingly, if a claim has been placed in appellate status by the filing of an NOD, the Board must remand the claim to the RO for preparation of an SOC as to that claim. Godfrey v. Brown, 7 Vet. App. 398, 408-410 (1995) and Archbold, 9 Vet. App. 124, 130 (1996). 38 U.S.C.A. § 7105(d)(1) (West 1991) states that after the filing of an NOD, if the claim is not allowed, the RO "shall prepare a statement of the case." See Evans v. West, 12 Vet. App. 396 (1998) (in which an RO refused to accept an NOD). If an NOD has been filed (but no SOC issued) the next step was for the RO to issue an SOC on the issue and the Board should have remanded that issue to the RO, not referred it there, for issuance of that SOC. Manlincon v. West, 12 Vet. App. 238 (1999) (citing Holland v. Gober, 10 Vet. App. 433, 436 (1997) (per curiam order) (vacating BVA decision and remanding matter when VA failed to issue SOC after claimant submitted timely NOD); and Fenderson v. West, 12 Vet. App. 119 (1999) (following Holland). Under such circumstances, however, the appeal as to entitlement to special monthly compensation (SMC) based on need for the regular aid and attendance of another will be returned to the Board following the issuance of the SOC only if the appeal as to that issue is perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); Archbold, supra. (An appeal consists of a timely filed NOD in writing and, after an SOC has been furnished, a timely filed Substantive Appeal. 38 C.F.R. § 20.200 (1999). Proper completion and filing of a Substantive Appeal are the last actions the appellant needs to take to perfect an appeal. 38 C.F.R. § 20.202 (1999)). To ensure full compliance with due process requirements, the case is REMANDED to the RO for the following development: 1. The RO should readjudicate the issue of entitlement to an increased evaluation for peripheral vestibulopathy, including tinnitus, nystagmus, dizziness, and vomiting, as residuals of a head injury, currently evaluated as 30 percent disabling, under the rating criteria which were revised effective June 10, 1999. This should include consideration of any Diagnostic Codes other than Diagnostic Code 6204 for peripheral vestibular disorders which may be applicable (e.g., Diagnostic Code 6205 Meniere's syndrome). 2. The veteran should be issued an SSOC as to the issue of entitlement to an increased evaluation for peripheral vestibulopathy, including tinnitus, nystagmus, dizziness, and vomiting, as residuals of a head injury. This SSOC should also address the issue of entitlement to special monthly compensation (SMC) based on the need for the regular aid and attendance of another. This SSOC should be accompanied by VA Form 9, Appeal to the Board, which is a Substantive Appeal that must be properly executed and returned to the RO in order to perfect the appeal as to the claim for SMC. The veteran must (and hereby is) apprised of his right to submit (and the necessity of filing) a substantive appeal in order to perfect the appeal as to SMC and have this claim of SMC reviewed by the Board. Absent the filing of a substantive appeal the Board will be without jurisdiction to adjudicate the matter. The appeal as to the issue of entitlement to SMC will be returned to the Board following the issuance of the SSOC only if it is perfected by the filing of a timely substantive appeal. When the above development has been completed, the veteran and his representative should be afforded the opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. By this REMAND the Board intimates no opinion, either factual or legal, as to the ultimate determination warranted in this case. The purpose of the REMAND is to accord the veteran due process of law. No action is required of the veteran until he receives further notice. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. A. BRYANT Member, Board of Veterans' Appeals