Citation Nr: 18148081 Decision Date: 11/07/18 Archive Date: 11/06/18 DOCKET NO. 17-02 599 DATE: November 7, 2018 ORDER Entitlement to an effective date prior to November 27, 2012, for the award of a 70 percent rating for service-connected traumatic brain injury (TBI) is denied. FINDINGS OF FACT 1. The Veteran’s original claim for service connection was received September 1, 1999; service connection was established on May 2000. 2. The Veteran filed a claim for increase with respect to service-connected TBI on November 27, 2012. 3. There is no evidence that entitlement to a higher disability evaluation for the Veteran’s service connected TBI was warranted prior to November 27, 2012. CONCLUSION OF LAW The criteria for entitlement to an earlier effective date for the award of a 70 percent rating for TBI prior to November 27, 2012 have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.1, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1979 to August 1999. This matter comes before the Board of Veterans’ Appeals (Board) from a March 2014 rating decision. Earlier Effective Date The Veteran seeks an earlier effective date prior to November 27, 2012 for the award of the 70 percent rating for his TBI. Specifically, the Veteran argues that his award should be effective December 1, 2002, the date the rating criteria for TBI changed. See March 2015 Notice of Disagreement. Generally, the effective date of an award of disability compensation is the day following separation from service or the date entitlement arose if the claim is received within one year of separation; otherwise, the effective date is the date of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (b); 38 C.F.R. § 3.400 (b)(2). With regard to those awards of increased compensation, an effective date for increased disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability 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 Gaston v. Shinseki, 605 F.3d 979, 984 (Fed.Cir.2010). The Court and VA’s General Counsel have interpreted the laws and regulations pertaining to the effective date for an increase as follows: If the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was “factually ascertainable.” If the increase occurred more than one year prior to the claim, the increase is effective the date of the claim. If the increase occurred after the date of the claim, the effective date is the date of increase. 38 U.S.C. § 5110 (b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400 (o)(1)(2); VAOPGCPREC 12-98 (1998). As to the laws and regulations regarding earlier effective date due to a change of law, where pension, compensation, or dependency and indemnity compensation is awarded or increased pursuant due to a liberalizing law, or a liberalizing VA issue approved by the Secretary or by the Secretary’s direction, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114. If a claim is reviewed on the initiative of VA within one year from the effective date of the law or VA issue, or at the request of a claimant received within one year from that date, benefits may be authorized from the effective date of the law or VA issue. 38 C.F.R. § 3.114 (a)(1). In this case, a May 2000 rating decision granted service connection for headaches as secondary to trauma, effective from September 1, 1999. The Veteran did not submit a timely notice of disagreement regarding the effective date of service connection. Therefore, the rating decision became final one year later. 38 U.S.C. § 7105. A claim for an increased rating was received on November 27, 2012. A March 2014 rating decision granted a 70 percent rating for TBI with headaches, according to the revised criteria of Diagnostic Code 8045. Initially, the Board observes that the regulations pertaining to traumatic brain injuries (TBI) were revised on September 23, 2008, and the effective date for these revisions is October 23, 2008. The new criteria apply only to claims received on or after the effective date. Any evaluation assigned under the new regulations could not be effective prior to October 23, 2008. Schedule for Rating Disabilities; Evaluation of Residuals of Traumatic Brain Injury (TBI), 73 Fed. Reg. 54,705 (Sept. 23, 2008). To the extent the Veteran claims an effective date consistent with the revised criteria, VA did not review the Veteran’s case on its own initiative. Rather, it reviewed the Veteran’s case pursuant to a claim he filed on November 27, 2012. As this claim was submitted more than one year after the effective date of the liberalizing law, the Board is barred as a matter of law from granting the earlier effective date that the Veteran has requested. There is no dispute that the Veteran filed a claim for increase for TBI with headaches on November 27, 2012. The question then becomes what is the date entitlement arose. There is no evidence within the one-year period prior to this date that indicates it was factually ascertainable that an increase in the TBI had occurred. VA and private treatment records do not show that it is factually ascertainable that a 70 percent rating is warranted prior to November 27, 2012. Furthermore, the RO relied on a VA examination date in December 2013. Consequently, there is no basis for an effective date earlier than November 27, 2012 for the increased rating for TBI with headaches. Accordingly, the Board finds that the appropriate effective date for the grant of 70 percent for service connected TBI is November 27, 2012, the date the Veteran filed his claim, and an earlier effective date is denied. The evidence in this case is not so evenly balanced to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Kettler, Associate Counsel