Citation Nr: 18148626 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 15-23 072A DATE: November 8, 2018 ORDER Entitlement to an effective date prior to October 19, 2017, for a 50 percent disability rating for headaches, associated with residuals of traumatic brain injury (TBI), is denied. REMANDED Entitlement to an increased rating for residuals of TBI (also claimed as concussion), to include an effective date prior to October 19, 2017, for the award of a 40 percent disability rating, is remanded. Entitlement to service connection for an acquired psychiatric disability is remanded. Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. A November 2014 rating decision granted service connection for headaches associated with TBI, and assigned a 30 percent rating effective February 27, 2014; no appeal was taken from that determination, new and material evidence was not received within the one-year appeal period, and there has not been an adjudicatory finding of clear and unmistakable error as to that determination. 2. Following the November 2014 rating decision assignment of a 30 percent initial rating for headaches, no formal claim, or communication which may be reasonably construed as a claim, for an increased rating for headaches was received prior to October 19, 2017. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to October 19, 2017, for the for the award of a 50 percent disability rating for headaches associated with residuals of mild traumatic brain injury have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.159, 3.400, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from February 1986 to February 1990. These matters come before the Board of Veterans’ Appeals (Board) on appeal of November 2014 (TBI), March 2017 (psychiatric disability), and January 2018 (headaches and TDIU) decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. The Board has recharacterized the Veteran’s claim for service connection for depression, posttraumatic stress disorder (PTSD), and unspecified mental health conditions, in the manner reflected above. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (a psychiatric claim cannot be limited only to a particular diagnosis, but must be considered a claim for any mental disability reasonably encompassed). Effective Date – Legal Criteria Generally, the effective date of a rating 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. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. Where a claim has been finally adjudicated and then reopened at a later date, the effective date of such an award shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (q)(2). If there is a prior final VA denial of the benefit sought, the effective date cannot be earlier than a subsequent claim to reopen. Leonard v. Principi, 17 Vet. App. 447 (2004). Prior to March 24, 2015, VA defined a “claim” as “a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit.” 38 C.F.R. § 3.1 (p); see also 79 Fed. Reg. 57,696 (Sept. 25, 2014) (effective March 24, 2015) (eliminating informal claims). An informal claim was defined as “[a]ny communication or action indicating an intent to apply for one or more benefits.” 38 C.F.R. § 3.155 (a). Thus, the essential elements for a claim, whether formal or informal, were “(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing.” Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). Effective Date – Headaches associated with TBI The Veteran requests an effective date prior to October 19, 2017, for the award of a 50 percent disability rating for headaches associated with residuals of TBI. The Veteran filed a claim for service connection for concussion and post-concussion trauma, received on February 27, 2014. A November 2014 rating decision granted service connection for headaches associated with TBI, and assigned a 30 percent disability rating effective February 27, 2014, and also granted service connection for traumatic brain injury, with a 10 percent rating effective February 27, 2014. The Veteran submitted a notice of disagreement, and accompanying correspondence, in which it was specifically indicated that the Veteran disagreed only with the evaluation of service-connected TBI at 10 percent disabling. In July 2015, the Veteran stated, regarding his headache condition, that “it is stable at this point, I agree with [the assigned] rating.” Because the Veteran did not file timely notice of disagreement with respect to the assigned rating for headaches due to TBI, new and material evidence was not received within the one-year appeal period, and no finding of clear and unmistakable error has been made regarding that issue, the November 2014 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. Under 38 C.F.R. § 3.156 (b), if new and material evidence is received within one year prior to the expiration of the appeal period, such will be considered as having been filed in connection with the claim pending at the beginning of the appeal period. The Board notes that new evidence, including a VA examination in May 2015 and hearing testimony before a Decision Review Officer, was received within one year of the rating decision. However, such evidence is not material as it does not relate to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156 (a). The claim for service connection had been granted, and did not require additional substantiation. The Veteran expressed satisfaction, rather than disagreement, with the assigned rating during the appeal period. Therefore, the pending claims exception is inapplicable. 38 C.F.R. § 3.156 (b). Following the final November 2014 rating decision assignment of a 30 percent initial rating for headaches, no formal claim, or communication which may have been reasonably construed as a claim, for an increased rating for headaches was received prior to October 19, 2017. Rather, the Veteran underwent a VA examination on October 19, 2017, the results of which served as the basis for the award of a 50 percent rating effective from October 19, 2017. When medical records indicate an increase in a disability, receipt of such medical records may be used to establish an effective date for retroactive benefits based on facts found of an increase in a disability only if a complete claim or intent to file a claim for an increase is received within one year of the date of the report of examination, hospitalization, or medical treatment. 38 C.F.R § 3.340(o)(2). As such, the record does not provide a basis for an award of an effective date earlier than October 19, 2017 as to the award of a 50 percent increased rating for headaches. As the preponderance of the evidence is against the claim, the appeal for an effective date earlier than October 19, 2017 for the award of a 50 percent rating for headaches is denied. REASONS FOR REMAND VA’s duty to assist includes procuring relevant service medical and personnel records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c)(2). The record suggests possible existence of outstanding service department records directly relevant to the issue of entitlement to service connection for a psychiatric disability on appeal. During a February 2017 VA psychiatric evaluation, the Veteran indicated that he served in the Army National Guard between 1996 and 1999, and was deployed to Kuwait and Saudi Arabia. He alleged that his unit was trained to pick up bomb caplets, and that he experienced anxiety since that time. In a VA mental health evaluation in 2012, he reported having been deployed to Panama and having been shot at while on maneuvers. In 2011, he reported being in Afghanistan for almost three years. The Veteran’s Form DD-214 shows that he was in the Marine Corps from February 1986 until February 1990, without foreign service. However, the Veteran’s verified period of service coincides with U.S. military action in Panama, and it does not appear that VA attempted to corroborate the Veteran’s reported stressor. VA also did not attempt to corroborate the Veteran’s reported service in the Army National Guard, or procure records (if any) from that branch. Cognizant of VA’s duty to fully develop the record before reaching a decision on the merits, remand is necessary to procure records and attempt to corroborate the reported psychological stressors. 38 U.S.C. § 5013A. The Veteran had a VA psychiatric examination in February 2017. The examiner interviewed the Veteran and concluded that he did not have a current mental health disorder. The examiner noted previous diagnoses of PTSD, major depressive disorder, and Bipolar II disorder, but nevertheless stated that a diagnosis could not be provided due to inconsistencies in the Veteran’s story, including his account of military service. She reasoned that the Veteran was unable to remember if his depression began before or after his headaches. The Board finds the opinion and supporting rationale to be inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The examiner mentioned previous psychiatric diagnoses, but did not explain why they were no longer applicable. Also, she indicated that her evaluation was not fully informed because of inconsistencies in the Veteran’s account of his military service. After further development, the examiner should provide an addendum opinion reflecting consideration of the expanded record. The Veteran’s claim for service connection for an acquired psychiatric disability is inextricably intertwined with the claim for entitlement to a TDIU, and an increased rating for residuals of TBI. See Harris v. Derwinski, 1 Vet. App. 180, 181 (1991) (claims related to each other should not be subject to piecemeal decision making or appellate litigation). As such, the Board will not issue a decision on these claims until the record has been fully developed. The matter is REMANDED for the following action: 1. Obtain the Veteran’s complete service personnel and treatment records, including from the Army National Guard between 1996 and 1999, and records relating to his claimed foreign service in Panama. If the records cannot be found or do not exist, such finding should be noted in the claims file. 2. If any additional periods of service/deployments are confirmed, attempt to corroborate the Veteran’s in-service stressors, including picking up bomb caplets in Southwest Asia between 1996 and 1999, and being shot at while on maneuvers in Panama during his service in the Marine Corps. Send the Veteran any required VCAA notice, and if more details are needed, contact the Veteran to request the information. 3. Thereafter, obtain an addendum opinion from the February 2017 VA psychiatric examiner, or another suitably qualified examiner. The examiner is asked to review the claims file, including prior medical records and evidence submitted by the Veteran’s expert witnesses. If the examiner believes that an additional examination is necessary, one should be scheduled. The examiner is asked to opine on the following: a) Is it at least as likely as not (50 percent probability or greater) that any diagnosed psychiatric disability had its onset during or is otherwise etiologically related to active duty service? b) Is it at least as likely as not (50 percent probability or greater) that any diagnosed psychiatric disability is due to or caused by a service-connected disability, to include service-connected headaches associated with TBI? c) Is it as least as likely as not (50 percent probability or greater) that any diagnosed psychiatric disability is aggravated beyond its natural progression by a service-connected disability? If aggravation is found, the examiner is asked to address the following issues to the extent feasible: 1) the baseline manifestations of the identified acquired psychiatric disorder, and 2) the increased manifestations which, in the examiner’s opinion, are proximately due to the Veteran’s service-connected disabilities. Aggravation is defined as a worsening beyond the natural progression of the disease. The examiner must note that an opinion to the effect that one disability “is not caused by or a result of” another disability does not answer the question of aggravation and will necessitate a further opinion. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). A complete rationale for all opinions must be provided. The examiner is reminded that the term “at least as likely as not,” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against. 4. Thereafter, readjudicate the issues on appeal. If any benefit sought remains denied, furnish the Veteran and   his representative with a supplemental statement of the case. After allowing an appropriate period for response, return the appeal to the Board for review. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Reed, Associate Counsel