Citation Nr: 1807006 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 12-35 137 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a right shoulder disorder. 2. Entitlement to an effective date prior to July 15, 2010, for the award of service connection for residuals, status post traumatic brain injury with concussive syndrome (TBI). 3. Entitlement to an effective date prior to July 15, 2010, for the award of service connection for temporomandibular dysfunction (TMD). REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Bosely, Counsel INTRODUCTION The Veteran had active service from March 1987 to February 1990. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from April 2010 and August 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this appeal in August 2017 to arrange for a Board hearing. Accordingly, the Veteran testified before the undersigned Veterans Law Judge in a videoconference hearing in October 2017. The record was held open for 30 day but no evidence was received. Additional evidence was received subsequent to the statement of the case (SOC) issued in December 2014. As the evidence is not pertinent to the claims being decided herein, a remand for RO consideration of the evidence is not necessary. See 38 C.F.R. § 20.1304(c). The issues of entitlement to an earlier effective date for TBI and TMD are decided herein. The claim of service connection for a right shoulder disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO. FINDINGS OF FACT There were no reasonably raised claims of service connection for TMJ or TBD prior to July 15, 2010. CONCLUSIONS OF LAW 1. The criteria for assignment of an effective date earlier than July 15, 2010, for the award of service connection for TBI have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400 (2017). 2. The criteria for assignment of an effective date earlier than July 15, 2010, for the award of service connection for TMD have not been met. 38 U.S.C. §§ 5107, 5110, 5109A (2012); 38 C.F.R. §§ 3.1, 3.105, 3.151, 3.155, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). The Veteran is seeking an earlier effective date for the award of service connection for her TBI and TMD. She contends that the effective dates should be the day following her separation from service. See Board Hr'g Tr. 8. She also maintains that there was clear and unmistakable error (CUE) in the assignment of the current effective dates. She contends that she is service-connected for headaches, and the causal injury for all three disabilities was the same in-service fall. Board Hr'g Tr. 7. She argues that the medical records from when she separated from service stated that she had a migraine, and it was CUE not to assign an effective date from the date she got out of the military. Board Hr'g Tr. 7-8. At present, the CUE issues are moot. The Veteran is alleging CUE in the August 2012 rating decision on appeal. That rating decision granted service connection and assigned effective dates for the TBI and TMD disabilities effective from July 15, 2010. She timely appealed that determination. As that appeal remains pending, it is nonfinal and nonbinding. Hence, it cannot be reversed or revised via a CUE motion, and the Board can take no further action on the CUE assertions at this time. See 38 C.F.R. § 3.105; Link v. West, 12 Vet. App. 39, 45 (1998) (where a rating decision is rendered nonfinal by the appellant's timely appeal to the Board, a claim of CUE does not exist, as a matter of law, as to that RO decision.). The generalized assertions of CUE are, therefore, dismissed. See, e.g., Simmons v. Principi, 17 Vet. App. 104, 111-15 (2003). The Board notes that the Board's present de novo review of the appeal is more favorable to the Veteran than the CUE standard. Although the Board is remanding the remaining issue for further development, remand is not necessary for the claims decided herein as there is no reasonable possibility that further assistance would substantiate this claims. See 38 C.F.R. § 3.159(d). A. Applicable Law The effective date of an award based on an original claim or a claim reopened after final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400; Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999). For reopened claims, the effective date will be the date of receipt of claim or date entitlement arose, whichever is later, except in limited situations provided in § 20.1304(b)(1) of this chapter. See 38 C.F.R. § 3.400(r). As applicable to this appeal, claims could be formal or informal. See 38 C.F.R. §§ 3.151, 3.155 (as in effect prior to March 25, 2015). B. Discussion In this case, the Board finds that an earlier effective date is not warranted. The RO granted service connection for the Veteran's TBI and TMD disabilities in an August 2012 rating decision effective from July 15, 2010. This effective date, according to the rating decision, was the date VA received a request to reopen a prior claim. The RO granted the claims based on service treatment records (STRs) showing a fall from a tower in May 1989 resulting in an injury to the head and lip. The RO also considered an April 2012 VA examination, which related the Veteran's TBI and TMD to the fall in service. In August 2012, the Veteran submitted a notice of disagreement (NOD) disagreeing with the effective date assigned. As a threshold matter, the Board notes that the RO's characterization of the July 15, 2010 claim as a request to reopen is inaccurate as there was no prior final denial of the claims. The RO cited a December 2011 rating decision, but the notification letter accompanying that rating decision informed the Veteran that a decision on these issues was being deferred pending additional evidence or information. There is no prior decision explicitly addressing these issues. Accordingly, there are no prior, final denials to consider, and the instant appeal for an earlier effective date is not a freestanding claim for an earlier effective date. Rudd v. Nicholson, 20 Vet. App. 296 (2006). Date of Claim The Board finds that the Veteran did not raise a formal or informal claim of service connection for either disability prior to July 15, 2010. She filed earlier claims, but, even upon a liberal reading, those claims did not reasonably raise the issue of service connection for TBI or TMD. She filed an original claim of service connection in February 1990. She identified two conditions for which she was seeking service connection: headache and a hip problem. Even upon a liberal interpretation, this claim did not expressly raise a claim of service connection for TBI or TMD. Importantly, her claim form did not refer to a TBI or TMD. Nor did it refer to the in-service head injury more generally. It simply stated "Headache - Jun. 87." Where there was no mention of the head injury, there is no way to understand that she intended to claim service connection for TBI or TMD from this claim. Thus, the February 1990 claim did not expressly raise the issue of TBI or TMD. The claims were also not implicitly raised by the claim of service connection for headaches. Headaches and a head injury are not synonymous. Nor did the developed medical evidence indicate a TBI or TMD. The STRs were of record at that time, and they showed treatment for the head injury and headaches. However, they did not attribute the Veteran's headaches to the in-service head injury. To the contrary, the STRs show that she indicated during treatment in October 1987 that her headaches existed prior to the April 1987 fall. At that time, she reported having had headaches "for as long as she remembers." In fact, at her service separation examination in January 1990, she was noted to have tension headaches. The examining physician wrote on the medical history questionnaire that she had "frequent headaches which I feel are secondary to stress" with normal diagnostic testing of the brain. Thus, even in the context of the information of record at that time, her original claim of service connection for headaches did not reasonably raise a claim of service connection for TBI or TMD. See Brokowski v. Shinseki, 23 Vet. App. 79, 88 (2009). Consequently, an effective date from February 1990 is not assignable. There is otherwise no claim, whether formal or informal, between the February 1990 claim and the July 2010 claim, which might indicate an intent to apply for this benefit. She filed other claims during that intervening time period, such as in August 1996 and August 2009, but those claims concerned orthopedic disabilities. At the Board hearing, the Veteran acknowledged that she did not file an earlier claim for TBI or TMD. See Board Hr'g Tr. 7. As such, the Board finds that there was no claim filed prior to July 15, 2010. Accordingly, that date is the earliest date recognizable as a formal or informal claim of service connection for TBI and TMD in this case. Entitlement Arose Service connection for TBI and TMD arose earlier than July 15, 2010. The April 2012 rating decision on appeal found that the disabilities resulted from a fall during service in April 1987. These two disabilities were diagnosed at an August 2011 VA examination. That VA examination also established a positive nexus relationship between the diagnoses and the fall during service. Accordingly, entitlement to service connection arose by that time. See DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011). It is not absolutely certain when the disabilities first manifested. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015). This is immaterial in the context of the current appeal, however. For purposes of this appeal, it is only material that the disabilities were diagnosed (and the nexus was established) prior to the July 2010 claim. At her Board hearing, the Veteran argued that since the injury occurred during service, the effective date should be from that time. Board Hr'g Tr. 6-7. While the injury occurred during service and although entitlement to service connection may have possibly arisen earlier than the July 2010 claim date, the effective date rules provide for the assignment of an effective date based on the later of the date entitlement arose or the date of claim. Hence, the effective date can be no earlier than the date of the July 15, 2010 claim. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400; DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011); Lalonde v. West, 12 Vet. App. 377, 382 (1999). Accordingly, the preponderance of the evidence is against the claims and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, earlier effective dates are not warranted. ORDER An effective date earlier than July 15, 2010, for the award of service connection for TBI is denied. An effective date earlier than July 15, 2010, for the award of service connection for TMD is denied. REMAND After conducting a preliminary review of the claim of service connection for a right shoulder disability, the Board finds that further evidentiary development is warranted. Specifically, a new VA opinion is needed to fully address the Veteran's secondary theory of entitlement. In an October 2009 statement, the Veteran wrote that she had nerve damage, making her unable to lift her arm to shoulder level with bulging discs in back and neck. In her April 2010 NOD, she wrote that her shoulder was being aggravated by her other disabilities. She made similar contentions in December 2011 and November 2012 statements. She previously underwent a VA examination in December 2015. The VA examiner concluded that the current diagnosis was less likely than not proximately due to or the result of a service-connected condition. The VA examiner reasoned that disc disease in the spine at L1-L5 is not expected to cause pathology in the right shoulder as they are not closely anatomically positioned and the shoulder is not expected to compensate for disease in the lumbar area. However, during treatment at VA in June 2009, she complained of right shoulder pain mostly from her neck posteriorly through the trapezius area, and it was noted that she used that side to hold her cane, which she leaned on extensively. In context, this June 2009 statement appears to indicate the primary care provider's belief that the use of the cane on that side caused or contributed to the complaints of right shoulder pain. The Veteran was issued a cane by VA in June 2008 due to her low back disability. The December 2015 VA examiner did not consider this theory. Nor did the VA examiner offer an opinion on whether a service-connected disability may have aggravated a right shoulder condition. On this point, the Veteran is currently service connected, as relevant, for thoracolumbar degenerative disc and joint disease, L1-L5; degenerative arthritis and intervertebral disc syndrome of the cervical spine; and radiculopathy of the right and left upper extremities associated with the cervical spine disability. Based on this record, a new VA opinion is needed to fully address the secondary theory of entitlement. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Additionally, any available records from the Social Security Administration (SSA) should be requested. Accordingly, this issue is REMANDED for the following actions: 1. Undertake any preliminary development needed, to include obtain records from SSA. 2. Then, arrange for the relevant information in the Veteran's claims folder to be returned to the examiner who conducted the December 2015 VA examination (or a suitable substitute if such examiner is unavailable), for the purpose of preparing an addendum opinion regarding the claimed right shoulder condition. (The need for an additional in-person examination should be determined by the examiner.) The examiner is asked to provide an expert medical opinion on the following question: (a) Is a right shoulder condition proximately due to, the result of, or caused by any other medical condition(s)? If so, please identify the other medical condition(s). (b) Has a right shoulder disorder been aggravated (made worse or increased in severity) by any other medical condition(s)? If so, please identify the primary medical condition(s). Also, please identify whether any increase in severity was due to the natural progress of the disease. In answering these questions, the examiner should consider whether the Veteran's use of a cane in the right hand, as indicated in a June 2009 VA medical record, could have caused or aggravated a right shoulder condition. In answering these questions, please articulate the reasons underpinning each conclusion. That is, (1) identify what facts and information, whether found in the record or outside the record, support the conclusion, and (2) explain how that evidence justifies the conclusion. 3. Finally, readjudicate the claim remaining on appeal. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case (SSOC). The Veteran and his representative should be afforded the appropriate time period to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter 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 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. §§ 5109B, 7112. ______________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs