Citation Nr: 1326421	
Decision Date: 08/20/13    Archive Date: 08/26/13

DOCKET NO.  09-39 559	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Huntington, West Virginia


THE ISSUES

1.  Entitlement to an effective date earlier than October 2, 2008 for the award of service connection for traumatic brain injury (TBI).

2.  Entitlement to an initial rating greater than 10 percent for TBI, prior to October 23, 2008.


REPRESENTATION

Appellant represented by:	David L. Huffman, Attorney


WITNESSES AT HEARING ON APPEAL

Appellant and his spouse


ATTORNEY FOR THE BOARD

T. Mainelli, Counsel


INTRODUCTION

The Veteran served on active duty from December 1964 to January 1967.

This appeal to the Board of Veterans' Appeals (Board) arose from a March 2009 rating decision in which the RO granted service connection for TBI, and assigned an initial 10 percent rating from October 2, 2008 to October 22, 2008, and a  70 percent rating ,effective October 23, 2008.  In March 2009, the Veteran filed a notice of disagreement (NOD) with the initial disability rating as well as the effective date of award for service connection.  A statement of the case (SOC) was issued in October 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) later that month.

Because the appeal involves disagreement with the initial rating assigned following the award of service connection, the Board has characterized the appeal in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). 

The Board observes that, in a December 2011 rating decision, the RO determined that there was no clear and unmistakable error (CUE) in an August 1967 rating decision in failing to grant service connection for organic brain syndrome.  The Veteran was notified of this decision by letter dated January 5, 2012.  The time limit for appealing this decision has expired.  See 38 C.F.R. §§ 20.201, 20.300, 20.302 (2012).

In June 2013, the Veteran and his wife testified during a Board video-conference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is associated with the Virtual VA electronic records storage system. 

In July 2012, the Veteran appointed the Blinded Veterans Association as his accredited representative via a properly completed VA Form 21-22.  In December 2012, the Veteran appointed private attorney David Huffman as his accredited representative via a properly completed VA Form 21-22a.  The later VA Form 21-22a revokes the power of attorney on behalf of the Blinded Veterans Association.  The Board recognizes the change in representation to Attorney Huffman.

As addressed below, the Board grants an earlier effective date for the award of service connection for TBI.  As such, the assigned disability rating for TBI prior to October 2, 2008 (the effective date of the award assigned by the RO) must be addressed by the RO in the first instance.  The claim of entitlement to an initial rating greater than 10 percent for TBI for the time period prior to October 23, 2008 is addressed in the remand following the order; this matter is being remanded to the RO for further action,  VA will notify the Veteran when further action, on his part, is required..


FINDINGS OF FACT

1.  All notification and development actions needed to fairly adjudicate the matter herein decided have been accomplished.

2.  The Veteran filed his original service connection claim for organic brain syndrome on November 7, 1991; there are no prior written communications reflecting an intent to file a service connection claim for organic brain syndrome or TBI.

3.  A May 1992 rating decision in which the RO denied service connection for organic brain syndrome must be reconsidered as previously unconsidered, existing and pertinent service treatment records (STRs) were subsequently associated with the claims file.

4.  The lay and medical evidence establishes that the Veteran's organic brain syndrome was present on November 7, 1991, and that such disability was associated with a head injury during active service.


CONCLUSION OF LAW

The criteria for an effective date of November 7, 1991 for the award of service connection for TBI (previously characterized as organic brain syndrome) are met.  38 U.S.C.A. §§ 5101, 1110, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.155, 3.156(c), 3.157 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits.  VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). 

In this case, the Veteran is challenging the effective date assigned for the award of service connection for TBI.  In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  Id. at 490-91.  See also VAOPGCPREC 8- 2003 (December 22, 2003).  Thus, VA's duty to notify has been satisfied with respect to the issues of entitlement to an earlier effective date of award for TBI. 

Furthermore, as explained below, the Board has granted an effective date of November 7, 1991 for the award of service connection for TBI.  The Board has also found, as a matter of law, that an earlier effective date cannot be awarded.  Thus, there is no further duty to notify or assist under the VCAA.  See VAOPGCPREC 5-2004 (June 23, 2004) (VA not required to provide VCAA notice or assistance where there is no legal basis for claim or where undisputed facts render the claimant ineligible for the benefit sought).  See also Mason v. Principi, 16 Vet. App. 129, 132 (2002). 

II.  Analysis

The Veteran seeks entitlement to an effective date earlier than October 2, 2008 for the award of service connection for TBI.  His TBI is related to a motor vehicle accident which occurred in June 1966.  The law governing effective dates provides that "[u]nless specifically provided otherwise in this chapter, the effective date of an award based on an original claim . . . of compensation . . . shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor."  38 U.S.C.A. § 5110(a). 

The implementing regulation similarly states that the effective date "will be the date of receipt of the claim or the date entitlement arose, whichever is the later."  38 C.F.R. § 3.400(b)(2)(i).  An exception is extended to claims filed within one year of the date of discharge or release from service wherein the effective date of such award is the day following the discharge from release.  38 U.S.C.A. § 5110(b)(1). 

The VA administrative claims process recognizes formal and informal claims.  A formal claim is one that has been filed in the form prescribed by VA.  See 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a).  An informal claim may be any communication or action, indicating an intent to apply for one or more benefits under VA law.  Thomas v. Principi, 16 Vet. App. 197 (2002).  See 38 C.F.R. §§ 3.1(p), 3.155(a).  An informal claim must be written, see Rodriguez v. West, 189 F. 3d. 1351 (Fed. Cir. 1999), and it must identify the benefit being sought.  Brannon v. West, 12 Vet. App. 32, 34-5 (1998). 

Although a claimant need not identify the benefit sought "with specificity," see Servello v. Derwinski, 3 Vet. App. 196, 199-200 (1992), some intent on the part of the veteran to seek benefits must be demonstrated.  See Brannon v. West, 12 Vet. App. 32, 34-35 (1998).  See also Talbert v. Brown, 7 Vet. App. 352, 356-7 (1995) (noting that while VA must interpret a claimant's submissions broadly, VA is not required to conjure up issues not raised by claimant).  The United States Court of Appeals for the Federal Circuit has emphasized VA has a duty to fully and sympathetically develop a veteran's claim to its optimum.  Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998).  This duty requires VA to "determine all potential claims raised by the evidence, applying all relevant laws and regulations," Roberson v. West, 251 F.3d 1378, 1384 (Fed. Cir. 2001), and extends to giving a sympathetic reading to all pro se pleadings of record.  Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). 

Historically, the Veteran first raised a service connection claim for organic brain syndrome (currently recognized as TBI under current medical terminology) on November 7, 1991.  The RO denied this claim in a May 1992 rating decision.  In June 1992, the Veteran timely filed an NOD.  In October 1992, the RO issued an SOC.  The Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) later that month.

Thereafter, by telephone contact reduced to writing, the Veteran withdrew from appeal the issue of entitlement to service connection for organic brain syndrome.  See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.204 (2012).  Any interpretative doubt was resolved with a VA Form 21-4138 filing by the Veteran in April 1998, in which he specified the appeals that he was pursuing to the Board.

Additionally, in a December 1998 decision, the Board noted, in the Introduction section, that the service connection claim for organic brain syndrome had been properly withdrawn by the Veteran.  The Veteran did not raise an objection to this finding.

Therefore, unless an exception applies, the RO's May 1992 rating decision which denied service connection for organic brain syndrome is final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.204 (2012).  

At this point, the Board observes that the RO's May 1992 rating decision included review of the Veteran's STRs which had been associated with the claims file (located in a white folder).  There is a manila folder in Volume 3 which includes complete hospitalization records related to the June 1966 motor vehicle accident, copies VA examination reports dated May and June 1999, and dental radiograph reports dated June 1999.  None of these records are date-stamped as to when they were received.

Chronologically, these records appear in the claims file well after the RO's May 1992 rating decision.  The Board can find no reference in the rating decisions before or after the May 1992 rating decision as to when the records were received.  The rating decision of May 1992 did not reference any STRs contained in the manila envelope which were not associated with the record in the original STR packet.  A review of the Board's December 1998 decision also does not clarify this matter.

On this record, given the location of the manila envelope and lack of documentation concerning the receipt of records, the Board must assume that the manila envelope was received after the RO's May 1992 rating decision.

The contents of the manila envelope contain clinic records documenting the Veteran's complaints of headaches and dizziness.  A skull x-ray was taken.  There is one occasion wherein the Veteran was noted to have become lost when attempting to report to the clinic.  The STRs document that the Veteran was unconscious for a 32-hour period following his motor vehicle accident.  Dizziness and headaches are recognized as potential subjective symptoms of brain disease due to trauma under the version of Diagnostic Code 8045 in effect prior to October 23, 2008.

Given the above, the Board must hold that the STRs contained in the manila claims (which were associated with the claims file after the final May 1992 RO rating decision was issued) are pertinent to the service connection claim for TBI.  In such circumstances, the claim is reconsidered as an original claim of service connection.  38 C.F.R. § 3.156(c) (2012).  Thus, the claim on appeal is considered to have been filed on, and to have remained pending from, November 7, 1991.

The evidence of record reflects that the Veteran was injured in a motor vehicle accident in June 1966.  He was noted to have been unconscious for a 32-hour period after the accident.  There was no specific assessment for a head injury other than a reference to skull x-rays having been taken.  The Veteran incurred multiple injuries including left and right mandibular fractures, fracture of the left zygoma and fracture of the right humerus.  As indicated above, the Veteran reported symptoms of dizziness and headaches.

The Veteran was formally diagnosed with organic brain syndrome with mixed features of affective and personality disturbances during an April-May 1991 VA hospitalization by the VA Chief of Psychiatry following neuropsychiatric testing.  This diagnosis, currently classified as TBI, was confirmed by a VA TBI examination in December 2008.  As the Board does not doubt based upon current evidence of file that the Veteran's TBI due to inservice head injury (previously diagnosed as organic brain syndrome) existed at the time of the November 7, 1991 application for service-connected benefits, the Board grants an effective date of November 7, 1991 for the award of service connection for TBI.

The remaining question is whether there was a pending or unadjudicated service connection claim for organic brain syndrome/TBI before November 7, 1991.   A review of the Veteran's claims file contains no written communication, either formal or informal, before November 7, 1991 reflecting an intent to file a service connection claim for TBI (or organic brain syndrome) under 38 C.F.R. § 3.155(a). 

Additionally, as the November 7, 1991 claim is the original claim for TBI filed, any reference to TBI in the STRs, private records or VA clinic records cannot be construed as an informal claim under 38 C.F.R. § 3.157(b)(1). 

Furthermore, as the original claim in November 1991 was received more than one year after service discharge, the filing exception under 38 U.S.C.A. § 5110(b)(1) does not apply.

In light of the above, the Board concludes that, on these facts, as a matter of law, an effective date of November 7, 1991, but no earlier date, for the award of service connection for a TBI is assignable.  


ORDER

An effective date of November 7, 1991 for the award of service connection for TBI is granted.


REMAND

The Board regrets any further delay in adjudicating the initial rating claim, but the Board's award of an earlier effective date of award for service connection for TBI necessitates additional RO action prior to any further appellate review.

The RO has assigned an initial 10 percent rating for TBI from October 2, 2008 to October 22, 2008.  Via the above-noted decision, the Board has now granted an effective date of November 7, 1991 for the award of service connection for TBI.  As such, an initial rating extending from November 7, 1991 to October 1, 2008 has yet to be assigned.  The Board, therefore, must remand the matter of a higher initial rating prior to October 23, 2008-to include the assignment of a rating for the noted period-for RO adjudication, in the first instance.  See Bernard v. Brown, 4 Vet. App. 384 (1993) (the Board must consider whether a claimant will be prejudiced by addressing a question that has not been addressed by the RO).

Prior to adjudicating the claim, to ensure that all due process requirements are met and that the record is complete, the RO should obtain and associate with the claims file all outstanding, pertinent records.

The record reflects that the Veteran has been receiving treatment at the VA Medical Center (VAMC) in Clarksburg, West Virginia.  While the claims file currently includes treatment records dated to December 9, 2011, more recent treatment records may now be available.  The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file.  See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).  Hence, the RO should obtain from the Clarksburg VAMC any records of treatment since December 9, 2011, following the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities.

The RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claim remaining on appeal.  The RO's letter to the Veteran should explain that he has a full one-year period for response.  See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period).  In its letter, the RO should specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent records.

Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). 

The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA).  See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012).  However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations.  Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim for higher rating on appeal.  The RO's adjudication of the claim should include assignment of an initial rating from the new, November 7, 1991 effective date of the award of service connection to October 1, 2008, as well as consideration of whether "staged rating" of the Veteran's disability (assignment of different ratings for distinct periods of time, based on the facts found), pursuant to Fenderson (cited above), is appropriate. 

Accordingly, this matter is hereby REMANDED for the following action:

1.  Obtain from the Clarksburg VAMC all outstanding, pertinent records of evaluation and/or treatment of the Veteran, dated since December 9, 2011.  The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities.  All records and/or responses received should be associated with the claims file.

2.  Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the remaining claim on appeal that is not currently of record. 

The RO should clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period).

3.  If the Veteran responds, the RO should assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159.  All records/responses received should be associated with the claims file.  If any records sought are not obtained, the RO should notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken.

4.  To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND.  If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken.  See Stegall v. West, 11 Vet. App. 268 (1998).

5.  After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should adjudicate the claim for higher rating for TBI remaining on appeal.  The RO's adjudication should include assignment of an initial rating from the new, November 7, 1991 effective date of the award of service connection  to October 1,2008, as well as consideration of whether "staged rating" of the Veteran's disability is appropriate.

6.  If the benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration.

The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication, and it is not the Board's intent to imply whether the benefits requested should be granted or denied.  The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame.  See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992).

This REMAND must be afforded expeditious treatment.  The law requires that all claims 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs