Citation Nr: 19138299 Decision Date: 05/16/19 Archive Date: 05/16/19 DOCKET NO. 18-13 685 DATE: May 16, 2019 ORDER Entitlement to an effective date prior to November 6, 2014 for other specified trauma and stressor related disorder with traumatic brain injury (TBI) is denied. FINDING OF FACT A final September 2006 rating decision denied service connection a head injury, and the Veteran did not claim that he had a TBI again until he submitted a November 6, 2014 written statement. CONCLUSION OF LAW The criteria for an effective date of service connection prior to November 6, 2014 for other specified trauma and stressor related disorder with TBI have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2014, 2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1982 to July 1985 and from January 1987 to February 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Earlier Effective Date The effective date of an award of compensation based on direct service connection is the date following separation from service, if the claim is received within one year of that date. Otherwise, the effective date is the date VA receives the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a), (b)(1); 38 C.F.R. § §3.400(b)(2). The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). The effective date for a reopened service connection claim can be no earlier than the date the request to reopen the claim was filed. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(q)(1)(ii); see also Jones v. Shinseki, 619 F.3d 1368, 1371 (Fed. Cir. 2010) (noting for an award based on a claim reopened after a final adjudication, the effective date is typically the date that the request to reopen was filed). There is no provision in either statute or VA regulations that allows for an earlier effective date based on a reopened claim unless a clear and unmistakable error was committed in a prior decision, or unless the new and material evidence resulted from receipt of additional relevant service department records. 38 U.S.C. § 5110(i); 38 C.F.R. §§ 3.105, 3.156(c). 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) (2014); 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 for the relevant time period for this appeal. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). The Board notes a claim for compensation benefits is not limited to a specific diagnosis but must rather be considered a claim for any disability that is reasonably encompassed by several factors including: the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that VA obtains in support of the claim. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Yet, the claimant must provide some indication of the disability or its associated symptoms to give rise to a service connection claim, as notations in medical records standing alone are insufficient to give rise to a service connection claim. Id. at 7. The Veteran contends that he is entitled to an earlier effective date for service connection for “other specified trauma and stressor related disorder w/ TBI” which has been rated under the criteria for a psychiatric disability. See March 2016 Notice of Disagreement. The Veteran has argued that his claim for entitlement to service connection for headaches has encompassed a claim for a head injury or TBI, and that since his claim for headaches had been ongoing since 2005, he should be awarded an effective date in 2005 for his other specified trauma and stressor related disorder with TBI. For the following reasons, the Board disagrees. The Veteran’s initial claims for entitlement to service connection for a cracked skull and for headaches were denied separately in an August 2005 rating decision. The Veteran filed a timely notice of disagreement with the denial of service connection for headaches only and perfected an appeal to the Board. Subsequent to a January 2010 Board remand, service connection was awarded for headaches associated with sinusitis in an April 2012 rating decision effective March 1, 2005 at a noncompensable (0 percent) rating. In an April 2015 rating decision, the RO increased the rating for headaches (then associated with high blood pressure) to 30 percent effective November 6, 2014. With regard to the Veteran’s claim for a cracked skull or head injury, the August 2005 denial was confirmed and continued in a September 2006 rating decision. In these decisions, the RO determined that, while the Veteran had a head injury in service, there was no evidence that he had residuals from the injury. The Veteran did not file a notice of disagreement and no new and material evidence was added to the record in the year following the issuance of these decisions; therefore, they became final. See 38 U.S.C. § 7105(b)(1); 38 C.F.R. §§ 3.156(b), 20.1103. On November 6, 2014, the Veteran filed a claim seeking reconsideration of a July 2014 rating decision continuing a noncompensable disability rating for headaches. The Veteran submitted a VA evaluation dated that same month that reflected a physician’s assessment that the Veteran may have residuals of a TBI. The Veteran contended that his headaches may have been associated with a TBI rather than with high blood pressure. In an April 2015 rating decision, the RO granted entitlement to service connection for other specified trauma and stressor related disorder with concussion (previously claimed as head injury w/ cracked skull) at a 30 percent disability rating under the criteria for rating psychiatric disorders, and increased the Veteran’s rating for headaches to 30 percent, both effective November 6, 2014. In March 2016, the Veteran filed a notice of disagreement to the effective date for the issue “other specified trauma and stressor related disorder w/ TBI.” The Veteran indicated that he felt he was entitled to an effective date of August 17, 2005. (Continued on the next page)   Based on the record, the Board finds the AOJ properly treated the November 6, 2014 written statement as a request to reopen the previously denied claim for residuals of a head injury. There was no indication from the Veteran that he intended to reopen his claim for entitlement to service connection for a head injury or that he intended to file a claim for a psychiatric disorder, as his TBI is now rated, subsequent to the final September 2006 rating decision but prior to November 6, 2014. While the Veteran pursued his claim for headaches, he did not provide any evidence that he had residuals of a TBI until his November 6, 2014 filing. As such, an earlier effective date for other specified trauma and stressor related disorder w/ TBI prior to November 6, 2014 is not warranted. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Harrigan Smith The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.