Citation Nr: 21074869 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 20-28 348 DATE: December 16, 2021 ORDER Entitlement to an effective date earlier than March 28, 2014, for entitlement to service connection for tension and posttraumatic headaches of migraine type (headaches) associated with a traumatic brain injury (TBI) is denied. Entitlement to an effective date earlier than March 28, 2014, for entitlement to service connection for a TBI is denied. REMANDED Entitlement to service connection for a respiratory or pulmonary disorder is remanded. REFERRED The issue of entitlement to an earlier effective date based on clear and unmistakable error (CUE) in the February 1981 rating decision that denied service connection for headaches was raised by the notice of disagreement (NOD) filed in November 2019. The Agency of Original Jurisdiction (AOJ) never adjudicated such claim. As such, the claim for earlier effective date based on CUE in the February 1981 rating decision is referred to the AOJ for adjudication. FINDINGS OF FACTS 1. The Veteran's claim for service connection for headaches was denied in a February 1981 rating decision, which was final. On March 28, 2014, a petition to reopen the claim for service connection for headaches was filed. 2. There were no formal claims, informal claims, or written intent to file a petition for service connection for a TBI filed prior to March 28, 2014. CONCLUSIONS OF LAW 1. The criteria for the assignment of an effective date prior to March 28, 2014, for entitlement to service connection for headaches, have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 2. The criteria for the assignment of an effective date prior to March 28, 2014, for entitlement to service connection for a TBI, have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1960 to December 1963. The claims were appealed to the Board of Veterans' Appeals (Board) from a November 2018 rating decision that granted service connection for headaches and TBI and assigned effective dates of March 20, 2018 for both. That rating decision also denied service connection for COPD. Notably, in June 2019, the Veteran submitted a VA Form 20-0995, Supplemental Claim Application. In that VA Form 20-0995, he requested an earlier effective date for establishing service connection for a headache disorder and TBI, to include based on CUE. Accordingly, in a March 2020 rating decision, the AOJ assigned an effective date of March 28, 2014, for service connection for TBI and headaches because the November 2018 rating decision that originally designed the effective dates contained CUE. The claims were previously before the Board of Veterans' Appeal (Board) in August 2020. At that time, the Board denied entitlement to an effective date earlier than March 28, 2014 for headaches and TBI. The Board also denied the claim for service connection for COPD. The Veteran appeal the denial to the Court of Appeals for Veterans Claims (Court). While the matter was pending before the Court, the parties entered into a Joint Motion for Partial Remand (JMPR). Pursuant to the terms of the JMPR, the parties agreed that the Board had provided an inadequate statement of reasons and bases for denying earlier effective date for headaches to the extent that it did not address the Veteran's contention that the February 1981 rating decision that denied service connection for headaches contained CUE. Furthermore, the parties agreed that the claims for earlier effective date for headache and TBI are inextricably intertwined. As such, the claim for earlier effective date for TBI was also remanded back to the Board. Finally, the parties agreed that the Board supplied an inadequate statement of reasons and bases when it denied service connection for COPD. In July 2021, the Court vacated the portion of the Board's August 2020 decision that had been challenged on appeal and remanded the matters to the Board for further development consistent with the JMPR. As a preliminary matter, the Board notes that it does not have jurisdiction over the Veteran's request to revise the February 1981 rating decision on the basis of CUE. This is because the AOJ has not yet issued a decision addressing whether revision of the February 1981 rating decision is warranted in the first instance. As such, the Board lacks jurisdiction over this issue at this juncture. Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2012); Jarrell v. Nicholson, 20 Vet. App. 326, 332-33 (2006). The Board also notes that although it addressed CUE, the March 2020 rating decision only discussed whether CUE was present in the November 2018 rating decision that assigned the original effective dates for service connection for headaches and the TBI, not the February 1981 rating decision that denied service connection for headaches. Because this argument has been raised but not yet adjudicated by the RO, the Board hereby refers the request for revision of the February 1981 rating decision denying service connection for headaches to the AOJ for adjudication in the first instance. Although the Board is referring the issue of whether revision of the February 1981 rating decision is warranted due to CUE, it can nonetheless address the issue of whether effective dates prior to March 28, 2014, for establishing service connection for TBI and headaches are warranted in this decision. A claim seeking revision on the basis of CUE is a completely separate claim for entitlement to an earlier effective date. Phillips v. Brown, 10 Vet. App. 25 (1997) (noting that CUE claim and a claim seeking an earlier effective date are not the same or inextricably intertwined because while the effective date flows directly from the award of service connection, a CUE claim may be brought at any time and is premised upon an error in a prior final adjudication). Essentially, even though the Board is referring the issue of whether the February 1981 rating decision should be revised due to CUE, the Board can still address whether an earlier effective date is warranted on a non-CUE basis. This discussion is set forth in greater detail below. 1. Entitlement to an effective date earlier than March 28, 2014, for entitlement to service connection for headaches is denied. 2. Entitlement to an effective date earlier than March 28, 2014, for entitlement to service connection for a TBI is denied. The Veteran asserts that he is entitled to effective dates prior to March 28, 2014, for the grant of service connection for TBI and the headaches associated with his TBI. Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of the receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. In this case, the Veteran initially filed a claim for service connection for headaches in December 1980. Entitlement to service connection was denied in a February 1981 rating decision and the Veteran received notification of this decision in March 1981. The Veteran did not appeal that rating decision or submit new and material evidence within a year of that rating decision, thereby it became final. The Veteran's petition to reopen the claim for service connection for headaches was received on March 28, 2014. The Board notes that the Veteran contacted VA in July 1987 with respect to an unrelated matter. However, the evidence of record provides no basis upon which to infer that the Veteran was seeking to reopen the claim for service connection for headaches earlier than March 28, 2014. Similarly, the Veteran filed an initial claim for service connection for TBI (claimed as forgetfulness) on March 28, 2014. A thorough review of the record prior to March 28, 2014, does not reveal any document or communication that can be construed as a formal or informal claim for a TBI. Accordingly, the Board notes that the Veteran's intent to seek benefits did not include a claim for entitlement to service connection for TBI prior to March 28, 2014. See Servello v. Derwinski, 3 Vet. App. 196, 199-200 (1992); see also Brannon v. West, 12 Vet. App. 32, 34-35 (1998); see also Talbert v. Brown, 7 Vet. App. 352, 356-7 (1995). Additionally, the Board finds that there is likewise no general statement of intent to seek benefits coupled with a reasonably identifiable in-service medical diagnosis in service treatment records that may constitute an earlier claim for benefits. Sellers v. Wilkie, 30 Vet. App. 157 (2018). Hence, there was no pending claim prior to March 28, 2014 pursuant to which benefits could be granted. Essentially, based on the laws and regulations set forth above, and after reviewing the totality of the evidence, the Board finds that effective dates prior to March 28, 2014, for headaches and a TBI, are not warranted. The earliest legally permissible effective dates have already been assigned based on the date of receipt of the claims. In reaching the foregoing determinations, the Board has applied the benefit of the doubt doctrine and resolved all doubt in the Veteran's favor. However, the weight of the evidence is against the grant of an effective dates earlier than March 28, 2014, for the award of service connection for headaches and TBI. The Board acknowledges that there is an indication from the record that the Veteran had TBI and headache symptoms before he was awarded service connection. Therefore, the date entitlement arose is the appropriate effective date. 38 U.S.C. § 5107 ; 38 C.F.R. § 3.102 ; see also Gilbert v. Derwinski, supra. REASONS FOR REMAND 3. Entitlement to service connection for a respiratory or pulmonary disorder is remanded. The Veteran is also claiming entitlement to service connection for a respiratory or pulmonary disorder, to include COPD, due to inhaling chemicals such as jet fuel during service. The evidence of record indicates that in March 1961 service treatment records, he reported sharp stabbing pains in his upper medial chest upon inhalation. Treatment records from that indicate "suspected pleurisy." He also reported difficulty breathing in September 1960 and November 1960. The record shows that he has been prescribed Montelukast for difficulty breathing and that he currently experiences dyspnea (i.e., shortness of breath) with mild exertion. At a September 2018 VA examination, a VA examiner opined that the Veteran did not have any current diagnosis of COPD. In the examination report, the VA examiner stated that his records failed to document any treatment of respiratory issues, although he did report dyspnea with mild exertion. An opinion based on an inaccurate factual premise is entitled to no probative weight. Reonal v. Brown, 5 Vet. App. 458 (1993). As set forth above, the Veteran has reported and received treatment for respiratory symptoms in the past, contrary to the VA examiner's statement. As such, the VA examiner's statement that his records were devoid of any treatment for respiratory issues is entitled to no probative weight. At this juncture, the Board is unable to reach the merits of this claim. To that end, the nature of the Veteran's claimed respiratory or pulmonary disability remains uncertain. For instance, it is unclear whether he has a respiratory or pulmonary condition other than COPD that is characterized by symptoms such as shortness of breath or dizziness but that has not yet been identified by an examiner. Moreover, it is unclear whether his reported symptoms are manifestations of a service-connected disability, such as his headaches or sleep apnea, or rather manifestations of a separate non-service-connected disability. In the interest of assembling clear and reliable findings with respect to the nature and etiology of his claimed disability, the Board finds that remand is necessary to obtain a new VA examination. Accordingly, this matter is REMANDED for the following action: 1. Arrange for the Veteran to undergo a VA examination with an appropriate examiner regarding the nature and etiology of his claimed respiratory or pulmonary disability. All necessary tests and studies should be performed. After examining the Veteran and reviewing the claims file in its entirety, including a copy of this Remand, the examiner is directed to do the following: (a.) Identify any condition associated with the Veteran's respiratory or pulmonary symptoms, such as dyspnea on mild exertion and dizziness that has been present during the pendency of this appeal, even if it has since resolved. In doing so, the examiner is asked to clarify whether the Veteran's symptoms are manifestations of a service-connected disability, such as sleep apnea or migraines, or whether his symptoms are manifestations of a separate, non-service-connected disability. The examiner is reminded that, for VA purposes, a disability does not require a known diagnosis or pathology; it only requires that the condition results in a functional limitation of earning capacity. If the Veteran does not have any diagnosable condition with respect to his symptoms, but has those symptoms only, determine whether those symptoms cause functional loss. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). (b.) For each identified condition, provide an opinion as to whether it is at least as likely as not (approximately 50 percent or greater probability) that it is related to or otherwise had its onset during his service. The examiner should consider and comment on the Veteran's contention that his condition is due to inhaling chemicals such as jet fuel during service A complete rationale for these opinions must be provided. All opinions should be based on examination findings, historical records, and medical principles. The examiner should fully articulate a sound reasoning for all conclusions made. In doing so, the examiner must consider the Veteran's lay statements regarding the onset of his claimed disability and the functional limitations, if any, that his symptoms cause. Sarone Solomon Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Rademacher, 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.