Citation Nr: 21071353 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 15-30 187 DATE: November 30, 2021 ORDER Entitlement to an effective date prior to September 20, 2013 for the award of service connection for cognitive deficits secondary to traumatic brain injury (TBI) is denied. Entitlement to an effective date prior to September 20, 2013 for the award of service connection for headaches secondary to TBI is denied. FINDINGS OF FACT 1. The Veteran's claim for service connection for traumatic brain injury was granted in a May 1979 rating decision. The Veteran was notified of the decision and did not appeal the assigned rating within one year of its issuance. 2. The record contains no document that can be construed as a formal or informal claim for service connection for residuals of the Veteran's service-connected TBI, identified as cognitive deficits and headaches prior to September 20, 2013. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date prior to September 20, 2013 for the award of service connection for cognitive deficits secondary to TBI have not been met.38 U.S.C. §§ 1110, 5107, 5110; 38 C.F.R.§ 3.400. 2. The criteria for entitlement to an effective date prior to September 20, 2013 for the award of service connection for headaches associated with TBI have not been met.38 U.S.C. §§ 1110, 5107, 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1977 to April 1979. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in June 2018. The transcript is of record. This matter was previously before the Board in August 2018, at which time it was remanded for additional development, and in October 2020, at which time the claims were denied. The Veteran appealed the Board's October 202 decision to the Court of Appeals for Veterans' Claims (Court), which, pursuant to a Joint Motion for Remand (JMR), vacated the Board's judgment and returned the matter to the Board. The claimant has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Effective Date 1. Entitlement to an effective date prior to September 20, 2013 for the award of service connection for residuals of a TBI, identified as cognitive defects and headaches The statutory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110. Unless specifically provided otherwise in Chapter 51 of Title 38 of the U.S. Code, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase of compensation 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). Regulations also provide that the effective date of an evaluation and award of compensation based on a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400 (o)(1). The regulation that implements this statute is 38 C.F.R. § 3.400. Except as otherwise provided, 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 increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. The Board notes that the effective date of an award of increased compensation may, however, be established at the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the application for an increased evaluation is received within one year from that date. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2). Three possible dates may be assigned depending on the facts of a case: (1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400 (o)(1)); (2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400 (o)(2)); or (3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400 (o)(2)). See Harper v. Brown, 10 Vet. App. 125, 126 (1997). Thus, determining an appropriate effective date for an increased rating under the effective date regulations involves an analysis of the evidence to determine (1) when a claim for an increased rating was received and, if possible, (2) when the increase in disability actually occurred. 38 C.F.R. §§ 3.155, 3.400(o)(2). Under applicable laws and regulations, if an increase in disability occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110 (b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400 (o)(1) 2); VAOPGCPREC 12-98 (1998). In making this determination the Board must consider all of the evidence, including that received prior to previous final decisions. Hazan v. Gober, 10 Vet. App. 511 (1997). However, 38 C.F.R. § 3.114 provides an exception to these rules when a Veteran's disability is impacted by a "liberalizing law." Pursuant to 38 C.F.R. § 3.114 (a), if a claimant receives an award or increase pursuant to a liberalizing law, the effective date of the award or increase is to be fixed "in accordance with the facts found," but cannot be "earlier than the effective date of the act or administrative issue." In Spencer v. Brown, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that a liberalizing law for purposes of determining effective dates is one that brings about "a substantive change in the law creating a new and different entitlement to a benefit." 17 F.3d 368, 372 (Fed. Cir. 1994). The Federal Circuit explained in Ortiz v. McDonough, 6 F.4th 1267 (Fed. Cir. 2021) that "to 'liberalize' means to make policies or laws less strict...censorious and rhadamanthine." In this case, the Veteran avers that he is entitled to an effective date earlier than September 20, 2013, for the award of service connection for cognitive deficits and headaches. The Board notes that the Veteran has been service connected for his underlying TBI since May 1979, characterized as left front parietal skull defect status post frontal craniectomy for left acute epidural hematoma. He has argued for the same effective date for entitlement to service connection for cognitive deficits and headaches associated with his TBI. At the time the May 1979 rating decision was issued, there was no evidence associated with the claims file suggesting the presence of residuals not then considered, including cognitive deficits and headaches. Moreover, the Veteran did not appeal the decision within one year of its issuance. Thus, the May 1979 rating decision became final. See 38 C.F.R. § 20.1103. From May 1979, the record is bare of any document that can be construed as a formal or informal claim for benefits for residuals of a TBI, to include cognitive deficits or headaches prior to the Veteran's September 20, 2013 submission. Thus, the date of claim is September 20, 2013. Moreover, the record is altogether bare of evidence that the Veteran's headaches or cognitive symptoms arose or worsened within the year prior to the September 2013 claim. Thus, there is no basis for assigning an effective date during this time period per section 3.400(o)(2). Further, if entitlement to an increased rating for headaches or cognitive symptoms arose prior to September 20, 2012, (i.e., more than a year prior to the September 20, 2013 claim for increase,) under the law governing effective dates, no earlier date is available given the facts in this case, as September 20, 2013 constitutes the later of the two dates (the date entitlement arose and the date of claim). However, the Veteran has averred that entitlement to an earlier effective date is warranted based on an amendment to DC 8045 made in October 2008, whereby that code's language was changed to provide for compensation to veterans who experience TBI residuals that fall into categories such as emotional/behavioral residuals, physical/neurological dysfunction, subjective symptoms, including headaches, and cognitive impairment. The Veteran argues that the October 2008 amendment constitutes a liberalizing law, and that by virtue of experiencing headaches and mild memory loss prior to the adoption of the amended language of DC 8045, entitlement was warranted as of the date of its adoption; thus, the Veteran contends he is entitled to service connection for headaches and cognitive defects associated with TBI from October 2008. The Board disagrees. Notably, the October 23, 2008 revisions to DC 8045 did not create new or expanded entitlement to benefits for residuals of TBI, including headaches or memory loss. Rather, those revisions constituted a reorganization of the ratings criteria, as service connection for headaches and memory loss, to include as secondary to TBI, was available prior to the October 23, 2008 revisions, but under different sections of the code. As noted above, the Federal Circuit has held that "to 'liberalize' means to make policies or laws less strict...censorious and rhadamanthine." The instant example of regulatory reorganization does not qualify, because the reorganization did not, in effect, render the provisions governing entitlement to disability benefits less strict, censorious or rhadamanthine. Critically, no new entitlements were created by the revisions, and the ratings criteria as regards Veterans with headache or memory loss secondary to TBI was rendered no less rhadamanthine. Accordingly, the Board finds that the October 23, 2008 revisions to DC 8045 do not constitute a "liberalizing law" for purposes of 38 C.F.R. § 3.114 (a), and thus, entitlement to an earlier effective date on that basis is unavailable. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Sahraie, 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.