Citation Nr: 1753958 Decision Date: 11/27/17 Archive Date: 12/07/17 DOCKET NO. 13-31 845 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an earlier effective date prior to April 3, 2009 for the grant of a total disability rating based upon individual unemployability (TDIU). 2. Entitlement to an earlier effective date prior to April 3, 2009 for the assignment of a 40 percent rating for service-connected headaches/ traumatic brain injury. 3. Entitlement to an earlier effective date prior to November 8, 2007 for the assignment of a 20 percent rating for limitation of motion of the cervical spine due to laceration, behind right ear, residual of head trauma with a history of concussion. ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty service from February 1978 to February 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2010 and April 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. FINDINGS OF FACT 1. A claim for TDIU was received on April 3, 2009. 2. It was factually ascertainable as of April 3, 2008 that the Veteran was unable to obtain and/or maintain substantially gainful employment due solely to his service-connected disabilities. 3. A claim for an increased rating for headaches/ traumatic brain injury was received on April 3, 2009. 4. It was factually ascertainable as of April 3, 2008 that the Veteran met the criteria for a 40 percent rating for headaches/ traumatic brain injury. 5. A November 2007 rating decision assigned a 20 percent rating for a cervical spine disability from November 8, 2007. 6. The Veteran did not appeal or submit new evidence for the effective date for a 20 percent rating within a year of the November 2007 rating decision. CONCLUSIONS OF LAW 1. The criteria for an effective date of April 3, 2008, for entitlement to a TDIU have been met. 38 U.S.C. § 5110 (2014); 38 C.F.R. § 3.400 (2017). 2. The criteria for entitlement to an effective date of April 3, 2008 for the award of a 40 percent rating for headaches/ traumatic brain injury have been met. 38 U.S.C. §§ 5101, 5110 (2014); 38 C.F.R. §§ 3.151, 3.155, 3.157, 3.400 (2017). 3. The claim for an effective date prior to November 8, 2007 for the grant of a 20 percent rating for a cervical spine disability is dismissed. 38 U.S.C. § 7105 (2014); 38 C.F.R. § 20.301 (2017); Rudd v. Nicholson, 20 Vet. App. 296 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Legal Criteria - Effective Dates 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 later. See 38 U.S.C. § 5110 (2014); 38 C.F.R. § 3.400 (2016). 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 ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C. § 5110(b)(2), 38 C.F.R. § 3.400(o)(2); see also Harper v. Brown, 10 Vet. App. 125 (1997). A "claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement to a benefit. 38 C.F.R. § 3.1(p) (2016). Any communication indicating an intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a) (2016). An informal claim must identify the benefits sought; and upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of the receipt of the informal claim. Id. The mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a disability. Brannon v. West, 12 Vet. App. 32, 35 (1998). The effective date of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection, but rather, on the date the application was filed with VA. Lalonde v. West, 12 Vet. App. 377, 382 (1999). Effective Date for Increased Rating for Cervical Spine Disability A rating decision becomes final and binding if the Veteran does not timely perfect an appeal of the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. Previous determinations that are final and binding, including decisions of service connection, will be accepted as correct in the absence of collateral attack by showing the decision involved clear and unmistakable error (CUE)). 38 C.F.R. § 3.105(a). The United States Court of Appeals for Veterans Claims (Court) held that appellants are prohibited from collaterally attacking a prior final rating or Board decision by filing a freestanding earlier effective date claim. The Court explained that, once a rating decision which establishes an effective date becomes final, the only way that such a decision can be revised is if it contains CUE. The Court noted that any other result would vitiate the rule of finality. Rudd v. Nicholson, 20 Vet. App. 296 (2006). In other words, there are no freestanding claims for an earlier effective date. The Veteran must timely appeal the VA rating decision or Board decision that assigned the effective date in question. If an untimely freestanding claim for an earlier effective is raised, the Court has held that such an appeal should be dismissed. Id. at 299-300. Thus, the Board is required to dismiss freestanding claims for entitlement to earlier effective dates. Id; see also DiCarlo v. Nicholson, 20 Vet. App. 52 (2006) (stating there is no such procedure as a freestanding challenge to the finality of a VA decision). An August 2008 rating decision increased the evaluation for limitation of motion of the cervical spine from 10 percent to 20 percent disabling, effective from November 8, 2007. The Veteran did not submit a timely notice of disagreement with the August 2008 rating decision, and it became final. 38 U.S.C.A. § 7105. In February 2011, the Veteran submitted a claim for an earlier effective date for a 20 percent rating for his cervical spine disability. The claim was denied in a December 2012 rating decision. In March 2013, the Veteran submitted a Notice of Disagreement with the effective date assigned in August 2008 rating decision. Because the notice of disagreement was submitted over a year after notice of the August 2008 decision, the Board concludes that the notice of disagreement was not timely filed. 38 C.F.R. § 20.302 (a). Because the effective date for the assignment of the 20 percent rating for his cervical spine disability became final, the Veteran's only recourse is to have the final decision revised on the grounds of clear and unmistakable error (CUE). See 38 C.F.R. § 3.105; Rudd, supra. In this case, however, the Veteran has not claimed CUE in the August 2008 rating decision. In summary, the August 2008 rating decision, which assigned the effective date for a 20 percent rating for a cervical spine disability, is final. The Veteran's challenge to the effective date is a freestanding claim and must be dismissed. See Rudd; see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that when the law is dispositive of the claim, it must be denied due to lack of legal entitlement). The Board is bound by the laws and regulations that apply to veterans' claims. 38 U.S.C. § 7104(c); 38 C.F.R. §§ 19.5, 20.101(a). For the reasons stated above, those laws and regulations preclude the Board from addressing the Veteran's earlier effective date claim on the merits. Effective Date for TDIU 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 later. See 38 U.S.C. § 5110 (2014); 38 C.F.R. § 3.400 (2017). 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 ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C. § 5110(b)(2), 38 C.F.R. § 3.400(o)(2); see also Harper v. Brown, 10 Vet. App. 125 (1997). A "claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement to a benefit. 38 C.F.R. § 3.1(p) (2017). Any communication indicating an intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a) (2017). An informal claim must identify the benefits sought; and upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of the receipt of the informal claim. Id. A Veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Where a Veteran is unemployable by reason of his or her service-connected disabilities, but they fail to meet the percentage standards set forth in § 4.16(a), TDIU claims should be submitted to the Director, Compensation and Pension Service, for extraschedular consideration. 38 C.F.R. § 4.16(b). The Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance. Instead, the Board must refer any claim that meets the criteria for referral for consideration of entitlement to TDIU on an extraschedular basis to the VA Director, Compensation and Pension Service. The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the Veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for a TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). An April 2010 rating decision granted a TDIU rating from April 3, 2009, the date of the increased rating claim. The increased rating claim was considered a claim for unemployability under Rice. A formal claim for a TDIU was received on March 12, 2010. In his claim for TDIU, the Veteran reported that his last employment was as a clerical assistant. He reported that he last worked in October 2006. The Veteran indicated that he was unable to work due to his service-connected traumatic brain injury. A neuropsychological examination dated in February 2008 reflects that the Veteran reported difficulty maintaining employment due to headaches. In August 2009, the Veteran had a VA examination for traumatic brain injury. The Veteran reported that his usual occupation was billing for schools. He reported that he was unemployed. In March 2010, the Veteran submitted employment information from the Flint School district. The information indicated that he last worked there in 2006. It further noted that the Veteran missed approximately 5 days a month due to headaches and ultimately retired because of his headaches. Social Security records reflect that the Veteran was adjudicated disabled from September 1, 2009 due to his impairments, including chronic headaches, cervical disc protrusion with spinal stenosis, bilateral hearing loss and tinnitus, and residual effects of head trauma with a history of concussion. The criteria of § 4.16(a) are met from November 8, 2007. The Board finds that that it was factually ascertainable that the criteria for a TDIU were met within the one-year period before the receipt of the April 2009 claim. The evidence submitted in conjunction with the claim indicates that the Veteran last worked in 2006 and retired due to his headaches. Accordingly, it is factually ascertainable that the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities within a year prior to his TDIU claim. Accordingly, the Board concludes that an effective date of April 3, 2008 for entitlement to a TDIU is warranted. Effective Date for Increased Rating for Traumatic Brain Injury with Headaches An August 2008 rating decision granted service connection for headaches as secondary to laceration, effective from October 28, 2002. A 30 percent rating was assigned from October 28, 2002. The Veteran did not submit a timely notice of disagreement regarding the effective date of service connection for headaches or the initial rating assigned in the August 2008 rating decision. Therefore, the rating decision became final one year later. 38 U.S.C. § 7105. A claim for an increased rating was received in April 2009. Therein, the Veteran's representative requested that the Veteran's disability be evaluated under criteria pertaining to traumatic brain injury. A February 2010 rating decision granted a 40 percent rating for headaches, according to the criteria of Diagnostic Code 8045. Revised Diagnostic Code 8045 states that there are three main areas of dysfunction that may result from TBIs and have profound effects on functioning: cognitive, emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a, Diagnostic Code 8045. For residuals not listed in the Diagnostic Code that are reported on examination, they are to be evaluated under the most appropriate diagnostic code Traumatic brain injury is rated according to Diagnostic Code 8045. Diagnostic Code 8045 states there are three main areas of dysfunction that may result from TBIs and have profound effects on functioning: cognitive (which is common in varying degrees after a TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a, Diagnostic Code 8045. The table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" contains 10 important facets of a TBI related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, and labeled "total." However, not every facet has every level of severity. The Consciousness facet, for example, does not provide for an impairment level other than "total," since any level of impaired consciousness would be totally disabling. Assign a 100-percent evaluation if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," assign the overall percentage evaluation based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, assign a 70 percent evaluation if 3 is the highest level of evaluation for any facet. A neuropsychological examination dated in February 2008 reflects that the Veteran reported difficulty maintaining employment due to headaches. In August 2009, the Veteran had a VA examination for traumatic brain injury. The Veteran reported that he was knocked out while playing football during service in 1979. He was unconscious for a few minutes. The Veteran reported daily headaches. His headaches were described as constant. He also reported constant pain, starting in the scar from the stitches behind the skull and going through the ears. He also had pain in his neck. The Veteran reported sleeping for about 4 hours and waking up tired. He reported that he dozed off during the day. The report noted that he was irritable and angry. His psychiatric symptoms included anxiety, depression, and anger. His memory impairment was described as mild. The Veteran's cognitive symptoms included decreased attention, difficulty concentrating, and difficulty with executive functions. On examination, the examiner noted a complaint of mild memory loss, attention, concentration, or executive functions, but without evidence on testing. Therefore, a "1" is assigned for the memory facet. The examiner noted that the Veteran's judgment was normal. A "0" is assigned for the judgment facet. The examiner noted that the Veteran's social interaction was occasionally inappropriate. A "1" is assigned for the social interaction facet. The examination noted that the Veteran was always oriented to person, time, place, and situation. A "0" is assigned for the orientation facet. His motor activity was normal. A "0" is assigned for the motor activity facet. His visual spatial orientation was normal. A "0" is assigned for the visual spatial orientation facet. His subjective symptoms did not interfere with work, instrumental activities of daily living, or family or close relationships. A "0" is assigned for subjective symptoms. The examination noted one or more neurobehavioral effects that frequently interfere with workplace interaction, social interaction, or both, but do not preclude them. A "2" is assigned for neurobehavioral effects. The Veteran was able to communicate by spoken and written language and to comprehend spoken and written language. A "0" is assigned for communication. His consciousness was normal. Based on the August 2009 VA examination, a 40 percent rating was assigned because the highest facet on the examination was assigned a level 2. A VA neuropsychological evaluation dated in November 2008 noted that the Veteran's general mental ability was above average. His performance on a variety of neuropsychological measures was variable. Testing indicated normal capability for complex attention and the ability to simultaneously track and sequence two competing sets of visual stimuli. Testing showed a mild level of depressive symptomatology. Symptoms endorsed included loss of pleasure, difficulty, sadness, crying, loss of energy, crying, and fatigue. The examination did not include an evaluation of his social and workplace interaction. The Board finds that it was factually ascertainable in the year prior the claim that the Veteran had one or more neurobehavioral effects that frequently interfered with workplace interaction, social interaction, or both, but did not preclude them. A February 2008 neuropsychological evaluation noted that his headaches resulted in difficulty maintaining employment. 38 C.F.R. § 3.400(o)(2). Accordingly, it is factually ascertainable that the Veteran met the criteria for a facet of "2" under the criteria pertaining to neurobehavioral effects. Accordingly, an effective date of April 3, 2008 for a 40 percent rating is warranted. The Board has considered the Veteran's claims and decided entitlement based on the evidence. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER The claim for an earlier effective date for a 20 percent rating for cervical spine disability is dismissed. An effective date of April 3, 2008 for entitlement to a TDIU is granted, subject to regulations governing the payment of monetary benefits. An effective date of April 3, 2008 for a 40 percent rating for service-connected headaches/ traumatic brain injury is granted, subject to regulations governing the payment of monetary benefits. ____________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs