Citation Nr: 20021433 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 19-24 437 DATE: March 25, 2020 ORDER Entitlement to an increased rating for posttraumatic encephalopathy, residual shrapnel wound (hereinafter referred to as residuals of traumatic brain injury (TBI)), evaluated at a maximum 100 percent disabling, is denied. Entitlement to an effective date prior to July 12, 2015 for the award of service connection for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to a higher level of special monthly compensation (SMC) based on the need for regular and aid and attendance for residuals of TBI at the rate specified under 38 U.S.C. § 1114(t) is remanded. Entitlement to service connection for low back disorder, to include as secondary to service-connected degenerative arthritis of the cervical spine, is remanded. Entitlement to an initial rating in excess of 30 percent for PTSD is remanded. Entitlement to a rating in excess of 20 percent for degenerative arthritis of the cervical spine is remanded. FINDINGS OF FACT 1. Throughout the course of the appeal, the Veteran’s residuals of TBI have been adequately contemplated by the currently assigned maximum 100 percent evaluation under 38 C.F.R. § 4.124a, Diagnostic Code 8045; separate compensable ratings have been assigned for all separately diagnosed disabilities. 2. The Veteran did not file a formal or informal claim for service connection for an acquired psychiatric disorder prior to July 12, 2015. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased rating for the Veteran’s service-connected residuals of TBI, evaluated at a maximum 100 percent disabling, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, including §§ 4.7, 4.124a, Diagnostic Code 8045. 2. The criteria for an effective date prior to July 12, 2015, for the grant of service connection for PTSD have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1966 to December 1967. The issue of entitlement to service connection for headaches was also on appeal. However, this issue was granted in a July 2019 rating decision; representing a full grant of the benefit sought. In that same decision, the Regional Office (RO) increased the PTSD rating to 30 percent, effective the date of claim for increase, July 12, 2015. However, where there is no clearly expressed intent to limit the appeal to entitlement to a specified disability rating, the RO and Board are required to consider entitlement to all available ratings for that condition. AB v. Brown, 6 Vet. App. 35, 39 (1993). The issue therefore remains in appellate status and has been characterized as set forth above. Entitlement to an increased rating for posttraumatic encephalopathy, residual shrapnel wound (now claimed as residuals of TBI), evaluated at a maximum 100 percent disabling. The Veteran is seeking an increased disability evaluation for his service connected posttraumatic encephalopathy, residual shrapnel wound, hereinafter referred to as TBI, which is currently evaluated as 100 percent disabling under Diagnostic Code 8405. Under this code, there are three main areas of dysfunction listed that may result from TBI and effect an individual's functioning: cognitive (which is common in varying degrees after TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a, Diagnostic Code 8045. Cognitive impairment is to be evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Id. Emotional/behavioral dysfunction is to be evaluated under § 4.130 when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, emotional or behavioral symptoms are evaluated under the criteria in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Id. Physical (including neurological) dysfunction is to be evaluated under an appropriate diagnostic code. Id. However, Note (1) to Diagnostic Code 8045 acknowledges that "[t]here may be an overlap of manifestations of conditions evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified"' with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, do not assign more than one evaluation based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, assign a separate evaluation for each condition." Id. A 100 percent evaluation is assigned if “total” is the level of evaluation for one or more facets. If no facet is evaluated as “total,” the overall percentage evaluation is assigned based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, a 70 percent evaluation is assigned if 3 is the highest level of evaluation for any facet. The September 2017 VA examination observed the following symptoms: mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment; moderately impaired judgement; moderately severely impaired visual spatial orientation; three or more subjective symptoms that moderately interfere with work; one or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction or both, but do not preclude them; communication was only occasionally impaired. Residuals were noted to be hearing loss, tinnitus, visual impairment, erectile dysfunction, headaches, dizziness, vertigo and mental disorder. At the outset, the Board notes that the Veteran is separately service connected for, hearing loss, tinnitus, headaches, PTSD and erectile dysfunction. Each condition has been separately diagnosed and rated, and symptoms of those disabilities may not be further considered in the Veteran’s TBI evaluation in order to avoid pyramiding. The Veteran also already receives special monthly compensation for loss of use of a creative organ. Again, the remaining symptoms are contemplated in the current maximum 100 percent rating. This rating is the highest rating assignable under the rating criteria for TBI. See 38 C.F.R. § 4.124 (a), Diagnostic Code 8045; Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). In conclusion, the Board finds that entitlement to an increased rating for posttraumatic encephalopathy, residual shrapnel wound (now claimed as residuals of TBI), evaluated at a maximum 100 percent disabling must be denied. The evidence in this case is not so evenly balanced so as 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. Entitlement to an effective date prior to July 12, 2015 for the award of service connection for PTSD The Veteran contends that he is entitled to an earlier effective date for the award of service connection PTSD. He has stated that since he was treated for PTSD prior to this date, he should be awarded an earlier effective date. The statutory and regulatory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. As a general proposition, the law regarding the effective date of an award of service connection benefits is well-understood. The effective date of an award of benefits based on an original claim cannot be earlier than the date that the VA received the claim. See 38 U.S.C. § 5110(a); Adams v. Shinseki, 568 F.3d 956, 960(Fed. Cir. 2009). The effective date of an evaluation and an award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date the claim was received or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. The provisions of 38 C.F.R. § 3.400(b)(2) allow for assignment of an effective date the day following separation from active service if a claim is received within 1 year after separation from service. Effective March 24, 2015, VA amended its regulations to require all claims be filed on a standard form. The amendments implement the concept of an intent to file a claim for benefits, which operates similarly to the informal claim process, but requires that the submission establishing a claimant’s effective date of benefits must be received in one of three specified formats. The amendments also eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen under 38 C.F.R. § 3.157. See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.1 (p), 3.151, 3.155). As in the instant case, the amendments apply only to claims filed on or after March 24, 2015. In effect prior to March 24, 2015, any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155(a). The basic facts in this case are not in dispute. VA received the Veteran’s claim for service connection for PTSD on July 12, 2015. There is no document of record that can be construed as an informal or formal claim for service connection for an acquired psychiatric disorder prior to the receipt of the July 12, 2015 claim. In fact, the Veteran has not asserted that he filed a claim prior to this date. Under the prior provisions of 38 C.F.R. § 3.157(b)(1), the date of outpatient or hospital examination or the date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. The Court, however, has held that this regulation only applies to a defined group of claims. See Sears v. Principi, 16 Vet. App. 244, 249 (2002) (section 3.157 applies to a defined group of claims, i.e., as to disability compensation, those claims for which a report of a medical examination or hospitalization is accepted as an informal claim for an increase of a service-connected rating where service connection has already been established). VA medical records cannot be accepted as informal claims for disabilities where service connection has not been established. The mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a condition. See Brannon v. West, 12 Vet. App. 32, 35 (1998); see also Lalonde v. West, 12 Vet. App. 377, 382 (1999) (where appellant had not been granted service connection, mere receipt of medical records could not be construed as informal claim). In sum, although the Veteran received treatment for PTSD prior to his July 2015 claim, these records cannot reasonably be construed as a claim for service connection. After reviewing the evidence, the Board finds that the AOJ did not receive an application for compensation benefits prior to the receipt of the Veteran’s claim in July 2015. The effective date of an award of service connection is assigned not based on the date the disability appeared or the date of the earliest medical evidence demonstrating the existence of such disability and a causal connection to service or a service-connected disability; rather, the effective date is assigned based on consideration of the date that the application upon which service connection was eventually awarded was received by VA. See LaLonde v. West, 12 Vet. App. 377, 382-383 (1999). Importantly, the pertinent regulations specifically state that the effective date should be the date of claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. In the instant case, based on these regulations, the effective date has been appropriately assigned as the date of claim for service connection. While sympathetic to the Veteran’s belief that an earlier effective date is warranted, for the reasons outlined above, the Board is precluded by statute from assigning an effective date prior to July 12, 2015 for the grant of service connection for PTSD. Accordingly, the preponderance of the evidence is against the claim for an effective date prior to July 12, 2015 for the award of service connection for such disability. As such, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b). REASONS FOR REMAND Entitlement to a higher level of SMC based on the need for regular and aid and attendance for residuals of TBI at the rate specified under 38 U.S.C. § 1114(t) is remanded. The Veteran is in receipt of SMC based on the need of aid of attendance. However, he seeks SMC at a higher level under 38 U.S.C. § 1114(t). Under this code, SMC is payable where a veteran, as the result of service-connected disability, is in need of regular aid and attendance for the residuals of TBI, is not eligible for compensation under subsection (r)(2), and in the absence of such regular aid and attendance would require hospitalization, nursing home care, or other residential institutional care, the veteran shall be paid, in addition to any other compensation under this section, a monthly aid and attendance allowance equal to the rate described in subsection (r)(2). An allowance authorized under this subsection shall be paid in lieu of any allowance authorized by subsection (r)(1). Essentially, this type of SMC is warranted for veterans who need regular aid and attendance for the service-connected residuals of traumatic brain injury (TBI), but are not eligible for a higher level of aid and attendance, and would require hospitalization, nursing home care, or other residential institutional care in the absence of regular aid and attendance. See also VA Fast Letter 11-35 (Dec. 5, 2011). Here, a November 2017 VA opinion indicated that it would be speculative to determine the level of care the Veteran required based on the TBI examination, and recommended that this information be obtained on a Aid and Attendance examination. However, an Aid Attendance examination was done the prior month, but the examination did not address whether the Veteran required aid and attendance solely due to his service-connected TBI. In support of his claim, the Veteran submitted a November 2019 private opinion from a licensed psychologist that states that the Veteran's need for aid and attendance due solely to service-connected residuals of TBI reaches the higher level of aid and attendance such that absent such higher level of care that due solely to TBI residuals the Veteran would require some form of institutionalization, i.e., hospitalization, nursing home care, or other residential institutional care. However, neither the private opinion nor the record as a whole shows whether such higher level of in-home care is provided by either a licensed professional or a person, including a family member and specifically the Veteran's wife, who provides such care under regular supervision of a licensed health-care professional who consults with the Veteran's wife at least monthly to monitor any prescribed regimen, to include either in-person consultation or telephonic communication. Accordingly, clarification of these matters is in order. Entitlement to service connection for low back disorder, to include as secondary to service-connected degenerative arthritis of the cervical spine. is remanded. The Veteran is seeking service connection for low back disorder. He has asserted that it is due to a May 1967 inservice injury where he sustained shrapnel wounds to the head and left arm as well as superficial wounds to the legs and buttocks. In the alternative, he has asserted that it is secondary to his service-connected disabilities. He was afforded a VA examination in February 2016. The examiner found that the condition was less likely than not proximately due to or the result of the Veteran’s service-connected condition. However, the rationale provided appeared to primarily address why the Veteran’s back disorder was not directly related to service as opposed to why it was not secondary to his service-connected disabilities. Further, importantly, there was no opinion with respect to aggravation. Thus, this opinion is inadequate and in turn, the Board finds that a VA examination with etiological opinion is necessary. Entitlement to an initial rating in excess of 30 percent for PTSD is remanded. The Veteran was last afforded a VA examination to assess the severity of his PTSD in January 2016, over four years ago. However, in subsequent statements, the Veteran has asserted that his symptoms have increased in severity or were not accurately reflected at the time of the examination. As such, the Board finds that the Veteran should be afforded a new examination to address the severity of the Veteran’s PTSD. Entitlement to a rating in excess of 20 percent for degenerative arthritis of the cervical spine is remanded. The Veteran was last afforded a VA examination to address the severity of his cervical spine disability in February 2016, over four years ago. Unfortunately, the examination does not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). In this regard, the examination does not contain passive range of motion measurements. Further, the examination also does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The examiner did not attempt to elicit relevant information regarding the description of the Veteran’s flare-ups and any additional functional loss suffered during flare-ups. As such, the Veteran should be afforded another VA examination to address the severity of his cervical spine disability. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination with respect to his need for the regular aid and attendance of another due solely to his service-connected residuals of TBI. The examiner is requested to address the following matters: Is the Veteran’s need for aid and attendance due solely to his service-connected TBI residuals, and irrespective of any other service-connected disabilities, such that he requires a higher level of care? The examiner is advised that the term “higher level of care” means that in the absence of such higher level of care the Veteran would require some form of institutionalization, i.e., hospitalization, nursing home care, or other residential institutional care. Is the Veteran (a) receiving a “higher level of care” by an unlicensed person, including a family member such as his wife, performing a regimen of personal health-care services; and (b) receiving a regimen of such services which is or are prescribed by a health-care professional; and (c) does the person performing a regimen of personal health-care services consult on at least a monthly basis with the prescribing health-care professional, either by in-person consultation or by telephonic communication. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any low back disorder. The examiner must opine whether it at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, (3) was noted during service with continuity of the same symptomatology since service, or (4) related to an in-service injury, event, or disease, including the May 1967 injury. The examiner must also opine whether it is at least as likely as not (1) proximately due to service-connected disability, or (2) aggravated by service-connected disability. 3. Schedule the Veteran for an examination to determine the current nature and severity of his PTSD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. If possible, the examiner should determine which symptoms are attributable to the Veteran’s PTSD as opposed to his TBI. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his PTSD alone. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected degenerative arthritis of the cervical spine. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.N. Moats 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.