Citation Nr: 18160242 Decision Date: 12/26/18 Archive Date: 12/26/18 DOCKET NO. 15-37 115 DATE: December 26, 2018 ORDER An effective date of January 20, 2007, but no earlier, for the claim of service connection for migraine headaches is granted. An effective date of August 31, 2009, but no earlier, for the claim of service connection for posttraumatic stress disorder (PTSD) also claimed as anxiety, depression, and sleep disturbances is granted. An effective date of August 31, 2009, but no earlier, for the claim of service connection for traumatic brain injury (TBI) is granted. REMANDED Entitlement to a compensable evaluation for traumatic brain injury (TBI) is remanded. Entitlement to an increased evaluation for migraine headaches is remanded. Entitlement to an increased evaluation for posttraumatic stress disorder (PTSD) also claimed as anxiety, depression, and sleep disturbances is remanded. FINDINGS OF FACT 1. The Veteran served on active duty until January 19, 2007 and filed her claim of entitlement to service connection for migraine headaches on December 11, 2007. 2. The Veteran first filed her claim of entitlement to service connection for traumatic brain injury (TBI) and posttraumatic stress disorder PTSD (also claimed as anxiety, depression, and sleep disturbances) on August 31, 2009. At that time, her last period of active duty was January 19, 2007. 3. A February 2010 rating decision denied service connection for the conditions on appeal. The Veteran’s service records were not associated with the claims file at that point. The Veteran did not appeal the decision, nor was new and material evidence submitted within one year thereafter. 4. The Veteran sought reopening of the claims by claim filed August 1, 2013. The Veteran’s service treatment records were subsequently located and associated with the claims file. 5. An April 2014 rating decision granted service connection for the claims on appeal with an effective date of August 1, 2013, based in part on the service records that were associated with the record after August 1, 2013. CONCLUSIONS OF LAW 1. The criteria for an effective date of January 20, 2007, but no earlier, for the claim of service connection for migraine headaches have been met. 38 U.S.C. §§ 5110, 7105; 38 C.F.R. §§ 3.156, 3.400, 20.200, 20.201, 20.302, 20.1103. 2. The criteria for an effective date of August 31, 2009, but no earlier, for the claim of service connection for posttraumatic stress disorder (PTSD) also claimed as anxiety, depression, and sleep disturbances have been met. 38 U.S.C. §§ 5110, 7105; 38 C.F.R. §§ 3.156, 3.400, 20.200, 20.201, 20.302, 20.1103. 3. The criteria for an effective date of August 31, 2009, but no earlier, for the claim of service connection for traumatic brain injury (TBI) have been met. 38 U.S.C. §§ 5110, 7105; 38 C.F.R. §§ 3.156, 3.400, 20.200, 20.201, 20.302, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service in the United States Army from January 2004 through January 19, 2007, and from May 2012 through August 24, 2013, including service in both Iraq and Afghanistan. For her meritorious service, the Veteran was awarded (among numerous other decorations) the Purple Heart and the Combat Action Badge. An October 2018 Decision Review Officer rating decision granted an increase to the evaluation of the Veteran’s service-connected PTSD to 70 percent from August 25, 2013, but as such is short of a full grant of the benefit sought on appeal, the appeal is not mooted by the increase. This paragraph is solely for informational purposes, as the Veteran contends on appeal that service connection for additional conditions was erroneously denied. These conditions are not on appeal and Board cannot rule on this contention: a timely (within one year of the relevant rating decision) notice of disagreement (NOD) and a timely substantive appeal are prerequisites for the Board to have jurisdiction over a claim. As the NOD was not timely filed from the rating decision that disallowed the additional conditions, the Board lacks jurisdiction to address this specific request. However, as advised in the October 2018 correspondence, the Veteran may file a claim to reopen the previously denied claims by submitting a written request for such on the standardized VA form. Claims for Earlier Effective Dates Generally, the effective date for a grant of service connection following a final prior disallowance is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. However, if service department records related to a claimed in-service event, injury, or disease are subsequently associated with a claim that were not previously considered, VA will reconsider the claim. 38 C.F.R. § 3.156(c)(1). If there is an award made based all or in part on such records, the effective date of such award is to be the date entitlement arose, the date VA received the previously decided claim, or any other date as may be authorized by the provisions of VA law as applicable to the previously decided claim. 38 C.F.R. § 3.156(c)(3). Claims for direct and presumptive service connection filed within one year after separation from service are entitled to an effective date of the day following separation from active service or the date the disability arose, whichever is later. 38 C.F.R. § 3.400(b)(2) and (3). Claims filed after the one-year period after active service are entitled to the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2). 1. The criteria for an effective date of January 20, 2007, but no earlier, for the claim of service connection for migraine headaches have been met. The Veteran filed her claim for service connection for migraine headaches in December 2007. The claim was denied in a February 2010 rating decision. The Veteran did not file a notice of disagreement or submit new and material evidence during the year thereafter, and accordingly, the February 2010 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. The Veteran sought reopening of the claim in August 2013, and numerous service treatment records were associated with the record in September 2013. Such records had previously been considered unavailable, per a July 2008 VA memo. An April 2014 rating decision granted service connection for the claimed condition. Careful review of the rating decision shows the award was based in part on the service treatment records associated with the record after the prior final disallowance. As such, she is entitled to the date that would have applicable to the original claim, per 38 C.F.R. § 3.156(c)(3). The Veteran’s initial claim would have resulted in a January 20, 2007 effective date, as the migraine headache condition manifested during active service and the Veteran filed her claim within one year of her separation, in accordance with 38 C.F.R. § 3.400(b)(2) and (3). The Veteran’s entitlement to service connection for migraine headaches is accordingly granted an effective date of January 20, 2007. The criteria for an effective date of August 31, 2009, but no earlier, for the claims of service connection for (2) posttraumatic stress disorder (PTSD) also claimed as anxiety, depression, and sleep disturbances and (3) traumatic brain injury (TBI) have been met. The Veteran first filed her claim for service connection for the conditions of PTSD and TBI on August 31, 2009. The claims were denied in a February 2010 rating decision. The Veteran did not file a notice of disagreement or submit new and material evidence during the year thereafter, and accordingly, the February 2010 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. The Veteran sought reopening of the claims on August 1, 2013, and numerous service treatment records were associated with the record in September 2013. Such records had previously been considered unavailable, per a July 2008 VA memo. An April 2014 rating decision granted service connection for the claimed conditions. Careful review of the rating decision indicates the award was based in part on the service treatment records associated with the record after the prior final disallowance. As such, she is entitled to the date that would have applicable to the original claims, per 38 C.F.R. § 3.156(c)(3). The Veteran contends that she should have a January 20, 2007 effective date for these disabilities. However, her initial August 31, 2009 claim for these disabilities of TBI and PTSD was not filed within one year of any period of active duty, and thus she is not entitled to have this claim backdated to her prior separation from service, per 38 C.F.R. § 3.400(b)(2). The earliest possible date that could have been awarded her claim for these injuries that manifested in service was the date of her initial claim, August 31, 2009. 38 C.F.R. § 3.400(b)(2). As such, an effective date of August 31, 2009, but no earlier, for the claim of service connection for posttraumatic stress disorder (PTSD) also claimed as anxiety, depression, and sleep disturbances is granted. Also, an effective date of August 31, 2009 for the claim of service connection for traumatic brain injury (TBI) is granted. REASONS FOR REMAND The claims of entitlement to increased evaluations for the service-connected conditions of (4) TBI, (5) migraine headaches, and (6) PTSD also claimed as anxiety, depression, and sleep disturbances are remanded. With the above grant of earlier effective dates, there are now periods for which the Veteran has not been assigned any rating. Although the additional delay to the Veteran is regrettable, remand is required. The question of the appropriate evaluation of these conditions during these earlier periods has not been adjudicated below, and must be remanded to the Agency of Original Jurisdiction (AOJ) for an initial determination, to afford the Veteran the full opportunity for due process and the multilevel review that she is entitled to. The question of the evaluation warranted for subsequent periods is inextricably intertwined with the evaluations for the new periods granted. Henderson v. West, 12 Vet. App. 11, 20 (1998) (quoting Harris v. Derwinski, 1 Vet. App. 180, 183 (1991)) (Two claims are inextricably intertwined “where a decision on one issue would have a ‘significant impact’ upon another, and that impact in turn ‘could render any review by this Court of the decision [on the other claim] meaningless and a waste of judicial resources.’”) The matters are REMANDED for the following action: 1. Effectuate the grant of the earlier effective dates noted in this ORDER by performing any necessary development, and assigning evaluations to the disabilities. 2. Thereafter, re-adjudicate the issues on appeal, and return the case to the Board, if in order. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. C. King, Associate Counsel