Citation Nr: 21067392 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 18-32 721 DATE: November 4, 2021 ORDER An effective date earlier than September 7, 2010, for the award of a 70 percent rating for traumatic brain injury (TBI) is denied. An effective date earlier than September 7, 2010, for the award of a total disability rating based on individual unemployability (TDIU) is denied. An effective date earlier than September 7, 2010, for eligibility for Dependents' Educational Assistance (DEA) benefits under 38 U.S.C. Chapter 35 is denied. FINDINGS OF FACT 1. A June 1999 rating decision granted a 10 percent rating for post-concussion syndrome (now rated as TBI), and the Veteran did not perfect an appeal or submit new and material evidence with respect to the rating assigned for post-concussive syndrome within one year of that decision; therefore, the June 1999 rating decision is final. 2. The Veteran's claim for an increased rating for TBI was received on September 7, 2011, and no communication that may be interpreted as a formal or informal claim for an increased rating for TBI was received prior to that date. 3. The Veteran's claim for TDIU was raised by the record as part of his claim for an increased rating for TBI, and no communication that may be interpreted as a formal or informal claim for TDIU was received prior to September 7, 2011. 4. Eligibility for DEA benefits under 38 U.S.C. Chapter 35 did not arise until September 7, 2010. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than September 7, 2010, for the award of a 70 percent rating for TBI have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2020). 2. The criteria for an effective date earlier than September 7, 2010, for the award of TDIU have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2020). 3. The criteria for an effective date earlier than September 7, 2010, for eligibility for DEA benefits under 38 U.S.C. Chapter 35 have not been met. 38 U.S.C. § 5110; (2012); 38 C.F.R. § 3.400, 3.807 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1978 to June 1981, with additional service in the Utah Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2016 and November 2017 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). With respect to the Veteran's TBI, a June 1999 rating decision granted service connection for post-concussion syndrome with headache and mild diminished performance on memory tasks (now rated as TBI), and a 10 percent rating was assigned, effective November 19, 1998. In September 2011, the Veteran filed a claim for an increased rating for TBI. In a December 2011 rating decision, a 40 percent rating was granted, effective September 7, 2011. Thereafter, the Veteran appealed the 40 percent rating assigned for TBI. In November 2017, the Board granted a 70 percent rating for TBI. In a November 2017 rating decision implementing the Board's decision, the RO assigned an effective date of September 7, 2011, for the award of the 70 percent rating for TBI, and the Veteran appealed that decision to the Board. In an Apri 2018 rating decision, the RO granted an effective date of May 4, 2011. In a July 2019 decision, the Board granted an effective date of September 7, 2010, and the Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court). In a May 2020 Joint Motion for Remand (Joint Motion), the parties agreed that the Board erred in failing to address whether a May 15, 2000 VA treatment record constituted an informal claim for a higher rating for TBI. The Court granted the Joint Motion, vacating the Board's July 2019 decision and remanding it to the Board for readjudication. In October 2020, the Board again denied an effective date earlier than September 7, 2020, for the award of a 70 percent rating for TBI, and the Veteran appealed that decision to the Court. In a June 2021 Joint Motion, the parties agreed that the Board erred in failing to address whether the May 15, 2000 VA treatment record constituted new and material evidence received within one year of the June 1999 rating decision in accordance with the recent holding in Lang v. Wilkie, 971 F.3d 1348, 1355 (Fed. Cir. 2020). The Court granted a Joint Motion, vacating the Board's October 2020 decision and remanding it to the Board for readjudication. With respect to TDIU and eligibility for DEA benefits under 38 U.S.C. Chapter 35, an August 2016 rating decision granted TDIU and eligibility for DEA benefits, effective March 31, 2014, and the Veteran appealed that decision to the Board. In an Apri 2018 rating decision, an effective date of May 4, 2011, was granted for the award of TDIU. In a July 2019 rating decision, an effective date of September 7, 2010, was granted for the award of TDIU and eligibility for DEA benefits. In a January 2020 decision, the Board denied an effective date earlier than September 7, 2010, and the Veteran appealed that decision to the Court. In an August 2021 Joint Motion, the parties agreed that a remand was warranted to merge the issue of entitlement to an earlier effective date for the award of TDIU and eligibility for DEA benefits with the recently remanded claim for an earlier effective date for the award of a 70 percent rating for TBI, as the effective date previously assigned for TDIU was based on the fact that TDIU was raised as part of the claim for an increased rating for TBI. The Court granted a Joint Motion, vacating the Board's January 2020 decision and remanding it to the Board for readjudication. Effective Dates Unless specifically provided otherwise, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for an increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. For an increase in disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if the claim is received within one year from such date; otherwise, it is the date of receipt of the claim. 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o)(2). Prior to March 24, 2015, a "claim" was defined 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). An informal claim included "[a]ny communication or action, indicating an intent to apply for one or more benefits." 38 C.F.R. § 3.155(a) (2014). Additionally, prior to March 24, 2015, a report of examination or hospitalization by VA or uniformed services that relates to a disability for which service-connection has previously been established will be accepted as an informal claim for an increase. 38 C.F.R. § 3.157(b)(1) (2014). In determining what constitutes a "report of examination" under 38 C.F.R. § 3.157(b)(1), although such may be less detailed than a formal compensation examination, it must at least "describe the results of a specific, particular examination." Massie v. Shinseki, 25 Vet. App. 123, 133-34 (2011) aff'd Massie v. Shinseki, 724 F.3d 1325 (Fed. Cir. 2013). Furthermore, the report of examination or hospitalization must indicate that the service-connected disability worsened since the last time it was evaluated. Id. The date of outpatient or hospital examination or date of admission to a VA or uniformed service hospital will be accepted as the date of receipt of the claim. 38 C.F.R. § 3.157(b)(1) (2014). VA treatment records merely showing treatment are insufficient to constitute an informal claim for increased benefits under 38 C.F.R. § 3.157(b). Massie, 25 Vet. App. at 134. When entitlement to TDIU is raised during the adjudicatory process of a claim for an increased rating or during the appeal of the initial rating assigned, it is part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447, 448 (2009). A claim for TDIU is raised when the Veteran submits evidence of unemployability related to the underlying condition. Id. at 454. 1. Entitlement to an effective date earlier than September 7, 2010, for the award of a 70 percent rating for TBI A June 1999 rating decision granted an initial 10 percent rating for post-concussion syndrome with headache and mild diminished performance on memory tasks (now rated as TBI). The Veteran was notified of that decision in an August 1999 letter, which included notice of his appellate rights; however, he did not submit a notice of disagreement to the initial rating assigned within one year of that decision. At the time of the June 1999 rating decision, a determination on a claim by the agency of original jurisdiction (AOJ) became final unless a notice of disagreement or new and material evidence was received within one year of the date the AOJ mailed notice of the decision. See 38 C.F.R. §§ 20.200, 20.202, 20.302, 20.1103 (1999). Previous determinations which are final and binding, including decisions of degree of disability, will be accepted as correct in the absence of clear and unmistakable error (CUE). 38 C.F.R. § 3.105 (1999). The Veteran asserts that he is entitled to an earlier effective date for the award of a 70 percent rating for TBI because a March 5, 2000 VA treatment record noting that the Veteran had "[h]ead trauma with memory deficits and some cognitive deficits, high level executive function deficits" was constructively received by VA during the one-year appeal period following the June 1999 rating decision. In a July 2021 brief, the Veteran's attorney asserted that the March 5, 2000 VA treatment record constituted new and material evidence with respect to the initial rating assigned for TBI because it raised the possibility of substantiating a higher rating for the Veteran's TBI. At the time of the June 1999 rating decision, if new and material evidence was received prior to the expiration of the appeal period, it was considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. See 38 C.F.R. § 3.156(b) (1999). VA medical records created within the one-year appeal period following a decision of the AOJ are considered to have been constructively received for the purposes of 38 C.F.R. § 3.156(b), regardless of whether the VA adjudicator had knowledge of their existence. Lang v. Wilkie, 971 F.3d 1348, 1355 (Fed. Cir. 2020). Thus, if VA treatment records created within one year of a rating decision constitute new and material evidence, they are considered as having been filed in connection with the prior claim, and decisions issued after the creation of such evidence relate back to the date of the prior claim. Id. Pursuant to VA regulations in effect at the time that the March 5, 2000 VA treatment record was created, new and material evidence was defined as "evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim." 38 C.F.R. § 3.156(a) (2000); see also Hodge v. West, 155 F.3d 1356, 1361 (Fed. Cir. 1998). Upon review of the record, the Board finds that an effective date earlier than September 7, 2010, for the award of a 70 percent rating for TBI is not warranted. At the time of the June 1999 rating decision, the evidence of record consisted of the Veteran's National Guard treatment records, which show that he sustained a head injury during a January 1996 parachuting accident, and subsequent treatmentrecords showing treatment for post-concussive syndrome, including multiple neurological, psychiatric, and neuropsychological evaluations. Specifically, a July 1998 neurology treatment record noted that the Veteran had problems with memory and cognitive loss secondary to the closed head injury. A July 1998 psychiatric evaluation noted that the Veteran had short and intermediate memory loss, difficulty comprehending time, and feeling like he got lost when people talked to him. A September 1998 follow-up neurology treatment record noted significant problems with memory due to post-concussive syndrome. A September 1998 neuropsychological evaluation report detailed persistent cognitive deficits, diminished memory, and neurobehavioral issues since the Veteran's head injury. An October 1998 neuropsychological evaluation reported described deficits in sustained attention, concentration, and executive ability. It was also noted that the Veteran had difficulty with items requiring novice problem solving, new learning, and efficient attention and concentration. A subsequent October 1998 neuropsychological evaluation reported detailed deficits in memory, attention, and concentration and difficulty with organization of new material and retention of information, which would likely interfere with the Veteran's ability to perform at the professional level needed for an officer. A January 1999 treatment record noted that the Veteran would have difficulty performing complex and demanding jobs and experience significant reduction in ability in terms of paying attention to detail, having ready access to information, and integrating information. Subsequent to the June 1999 rating decision, the Veteran sought treatment at a VA amputee clinic for left knee and ankle problems on March 15, 2000. He reported that his left knee brace was falling down, and he was having left knee pain and popping and pain in the left ankle. It was noted that the Veteran sustained multiple injuries in a parachuting accident, including a dislocated left knee, a soft tissue tear in the left calf, a tibial plateau fracture, a left ankle injury, and a head injury that left short-memory deficits. The treatment provider performed a physical examination of the left knee and left ankle, and the assessment was injury to the left knee with posterior cruciate and anterior cruciate ligament reconstruction (with posterior cruciate ligament revisions), sinus tarsi syndrome and left calcaneocuboid joint pain with pronatory forces in both feet, and head trauma with memory deficits and some cognitive deficits, high level executive functioning deficits. The treatment provider recommended an undersleeve for the Veteran's knee brace, knee stabilization exercises, manipulative therapy, and a referral to podiatry. The Board finds that the March 15, 2000 VA treatment record does not constitute new and material evidence with respect to the initial rating assigned to the Veteran's service-connected TBI, as the content of the treatment record is cumulative of the evidence already of record at the time of the June 1999 rating decision. The March 15, 2000 VA treatment record does not show any evaluation of or treatment for the Veteran's TBI; rather, it shows treatment in the VA amputee clinic for left knee and ankle problems and merely notes that the Veteran sustained a head injury that resulted in memory deficits, some cognitive deficits, and high level executive functioning deficits. The treatment records already associated with the claims file at the time of the June 1999 rating decision contained multiple neurological, psychiatric, and neuropsychological evaluations, which specifically noted that the Veteran had memory, cognitive, and executive functioning deficits resulting from the head injury he sustained during a parachuting accident. Moreover, those treatment records already associated with the claims file at the time of the June 1999 rating decision described the nature and severity of the Veteran's memory, cognitive, and executive functioning deficits in far greater detail than the March 15, 2000 VA treatment record for left foot and ankle disabilities. Based on the foregoing, the Board finds that the March 15, 2000 VA treatment was not so significant that it must be considered in order to fairly decide the proper rating assigned to the Veteran's TBI, as it is cumulative of the evidence already of record at the time of the June 1999 rating decision. Accordingly, the March 15, 2000 VA treatment record does not constitute new and material evidence with respect to the initial rating assigned to the Veteran's TBI. As the Veteran did not appeal the initial rating assigned for TBI in the June 1999 rating decision or submit new and material evidence within one year of that decision, the initial rating assigned for TBI in the June 1999 rating decision became final. See 38 C.F.R. §§ 20.200, 20.202, 20.302, 20.1103 (1999). Because the June 1999 rating decision is final, the only basis for challenging the initial rating assigned for TBI is a motion to revise the June 1999 rating decision based on CUE. See 38 C.F.R. § 3.105. However, no such motion has been filed. See 38 C.F.R. § 20.1404 (a motion for revision of a Board decision based on CUE must be in writing and meet certain other requirements). The Board has considered whether the March 15, 2000 VA treatment record constitutes an informal claim for an increased rating for TBI under 38 C.F.R. § 3.157(b). However, that record of treatment for left knee and ankle disabilities does not describe the results of a specific, particular examination related to the Veteran's TBI, nor does it indicate that the Veteran's TBI worsened since the last time it was evaluated. Therefore, it cannot be construed as an informal claim for an increased rating for TBI. See 38 C.F.R. § 3.157(b); Massie, 25 Vet. App. at 134. On September 7, 2011, the Veteran submitted a claim for an increased rating for TBI. A review of the record reveals no communication or VA report of examination or hospitalization that may be interpreted as a formal or informal claim for an increased rating for TBI prior to that date. The Board acknowledges that VA amended 38 C.F.R. § 4.124a, Diagnostic Code 8045, effective October 23, 2008. See Schedule for Rating Disabilities; Evaluation of Residuals of Traumatic Brain Injury (TBI), 73 Fed. Reg. 54,693 (effective October 23, 2008). These revisions were a liberalizing change to the criteria used to evaluate TBI. Section 3.114 of 38 C.F.R. provides that where a benefit is awarded pursuant to a liberalizing law or VA issue, the effective date of such award or increase shall be fixed in accordance with the facts found but shall not be earlier than the effective date of the act. 38 C.F.R. § 3.114(a). If a claim is reviewed on the initiative of VA within one year from the effective date of the law or VA issue, or at the request of a claimant received within one year from that date, benefits may be authorized from the effective date of the law or VA issue. Id. at § 3.114(a)(1). If a claim is reviewed at the request of the claimant more than one year after the effective date of the law or VA issue, benefits may be authorized for a period of one year prior to the date of receipt of such request. Id. at § 3.114(a)(3). Here, VA notified the Veteran in March 2009 of the change in the rating criteria for TBI. In the March 2009 letter, VA also notified the Veteran that if he qualified for increased compensation, the increase could be paid up to one year retroactively, but not before the new criteria went into effect on October 23, 2008. The Veteran requested an increase in his rating for his service-connected TBI on September 7, 2011, which was more than one year after the October 23, 2008 effective date of the change to the criteria used to evaluate TBI. Thus, an effective date based on the revised criteria can be no earlier than one year prior to the date of claim. The Veteran has already been awarded an effective date one year prior to his date September 7, 2011 date of claim. Accordingly, the effective date for an award of an increased rating can be no earlier than one year prior to the date VA received the claim, and an effective date earlier than September 7, 2010 is not warranted. See 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400. 2. Entitlement to an effective date earlier than September 7, 2010, for the award of TDIU Upon review of the record, the Board finds that an effective date earlier than September 7, 2010, for the award of TDIU is not warranted. The Veteran's application for TDIU was received on July 27, 2015. However, a claim for TDIU was raised by the record prior to that date as part of the Veteran's claim for an increased rating for TBI. See Rice, 22 Vet. App. at 453-54. As found above, the Veteran's claim for an increased rating for TBI was received on September 7, 2011. A review of the record reveals no communication or report of examination or hospitalization that may be interpreted as a formal or informal claim for an increased rating for TBI or entitlement to TDIU prior to that date. Because the effective date for an award of an increased rating can be no earlier than one year prior to the date VA received the claim, an effective date earlier than September 7, 2010, for the award of TDIU is not warranted. See 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400. 3. Entitlement to an effective date earlier than September 7, 2010, for eligibility for DEA benefits under 38 U.S.C. Chapter 35 Upon review of the record, the Board finds that an effective date earlier than September 7, 2010, for eligibility for DEA benefits under 38 U.S.C. Chapter 35 is not warranted. DEA benefits under 38 U.S.C. Chapter 35 are available when a Veteran was discharged from service under conditions other than dishonorable and has a permanent total service-connected disability. 38 C.F.R. § 3.807(a). As the Veteran was not in receipt of a permanent total service-connected disability rating prior to September 7, 2010, the criteria for eligibility for DEA benefits prior to that date have not been met. Therefore, an effective date earlier than September 7, 2010, for eligibility for DEA benefits under 38 U.S.C. Chapter 35 have not been met. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Banister, 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.