Citation Nr: 1801256	
Decision Date: 01/09/18    Archive Date: 01/19/18

DOCKET NO.  17-59 016	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1. Entitlement to service connection for residuals of traumatic brain injury (TBI).

2. Entitlement to a disability evaluation in excess of 10 percent for internal hemorrhoids.

3. Entitlement to an effective date earlier than September 1, 2008, for assignment of a compensable rating for internal hemorrhoids.


REPRESENTATION

Veteran represented by:	Kathy Lieberman, an attorney


ATTORNEY FOR THE BOARD

Z. Sahraie, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the U.S. Army from June 1960 to December 1960 and from December 1975 to April 1976.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a 
November 2008 rating decision issued by the Department of Veterans Affairs (VA) 
Regional Office (RO) in San Juan, the commonwealth of Puerto Rico.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The issue of entitlement to an increased rating for internal hemorrhoids is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. The preponderance of the evidence shows the Veteran's residuals of TBI are etiologically related to service.  

2. The Veteran initiated his claim for increase for internal hemorrhoids on September 15, 2008.  The record does not demonstrate a factually ascertainable increase in the level of disability prior to that date.


CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for residuals of TBI have been met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017).

2. The criteria for an effective date prior to July 28, 2010 for the award of a compensable rating for internal hemorrhoids have not been met.  38 U.S.C. § 5110 (West 2014); 38 C.F.R. § 3.400 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to notify and assist

When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016).  See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

The Veteran has been provided notice letters throughout the appeal that address all notice elements required.  There has been no allegation of notice error in this case.  See Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009).  

The Board has also satisfied its duty to assist.  38 U.S.C.A. § 5103A; 38 C.F.R. 3.159.  VA has obtained all identified and available treatment records for the Veteran.  In addition, the Veteran underwent a VA examination in February 2015 in connection with his claim for service connection.  The Board finds the examination adequate, because it included a review of the medical file, an interview of the Veteran, and examination findings supported by rationale.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  In light of the foregoing, the Board finds that VA has provided the Veteran with every opportunity to submit evidence and arguments in support of his appeal.  The Veteran has not identified any outstanding evidence that needs to be obtained.  



Entitlement to service connection for residuals of a TBI

Service connection may be established for disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 U.S.C.A. §§ 1101, 1110; 38 C.F.R. § 3.303.  

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b).  

The Federal Circuit has held that continuity of symptomatology under 38 C.F.R. § 3.303(b) applies only to chronic diseases listed in 38 C.F.R. § 3.309 (2017).  Walker v. Shinseki, 708 F.3d 1331, 1338 (2013).  Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2017).  

The record reflects that the Veteran was injured in service in October 1960, when he was struck in the face during an altercation and rendered unconscious.  He suffered a concussion and facial lacerations in the incident.  There is no evidence the Veteran reported residual symptoms in the aftermath of the incident.  However, he has complained of ongoing symptoms including recurrent headaches, memory loss, and other cognitive deficits, and the record reflects decreased motor activity due to apraxia, as well as impairment of visual and spatial orientation, during the current appeal period.

The Veteran was afforded a VA examination in February 2014 to address the etiology of his headaches and cognitive deficits.  The examiner confirmed the presence of the aforementioned symptoms, but opined that the documented in-service injury was less likely than not the proximate cause of the symptoms, citing instead the Veteran's age.  The Board is ultimately unconvinced by this rationale.  First, critically, there is no alternative provenance for the reported and documented symptoms, each of which, independently, the examiner confirmed are possible residuals of traumatic brain injury.  Second, the Veteran's contentions during the appeal period have been consistent and credible.  

In sum, the preponderance of the evidence, summarized above, supports the Veteran's claims that his current symptoms, including headaches, memory loss, and other cognitive deficits, are etiologically related to his documented in-service injury.  Resolving all reasonable doubt in the Veteran's favor, the Board finds entitlement to service connection warranted in this case.  See Gilbert v. Derwinski, 1. Vet. App. 49 (1991).

Entitlement to an effective date earlier than September 1, 2008, for assignment of a compensable rating for internal hemorrhoids

The general rule with respect to the effective date of an award of increased compensation is that the effective date of the award "shall not be earlier than the date of receipt of the application thereof."  38 U.S.C.A. § 5110 (a).  This statutory provision is implemented by regulation that provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later.  38 C.F.R. § 3.400 (o)(1) (2017). 

An exception to that rule applies, however, under circumstances where the evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation.  If an increase in disability occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable."  38 U.S.C.A. 5110 (b)(2) (West 2015); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. 3.400 (o)(1)(2) (2017); VAOPGCPREC 12-98 (1998).  If the increase occurred more than one year prior to date of receipt of the claim, the increase is effective the date of receipt of the claim.  If the increase occurred after the date of receipt of the claim, the effective date is the date of increase.  38 U.S.C.A. 5110 (b)(2) (West 2015); 38 C.F.R. § 3.400 (o)(1)(2) (2017).

The assignment of an effective date turns on the date of claim and the date that it was factually ascertainable that an increase was warranted.  In this case, the Veteran has been awarded a 10 percent rating for internal hemorrhoids from September 15, 2008, the date he initiated his claim for increase.  The record contains no evidence of a claim, formal or informal, prior to September 15, 2008, thus, any possible earlier effective date turns on whether an increase was factually ascertainable prior to that date.

The record is bare of medical evidence relating to the Veteran's hemorrhoids within a year of his claim for increase.  Any increase in the Veteran's level of disability is therefore not factually ascertainable prior to the date of claim.  As it is not factually ascertainable that a compensable rating was warranted prior to September 15, 2008, an earlier effective date is not assignable under the laws governing the assignment of effective dates.


ORDER

Entitlement to service connection for residuals of TBI is granted.

Entitlement to an effective date prior to September 15, 2008, for a compensable rating for internal hemorrhoids, is denied.




REMAND

The record reflects that the Veteran has not been afforded a recent VA examination in connection with his claim for increase for internal hemorrhoids.  The Veteran's most recent VA examination occurred in October 2008, and he has alleged worsening symptoms since that time.  Thus, in order to obtain a clear picture of the current nature and severity of the Veteran's disability, the matter must be remanded for a new VA examination.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1. After obtaining any necessary authorization, update the file with any VA or private treatment records relevant to the Veteran's claims.  If any requested records are unavailable, the Veteran should be notified to that effect.

2. After completing the development above, schedule the Veteran for a VA examination to assess the current nature and severity of his internal hemorrhoids.  The electronic file must be made available to the examiner, and the examination report must reflect that such review occurred.  All tests and studies deemed necessary must be performed.  All pertinent symptomatology and findings should be reported in detail in accordance with VA rating criteria.

3. After completing the above development, and any other development deemed necessary, readjudicate the issue on appeal.  If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative.  After they have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.


The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment.  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 38 U.S.C.A. §§ 5109B, 7112 (West 2014).









______________________________________________
GAYLE E. STROMMEN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs