Citation Nr: 21065295 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 12-35 137 DATE: October 25, 2021 ORDER 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), is denied. An effective date prior to July 15, 2010, for the award of service connection for temporomandibular dysfunction (TMD) is denied. FINDINGS OF FACT There were no reasonably raised claims of service connection for TMJ or TMD prior to July 15, 2010. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to July 15, 2010, for the award of service connection for TBI have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.151, 3.400; 38 C.F.R. §§ 3.1, 3.155 (2014). 2. The criteria for an effective date prior to July 15, 2010, for the award of service connection for TMD have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.151, 3.400; 38 C.F.R. §§ 3.1, 3.155 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1987 to February 1990. This matter is on appeal from April 2010 and August 2012 rating decisions. 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. In a February 2018 decision, the Board remanded the claim of service connection for a right shoulder disorder. The Board's February 2018 decision also denied the earlier effective date issues. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), which issued memorandum decision in July 2019 vacating the Board's decision as to the earlier effective date issues and remanding for readjudication. In November 2020, the Board again denied the appeal. The Veteran appealed to the Court, which issued a memorandum decision in March 2021, setting aside and remanding the Board's November 2020 decision for further adjudication. (The Court stated that the Veteran had appealed, and it was setting aside, a March 2020 Board decision, but no Board decision was issued in March 2020. Based on context, it is clear the Court intended to vacate the November 2020 Board decision.) In a January 2021 rating decision, the RO granted service connection for a right shoulder disability. As that was a complete grant of the benefit sought, the appeal of that issue is resolved, and the matter is no longer before the Board. 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). Effective Date 1. 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), 2. An effective date prior to July 15, 2010, for the award of service connection for temporomandibular dysfunction (TMD) The Veteran is seeking an earlier effective date for the award of service connection for her TBI and TMD. She contends that the effective date 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 remain 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 TBI and TMD 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 present de novo review of the appeal is more favorable to the Veteran than the CUE standard. 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); 38C.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). VA must adjudicate all claims "reasonably raised by a liberal reading" of all evidence and pleadings in a claims file, although a claim must be reasonably raised by the evidence. See Brokowski v. Shinseki, 23 Vet. App. 79, 85, 88 (2009). A claimant must identify the benefit sought by describing the nature of the claimed disability. See Ingram v. Nicholson, 21 Vet. App. 232, 256 (2007). This is accomplished by reference "to a body part or system that is disabled or by describing symptoms of the disability." See DeLisio v. Shinseki, 25 Vet. App. 45, 53 (2011); Brokowski, 23 Vet. App. at 86-87. Also, if a claim is submitted that does not identifying the nature of the claimed disability, but is submitted with medical records "clearly discuss[ing] disabilities or specific symptoms other than those listed on the application, it may be inferred" that the claimant intended to claim disorders suggested by medical records. See Brokowski, 23 Vet. App. at 88 [emphasis in original]. A claimant's intent in filing a claim is paramount to construing the breadth of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). VA "has no duty to read the mind of a claimant." See id. Her later actions are not evidence of her earlier intent, which "has no support in law or logic." Myers v. Principi, 16 Vet. App. 228, 233 (2002). While a pro se claimant's claim must identify the benefit sought, the identification need not be explicit in the claim-stating documents, but can also be found indirectly through examination of evidence to which those documents themselves point when sympathetically read. Shea v. Wilkie, 926 F.3d 1362, 1369 (Fed. Cir. 2019). An informal claim may be raised by language that points to records mentioning a condition in a way that, sympathetically read, is properly understood as seeking benefits for such a condition. Id. at 1370. Where a claimant's filings refer to specific medical records, and those records contain a reasonably ascertainable diagnosis of a disability, the claimant has raised an informal claim for that disability under § 3.155(a). Id. However, a veteran's legally sufficient claim must provide information, even at a high level of generality, to identify the sickness, disease, or injury for which benefits are sought. Sellers v. Wilkie, 965 F.3d 1328, 1337 (Fed. Cir. 2020). B. Discussion After careful consideration of the Court's March 2021 memorandum decision, the Board again concludes that an earlier effective date is not warranted. To the extent feasible, the Board below will also reinstate its prior determination by replicating the same language in its prior decision. This is nonprejudicial to the Veteran because the Board will directly address the concerns raised in the Court's memorandum decision. See Castellano v. Shinseki, 25 Vet. App. 146 (2011); see also Mathews v. McDonald, 28 Vet. App. 309, 316 (2016). To reiterate, 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 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. Stated differently, the Veteran's claim did not identify residuals of the head injury with a "high level of generality." See Sellers, 965 F.3d at 1337. To the contrary, her claim identified headaches, which is a very narrow level of specificity. By way of illustration, if she had identified the head injury in her application, it might be reasonable to infer that she wanted to claim service connection for headaches. The inverse is not true. She claimed headaches, but it is not reasonable based on the evidence of record at that time to infer that she wanted to generalize her claim to include all residuals of the head injury not just headaches. Moreover, as the Board previously found, headaches are not synonymous for a head injury. Hence, the claims were also not implicitly raised by the claim of service connection for headaches. Nor did the developed medical evidence indicate a TBI or TMD. See Shea, 926 F.3d at 1369. The STRs showed treatment for the head injury and headaches. However, the STRs did not attribute the Veteran's headaches to the in-service head injury. There were no specific STRs relating the headaches to the head injury either temporally, medically, or contextually. In fact, the STRs referred to headaches predating the head injury. She indicated during treatment in service 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." The assessment was "Headache . . . x years." In May 1989 she was referred for an evaluation of recurrent headaches, but was "[s]upposedly not told what is causing her headaches" (emphasis in original). At a December 1989 consultation, it was noted that she had frequent and severe headaches, but also a head injury when she came into service. The assessment was recurrent headaches probably secondary to tension/musculoskeletal, but due to the head injury, a CT scan was ordered. At her service separation examination, it was noted that a January 1990 CT scan of the brain was normal. The examining physician wrote on the medical history questionnaire that she had "frequent headaches which I feel are secondary to stress." It also noted she had a head injury, but, it did not reference a headache condition associated with the fall. These STRs show that neither she nor her treatment providers associated her headaches with the head injury by that time. With regard to TMD, the STRs showed treatment for a bruised TMD joint from the fall. But, a TMD diagnosis was not reasonably identified. She underwent x-rays in April 1987 due to the history of trauma to the chin from the fall, but the results were "WNL" (an acronym commonly understood to mean "within normal limits"). In January 1988, she had complaints in her left lower jaw when chewing hard foot and a third molar sensitive to cold or heat. The assessment was probable carious left lower third molar. She was also seen in January 1988 for complaints of runny, stuffy nose and left jaw ached, but the assessment was rule out sinusitis. X-rays conducted in response were "negative." At her service retirement examination, she noted her fall from the tower with "minor injury to head and lip." The examiner noted no TMD joint condition associated with the fall. Collectively, these STRs indicate no extant medical conditions related to the head injury. There were no other medical records associated with the claim denied in the March 1990 rating decision. The Court's March 2021 memorandum decision states that "the record appears to demonstrate that the [V]eteran was referring to a specific incident that caused her headaches, albeit with an incorrect date, rather than a specific date on which she received treatment for headaches." Unfortunately, the Court did not explain why this appeared in its view to be the case. The Court cited no evidence or earlier statements indicating what demonstrated such an intent. In fact, the Board finds no indication that she was attempting to refer to a specific incident that caused her headaches. She wrote "Headache Jun. 87." She provided no context, no explanation, and no details. She did not identify any event or provide a specific date in June 1987. Based on her statement alone, it would appear to any reasonable observer quite clearly that she was referring to headaches that occurred in June 1987. The Court went on to state that she must have identified an incorrect date where she wrote "Jun. 1987." The Court clarified in a footnote that "the date she is referring to must be incorrect because there is no evidence related to her headaches or fall from June 1987." This only follows if the Court were demanding contemporaneous, documented evidence of headaches in the STRs. Hence, it is not certain that she identified an incorrect date. To the contrary, it appears quite plausible that she first started having headaches in June 1987, but did not seek treatment for them at that time. The Court also found that "the Board fails to explain why the appellant would seek a December 1987 effective date for service connection when that date falls in the middle of the 3-year period during which she was undergoing treatment in service and in October 1987 [when she] claimed, 'she has had headaches for as long as she can remember.'" The Court did not indicate why the Board would have needed to explain this or why this might be consequential. To this end, based on the claim as submitted, the Board can only speculate as to why she would identify the middle of the 3-year period she was undergoing treatment in service. Perhaps that date had some historical significance to her at the time of the claim. Perhaps she misremembered the date. Unfortunately, the Court's questions raise even further and equally unanswerable questions. For example, if she had actually been seeking service connection for what she currently feels was the consequential event--the head injury in April 1987--why would she identify a month and year other than the one when the head injury occurred? Also, why did she not simply identify the fall itself instead of the headaches? The hypothetical question raised by the Court would require speculation on the Board's part. Reasonable doubt cannot be resolved on the basis of speculation. See 38 C.F.R. § 3.102. What remains clear and nonspeculative is that she identified the scope of her claim to include headaches that occurred in June 1987. The Court also found significant that the June 1987 date occurred shortly before she reported in October 1987 that "she has had headaches for as long as she can remember." The phrase "as long as she remembers" is highly imprecise. Perhaps to a young woman in October 1987, the timeframe between June 1987 and October 1987 was "as long as she remembers." Ultimately, however, the Board cannot attempt to read her mind as to what she was thinking in October 1987 when she made that statement. Certainly, it would not appear that the three-month difference from April 1987 to June 1987 would be expansive enough to more clearly pinpoint her claim to an April 1987 event rather than June 1987. Under normal circumstances, the phrase "as long as she can remember" would be quite expansive and encompass a number of years, perhaps to early childhood, and not an additional three month timeframe. In fact, as the Board pointed out herein above, her October 1987 statement tends to indicate a much earlier onset of headaches. That was precisely the provider's assessment at that time. The provider assessed headaches for "years," which is much greater than the three-month time difference between April and June 1987. Thus, it is not clear why the phrase "as long as she can remember" reasonably indicates that she meant April 1987 rather than June 1987, as implied by the Court. In short, the February 1990 claim, even when viewed in context of the STRs, which she referenced in the claim, did not raise the issue of TBI or TMD to the high level of generality required. See Sellers, 965 F.3d at 1337; Shea, 926 F.3d at 1369. Simply stated, it is not reasonable to expect VA to have read her mind to understand from the statement "Headache Jun. 87" that she actually meant "head injury" and "April 1987." While the Veteran may now feel that she was originally seeking service connection from the date of the head injury, the Board cannot look to her current recollection to inform its decision as to the scope of the claim at that earlier time. 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 the 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 had already arisen by the time of her July 15, 2010 claim. 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 had arisen by that time. See DeLisio, 25 Vet. App.at 56. 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. (Continued on the next page) 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, 25 Vet. App. at 56; Lalonde v. West, 12 Vet. App. 377, 382 (1999). To conclude, 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. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Bosely, 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.