Citation Nr: 21065747 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 20-20 740 DATE: October 27, 2021 ORDER Service connection for a lower back disability is granted. Service connection for right lower extremity radiculopathy is granted. Service connection for left lower extremity radiculopathy is granted. Service connection for right upper extremity radiculopathy is granted. Service connection for left upper extremity radiculopathy is granted. A 50 percent rating for tension headaches is granted. An effective date prior to June 19, 2018, for the grant of service connection for residuals of a traumatic brain injury (TBI) is denied. An effective date prior to June 19, 2018, for the grant of service connection for acute intermittent tension headaches is denied. An effective date prior to June 19, 2018, for the grant of service connection for Dependents' Educational Assistance (DEA) is denied. FINDINGS OF FACT 1. Resolving any reasonable doubt in favor of the Veteran, the Veteran's lumbar spine disability is at least as likely as not related to his active duty service. 2. Resolving any reasonable doubt in favor of the Veteran, his bilateral upper and lower extremity radiculopathy is at least as likely as not caused by his lumbar spine disability. 3. Resolving any reasonable doubt in favor of the Veteran, his headaches are more closely approximated to frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 4. No communication was received between issuance of the final May 1978 decision and receipt of the June 19, 2018, petition to reopen the previously denied claim that may reasonably be construed as a formal or informal claim for entitlement to service connection for residuals of a TBI. 5. Prior to the Veteran's June 19, 2018, claim, there was no pending formal claims, informal claims, or a written intent to file a claim for service connection for headaches. 6. Prior to June 19, 2018, the Veteran did not have a permanent and total service connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disability are met. 38 U.S.C. §§ 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.3.09, 3.310. 2. The criteria for service connection for bilateral upper and lower extremity radiculopathy are met. 38 U.S.C. §§ 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.3.09, 3.310. 3. The criteria for a 50 percent rating for tension headaches are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.20, 4.124a, Diagnostic Code (DC) 8100. 4. The criteria for an effective date prior to June 19, 2018, for the grant of service connection for residual of a TBI, headaches, and DEA are not met. 38 U.S.C. § 3501, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400, 3.807. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1970 to June 1970. Service Connection Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. Lower Back The Veteran has sought service connection for a lower back disability. At the outset the Board notes that no VA examination regarding the Veteran's lower back has been conducted. Seeking to obtain negative evidence against the Veteran is prohibited by VA law. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). In August 2020, the Veteran submitted a private medical report from a Board certified orthopedic surgeon. See curriculum vitae of Dr. D.M. The physician stated he had reviewed the Veteran's file, including his service treatment records, and interviewed the Veteran. The physician noted the Veteran's diagnosis of lumbar spine degenerative arthritis and provided a detailed analysis of the etiology of the Veteran's condition with supporting literature. The physician opined that the Veteran's lumbar spine condition is at least as likely than not related to his active duty service. The physician's opinion was based on the Veteran's provided history of several injuries to his back while in-service along with the use of his back during the normal course of his service. While there are no service treatment records which indicate the Veteran reported injury to his back during service, there is no evidence which contradicts the Veteran's report of his in-service use and injury. As such, the Board finds that the Veteran is credible in his relation of his in-service injury and that service connection for his lumbar spine disability is warranted. Resolving all reasonable doubt in favor of the Veteran, service connection for a lumbar spine disability is granted. Bilateral Upper and Lower Extremity Radiculopathy The August 2020 private medical opinion also stated that the Veteran's diagnosis of bilateral upper and lower extremity radiculopathy was at least as likely as not caused by the Veteran's lumbar spine disability. Secondary service connection requires a finding that that the current disability was either caused by or aggravated by a service-connected disability. In the current matter, such a connection is supported by the evidence of record. The Veteran has been service connected for his lumbar spine disability, as stated above, and the August 2020 examiner stated that the Veteran's radiculopathy was linked to his lumbar spine condition. Again, the Board notes that no VA examination of the Veteran's radiculopathy has been conducted and that seeking negative evidence is prohibited by law. See Mariano,17 Vet. App at 312. As such, the Board affords the Veteran the benefit of reasonable doubt and finds that service connection for bilateral upper and lower extremity radiculopathy is warranted. Resolving all reasonable doubt in favor of the Veteran, service connection for bilateral upper and lower extremity radiculopathy is granted. Increased Rating Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Tension Headaches The Veteran's headaches are rated under DC 8100. Under DC 8100, migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a 50 percent rating. See 38 C.F.R. § 4.124a, DC 8100. The 50 percent rating is the maximum allowed under VA law and regulations for this Code. The Veteran's VA examinations in 2018 and 2019 found that he reported his headaches occur every day. He was found to have symptoms of nausea, vomiting, and sensitivity to light and sound. In a private medical opinion, the Veteran reported that his headaches caused him to go into his bedroom, turn the lights off, and lay down for several hours upon each occasion. See March 2020 private examination report. The private examiner noted that the Veteran reported his headaches occurred several times per week, included prostrating attacks, and were productive of severe economic inadaptability. The examiner also noted that the Veteran's headaches had been present since the Veteran's service connected TBI. Based on the foregoing, the Board finds that the Veteran's headaches more nearly approximates very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. See Jones v. Shinseki, 26 Vet. App. 56 (2012). Thus, a 50 percent rating is granted. The Board notes that the Veteran is now in receipt of the maximum rating allowable during the appeal period, under DC 8100, and finds no other relevant code sections under which to evaluate the Veteran's headaches within the Schedule for Rating Disabilities. This is true at all times during the appeal period, and therefore the Board need not consider staged ratings. Earlier Effective Date The Veteran has sought earlier effective dates for the grant of service connection for his TBI, tension headaches, an DEA. A claim is 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); 3.155. The regulation which governs informal claims, 38 C.F.R. § 3.155, provides that any communication or action, indicating an intent to apply for one or more benefits under the laws administered by [VA], from a claimant...may be considered an informal claim. Such informal claim must identify the benefit sought. When a claim has been filed that meets the requirements of 38 C.F.R. § 3.151 or 3.152, an informal request for increase or reopening will be accepted as a claim. The effective date of an award of disability compensation based on new and material evidence under 38 C.F.R. § 3.156 (other than service department records) received after a final disallowance shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(q)(2). Similarly, the effective date of an award of disability compensation based on a reopened claim under the provisions of 38 C.F.R. §§ 3.109, 3.156, 3.157, and 3.160(e) shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(r). The statutory framework does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim. Sears v. Principi, 16 Vet. App. 244 (2002). In order for the Veteran to be awarded an effective date based on an earlier claim, the Veteran has to show clear unmistakable error (CUE) in the prior denial of the claim. Flash v. Brown, 8 Vet. App. 332 (1995). For awards of secondary service connection, the effective date can be no earlier than the date of the claim for service connection on a secondary basis. See Ellington v. Nicholson, 22 Vet. App. 141, 145 (2007). Under 38 C.F.R. § 3.400, it follows that an effective date for secondary service connection cannot be earlier than the effective date warranted for the foundational disorder upon which service connection was granted. TBI The Veteran has sought an earlier effective date for his grant of service connection for TBI. The Veteran, in an August 2020 submission by his attorney, has stated that his prior claims filed in both 1970 and 1977 represent open claims and that his date of grant of service connection for TBI should date back to either one of these claims. See August 2020 submission. The Veteran's service treatment records (STRs) establish that the Veteran sustained a skull fracture while in service. See April 1970 STRs. The record shows that the Veteran filed for service connection for a fractured skull in July 1970. A November 1970 rating decision originally denied service connection for a skull fracture due to the Veteran's lack of attendance at a VA examination. However, a subsequent VA examination was conducted and a January 1972 rating decision again denied the Veteran's claim, finding that there were no residuals of a fractured skull. The Veteran appealed the denial. In a January 1973 Decision, the Board denied service connection for residuals of head injury, finding that there were no residuals of a head injury found after his in-service accident. In October 1977, the Veteran filed a petition to reopen his claim for service connection for a head injury. In a May 1978 letter to the Veteran his claim was denied, stating that VA was unable to consider his claim unless new and material evidence was submitted. On June 19, 2018, VA received the Veteran's claim for service connection for residuals of his TBI, and a November 2018 rating decision granted service connection for a TBI at a 100 percent rating as of the June 2018 claim. Despite being sympathetic to the Veteran's claim, the Board is unable to find that the grounds for an earlier effective date for the grant of service connection for a TBI are present in this matter. The Veteran has put forth several arguments for an effective date prior to June 2018. See July 2019 and August 2020 submissions. In his July 2019 submission, the Veteran stated that the introduction of STRs which had not previously been of record served to prevent finality of prior decision. The July 2019 submission also stated that there was CUE in the finding that the Veteran's head injury residuals pre-existed his service. In his August 2020 submission the Veteran sets forth three arguments for an earlier effective date. First, the Veteran has claimed that VA failed to assist him in not providing a complete copy of his STRs to his examining providers. Second, the Veteran has stated that the denial of his claim for failure to appear at a VA examination was an improper procedural action. Third, the Veteran claims that there was no adjudication of the Veteran's petition to reopen his claim filed in 1977. The Board finds that all of these arguments fail to establish the basis for an earlier effective date. In a broad sense, all of the Veteran's aforementioned arguments fail to address the finality of the Board's 1973 Decision. It is clear from the record, highlighted above, that the Board denied the Veteran's claim in its January 1973 Decision. Unless the Chairman orders reconsideration, or one of the other exceptions to finality apply, all Board decisions are final on the date stamped on the face of the decision and are not subject to revision on the same factual basis. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. No such request for reconsideration is contained in the record. Thus, the Board's January 1973 denial is final. The Board has considered the Veteran's argument that STRs admitted to the record after the January 1973 Decision serve to invalidate the finality of the decision. See August 2020 submission. However, after review of the newly admitted STRS, the Board does not find that the records are relevant such to prevent finality of the January 1973 Decision. Applicable regulations provide that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (defining new and material evidence). 38 C.F.R. § 3.156(c). Therefore, new and material evidence is not needed to reopen a previously denied claim when relevant service department records are received after a prior final denial. Rather, the claim is simply reviewed on a de novo basis. "Relevant" official service records under 38 C.F.R. § 3.156(c) are defined as records that both "speak to the basis for the VA's prior decision" and "tend to prove or disprove a material fact" or may "aid in substantiating the claim." Kisor v. Wilkie, 969 F.3d 1333, 1340-41 (Fed. Cir. 2020) (internal citations and quotation marks omitted). In this matter, the Board is not able to find that the newly admitted STRs, made a part of the record in 2020 and 2021, are relevant to the Veteran's claim for service connection for his TBI residuals. The Board's 1973 denial was based on the failure of the evidence to establish that the Veteran had any diagnosed residuals of his in-service head injury. The Board did not deny the claim because there was no evidence of the occurrence of the in-service skull fracture/TBI; the denial was based on the lack of evidence to establish that the Veteran had residuals of his established in-service injury. Furthermore, the Board did not deny the head injury residuals claim because there was no aggravation of a pre-existing injury. Indeed, in the Findings of Fact, the Board specifically stated that no residuals had "been shown to exist on examination since separation." Thus, the Veteran's argument that the denial was based on an erroneous pre-existing injury is without merit. Simply put, the newly admitted STRs do not contradict the evidence previously of record and do establish that the Veteran had residuals of his in-service injury after his service. Thus, after reviewing the records, the Board finds that they do not speak to, or tend to prove or disprove, a fact or an issue contested in this matter. They do not establish that the Veteran was suffering from post-service head injury residuals. In other words, the records do not "tend to prove a fact that is of consequence" and, therefore, the Board concludes that they are not relevant as defined by 38 C.F.R. § 3.156(c). As for the Veteran's arguments that there were procedural mistakes which serve to preserve his claim from 1970, the Board finds those arguments without merit. The claims that there was not proper evidence provided to VA examiners or that his claim was originally denied due to failure to appear for a VA examination do not serve to invalidate in any way the Board's 1973 Decision. Indeed, these arguments were not presented to the Board prior to or in his appeal to the Board and were not made at any time after the Board's Decision sufficient to call for a reconsideration of the 1973 Decision. The Veteran has not provided any argument which invalidates the Board's Decision. The law is clear the Board's 1973 Decision is final and is not subject to revision on the same factual basis. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. As such, the Veteran's 1970 claim cannot serve as the effective date for his claim. Sears, 16 Vet. App. 244. The Board has also considered the Veteran's argument, again contained in his August 2020 submission, that the Veteran's petition to reopen his claim for head injury residuals in 1977 was not adjudicated. However, the record is clear that in May 1978 a rating offer declined to reopen the claim and informed the Veteran that in order to do so, new and material evidence must be submitted. The Veteran provided no response to the denial and that decision became final. Thus, it, too, cannot serve as the basis for an effective date for the Veteran's grant of service connection for residuals of his TBI. After review of the record, the Board does not find that any written communication by or on behalf of the Veteran in which service connection for TBI residuals was received from the date of the May 1978 final denial until his request to reopen his claim in June 2018. The record does not show that the Veteran filed any evidence which could be construed as seeking entitlement to service connection for an such conditions between the May 1978 decision and the Veteran's June 2018 formal claim. Thus, an effective date of January 27, 2017, is the appropriate effective date for the grant of service connection for the Veteran's IHD. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400. The law is well settled that the statutory framework does not allow for the Board to reach back to the date of an original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim. Sears, supra. In order for the Veteran to have been awarded an effective date based on an earlier claim, the Veteran had to show CUE in the prior denial of the claims. Flash, 8 Vet. App. 332. In this matter, while the Veteran did make an assertion of CUE, the simple statement that prior decisions contained CUE does not make a valid CUE claim regarding any of the prior decisions regarding the Veteran's TBI residuals. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Tension Headaches DEA As for the Veteran's claim for earlier effective dates for his tension headaches and DEA, the Board finds that these claims must be denied as a matter of law. The effective date for a grant of secondary service connection cannot be any earlier than the date of service connection for the primary condition. As both the Veteran's tension headaches and his award of DEA originated from his grant of service connection for TBI residuals, the effective date of the grants of service connection for these claims cannot be any earlier than the June 19, 2018, grant of service connection for TBI residuals. See Ellington, 22 Vet. App. At 145, 38 C.F.R. § 3.400. Additionally, there is no evidence of record that the Veteran sought service connection for headaches prior to June 2018. As such, pursuant to 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i), the effective date will be the date of receipt of the claim, or the date entitlement arose, whichever is later. In this matter, the June 2018 date of the Veteran's claim is the later of the possible effective dates. (Continued on the next page) Based on the foregoing, an effective date prior to June 19, 2018, for the grant of service connection for tension headaches and the award of DEA benefits is denied. As the preponderance of the evidence is against the claims, the benefit-of-the-doubt rule is not for application, and the claims must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Parrish, 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.