Citation Nr: 20021882 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 17-67 548 DATE: March 27, 2020 ORDER An effective date of January 23, 2015 for the grant of service connection for right upper extremity radiculopathy is granted. An effective date earlier than June 27, 2016 for the grant of service connection for tension headaches is denied. An effective date earlier than June 27, 2016 for the grant of service connection for traumatic brain injury (TBI) is denied. An effective date earlier than June 27, 2016 for the grant of service connection for tinnitus is denied. An effective date earlier than June 27, 2016 for the grant of service connection for mixed anxiety depressive disorder is denied. An effective date earlier than June 27, 2016 for the grant of service connection for left upper extremity radiculopathy is denied. An effective date earlier than June 27, 2016 for the grant of service connection for cervical spine degenerative arthritis is denied. An effective date earlier than June 27, 2016 for the grant of service connection for thoracolumbar spine degenerative disc disease is denied. FINDINGS OF FACT 1. On December 31, 2015, VA received the Veteran’s claim for right upper extremity radiculopathy, within one year from his separation from service. The date following his separation from service was January 23, 2015. 2. On June 27, 2016, VA received the Veteran’s notice of an intent to file. The Veteran’s claim for service connection for tension headaches was received on June 28, 2016. 3. On June 27, 2016, VA received the Veteran’s notice of an intent to file. The Veteran’s claim for service connection for TBI was received on June 28, 2016. 4. On June 27, 2016, VA received the Veteran’s notice of an intent to file. The Veteran’s claim for service connection for tinnitus was received on June 28, 2016. 5. On June 27, 2016, VA received the Veteran’s notice of an intent to file. The Veteran’s claim for service connection for mixed anxiety depressive disorder was received on June 28, 2016. 6. On June 27, 2016, VA received the Veteran’s notice of an intent to file. The Veteran’s claim for service connection for left upper extremity radiculopathy was received on June 28, 2016. 7. On June 27, 2016, VA received the Veteran’s notice of an intent to file. The Veteran’s claim for service connection for cervical spine degenerative arthritis was received on June 28, 2016. 8. On June 27, 2016, VA received the Veteran’s notice of an intent to file. The Veteran’s claim for service connection for thoracolumbar spine degenerative disc disease was received on June 28, 2016. CONCLUSIONS OF LAW 1. The criteria for the establishment of an effective date of January 23, 2015 for the grant of service connection for right upper extremity radiculopathy have been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 2. The criteria for the establishment an effective date earlier than June 27, 2016 for the grant of service connection for tension headaches have not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 3. The criteria for the establishment an effective date earlier than June 27, 2016 for the grant of service connection for TBI have not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 4. The criteria for the establishment an effective date earlier than June 27, 2016 for the grant of service connection for tinnitus have not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 5. The criteria for the establishment an effective date earlier than June 27, 2016 for the grant of service connection for mixed anxiety depressive disorder have not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 6. The criteria for the establishment an effective date earlier than June 27, 2016 for the grant of service connection for left upper extremity radiculopathy have not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 7. The criteria for the establishment an effective date earlier than June 27, 2016 for the grant of service connection for cervical spine degenerative arthritis have not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 8. The criteria for the establishment an effective date earlier than June 27, 2016 for the grant of service connection for thoracolumbar spine degenerative disc disease have not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Air Force from October 2006 through June 2007; December 2008 through March 2009; August 2010 through November 2010; March 2012 through January 2013; and October 2014 through January 2015. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Effective June 27, 2016, the Veteran is in receipt of a combined 100 percent schedular evaluation of service-connected disorders. In February 2020, the Veteran was afforded a video conference hearing before the undersigned Veterans Law Judge (VLJ). During the hearing, the VLJ engaged in a colloquy with the Veteran toward substantiation of the claims. Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A hearing transcript is in the record. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Effective dates earlier than June 27, 2016 for the grant of service connection for tension headaches, TBI, tinnitus, mixed anxiety depressive disorder, bilateral upper extremity radiculopathy, cervical spine degenerative arthritis, and thoracolumbar spine degenerative disc disease. Generally, the effective date of an evaluation and award of compensation based on an original claim will be the date of receipt of the claim by VA or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. However, if the claim is received within one year of separation from service, the effective date will be the day following the date of separation from service. 38 C.F.R. § 3.400(b)(2). Effective March 24, 2015, a change in the regulation requires claims be filed on standard forms, eliminating constructive receipt of claims and informal claims. See 38 C.F.R. §§ 3.1(p), 3.150, 3.155, 3.160(a). Instead of informal claims, the new regulation provides that a claimant may request an application for benefits, upon receipt of which, the Secretary shall notify the claimant of the information necessary to complete the application form or form prescribed by the Secretary. 38 C.F.R. § 3.155(a). The regulation also allows a claimant to submit notice of an intent to file a claim, and VA may recognize the receipt date of the intent to file a claim as the date of claim so long as VA receives the successfully completed claim form within a year. 38 C.F.R. § 3.155(b). There are three ways in which a claimant may submit an intent to file a claim: (i) saved electronic application—when an application otherwise meeting the requirements of paragraph (b) is electronically initiated and saved in a claims-submission tool with a VA web-based electronic claims application system, (ii) written intent, signed and dated on the intent to file a claim form prescribed by the Secretary, and (iii) oral intent communicated to designated VA personnel, recorded in writing, and documented in the claimant’s records. Id. The Veteran submitted a claim of service connection for left shoulder injury with torn rotator cuff and traumatic arthritis; bilateral knee pain associated with injury; and right shoulder injury with torn rotator cuff, traumatic arthritis, with neurological damage, numbness, weakness, and pain in shoulder, arm, elbow, and wrist on December 31, 2015. In a June 2016 rating decision, the RO granted service connection for left shoulder impingement syndrome with shoulder strain; right shoulder impingement syndrome with rotator cuff tendonitis and glenohumeral joint osteoarthritis; right knee chondromalacia; left knee strain; right elbow medial epicondylitis with limitation of flexion; and right elbow medial epicondylitis with limitation of supination and pain with an effective date of January 23, 2015, the date following separation from service. The Veteran noted an intent to file on June 27, 2016 and then filed claims for service connection for ears ringing, anxiety, a neck condition, a back condition, TBI, a head injury, nerve damage, and depression on June 28, 2016. In an August 2016 rating decision, the RO granted service connection for mixed anxiety depressive disorder with an evaluation of 30 percent; cervical spine degenerative arthritis with an evaluation of 20 percent; right upper extremity radiculopathy with an evaluation of 40 percent; left upper extremity radiculopathy with an evaluation of 20 percent; thoracolumbar spine degenerative disc disease with an evaluation of 10 percent; tinnitus with an evaluation of 10 percent; TBI with an evaluation of 10 percent; and tension headaches with an evaluation of 0 percent; all effective June 27, 2016, the date of receipt of the Veteran’s intent to file. The Veteran requested reconsideration regarding the assigned effective dates in September 2016 and the RO issued an October 2016 rating decision denying entitlement to earlier effective dates for the grant of service connection for tension headaches, TBI, tinnitus, mixed anxiety depressive disorder, bilateral upper extremity radiculopathy, cervical spine degenerative arthritis, and thoracolumbar spine degenerative disc disease. In an October 2016 notice of disagreement (NOD), the Veteran appealed the effective dates assigned for the grant of service connection for the tension headaches, TBI, tinnitus, mixed anxiety depressive disorder, bilateral upper extremity radiculopathy, cervical spine degenerative arthritis, and thoracolumbar spine degenerative disc disease. During his February 2020 hearing, the Veteran testified in substance that he filed his original claim for service connection December 31, 2015 within one year from separation of service. He indicated that he had a VA examination, which pointed out all the additional symptoms for which service connection could be considered. He further indicated that he was not aware of what the form entailed nor how to fill it out properly. The Veteran indicated that when he was awarded his initial service-connected claims in June 2016, he was surprised to learn that it did not include all the disabilities that were found on the examination. The Veteran argued that VA can use a VA examination as an informal claim for effective date purposes. However, as noted above, effective March 24, 2015, a change in the regulation requires claims be filed on standard forms, eliminating constructive receipt of claims and informal claims. The Veteran further argued that his December 31, 2015 claim referenced neurological damage, which should have been recognized as claims including TBI and the nerve damage in his bilateral shoulders. However, regarding neurological damage, the Veteran’s December 31, 2015 claim stated, “right shoulder injury with torn rotator cuff, traumatic arthritis, with neurological damage, numbness, weakness, and pain in shoulder, arm, elbow, and wrist.” The Veteran’s December 31, 2015 claim did not reference any head injury nor any left shoulder neurological damage. Given the above facts, the Board will interpret the Veteran’s December 31, 2015 claim to include right upper extremity radiculopathy and will award an effective date of January 23, 2015, the date following separation from service. The claim is granted. However, June 27, 2016 is the date of receipt of the Veteran’s intent to file. No other exceptions to the general rule are applicable. The assignment of effective dates earlier than June 27, 2016 for the grant of service connection for tension headaches, TBI, tinnitus, mixed anxiety depressive disorder, left upper extremity radiculopathy, cervical spine degenerative arthritis, and thoracolumbar spine degenerative disc disease are not warranted. VA received the Veteran’s intent to file on June 27, 2016 and the specific claims for service connection on June 28, 2016. Although the Veteran contends that his December 31, 2015 claim referencing neurological damage should have been recognized as claims including TBI and nerve damage in his bilateral shoulders, the Veteran did not reference any head injury nor any left shoulder neurological damage. The Veteran’s military service record clearly indicates he had long and faithful service. However, the Board is constrained by the law and regulations governing the establishment of effective dates for the award of compensation. Effective dates are generally determined by the date of receipt of a claim or date entitlement arose, whichever is later. The Board is without authority to grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503, 7104; Harvey v. Brown, 6 Vet.App. 416 (1994). It has been observed that “no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress.” Smith (Edward F.) v. Derwinski, 2 Vet.App. 429 (1992) [citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)]. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. McLendon, Associate Counsel 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.