Citation Nr: 21075167 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 15-39 158 DATE: December 17, 2021 ORDER Entitlement to an earlier effective date of February 11, 2010, and no earlier, for the grant of service connection for residuals of a traumatic brain injury (TBI) is granted. Entitlement to an earlier effective date prior to February 23, 2016, for the grant of service connection for erectile dysfunction is denied. Entitlement to an earlier effective date prior February 23, 2016, for the grant of entitlement to special monthly compensation (SMC) on account of loss of use of a creative organ is denied. REMANDED Entitlement to an initial rating in excess of 10 percent prior to July 6, 2021, and a compensable evaluation, effective July 6, 2021, for service-connected residuals of a TBI is remanded. Entitlement to higher staged initial evaluations for service-connected posttraumatic stress disorder (PTSD), rated 50 percent prior to September 24, 2019, and 70 percent from September 24, 2019, is remanded. FINDINGS OF FACT 1. On January 29, 2010, the Veteran submitted a statement indicating his intent to file a claim for service connection. He separated from active service on February 10, 2010. On March 4, 2010, the Veteran submitted a formal claim for service connection for head trauma. In a June 2010 rating decision, the Regional Office (RO) denied service connection for tension headaches and cognitive impairment, residuals of TBI. 2. On July 13, 2016, the Veteran submitted a request to reprocess his claim under VA's special TBI review. 3. The June 2010 rating decision did not become final, as the Veteran's January 29, 2010, claim remained pending until it was ultimately granted in accordance with VA's special TBI review. 4. The record contains no claims for entitlement to service connection for erectile dysfunction or entitlement to SMC on account of loss of use of a creative organ prior to February 23, 2016. CONCLUSIONS OF LAW 1. The criteria for an effective date of February 11, 2010, and no earlier, for the grant of service connection for residuals of a TBI have been met. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (2020). 2. The criteria for entitlement to an effective date prior to February 23, 2016, for the grant of service connection for erectile dysfunction have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (2020). 3. The criteria for entitlement to an effective date prior to February 23, 2016, for the grant of entitlement to SMC on account of loss of use of a creative organ have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 2000 to February 2010. As an initial matter, the Board notes that the claims on appeal were not all appealed under the same appeal stream. Nevertheless, as all claims before the Board were properly appealed and certified to the Board under the Legacy appeals system, the Board has merged the appeals together and will address them in this determination. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. The Veteran has not raised any issues with the duty to notify or the 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). Thus, the Board need not discuss any potential issues in this regard. The Board acknowledges that that the Veteran submitted additional evidence after the statement of the cases were issued with respect to these claims. However, as this evidence is not relevant to the claims being decided in this determination, the Board will proceed to adjudicate the claims as done below with no prejudice to the Veteran. 1. Entitlement to an earlier effective date of February 11, 2010, and no earlier, for the grant of service connection for residuals of a TBI is granted. The Veteran claims that an earlier effective date prior to July 13, 2016, should be assigned for the grant of service connection for residuals of a TBI. In his May 2021 VA Form 9 Appeal, the Veteran asserted that his previous claim for service connection for residuals of a TBI closed in 2010 due to an error on VA's part, which allowed a TBI examination to be administrated by an examiner not trained to evaluate TBIs. VA formally notified the Veteran of this error in a July 5, 2016, letter, which invited him to request a reprocessing of his service connection claim. The Veteran asserted that this letter prompted his request for reprocessing and nowhere in the letter did VA indicate what the parameters would be for any assignment of an effective date, should service connection be granted. The Veteran asserted that VA should assess its own role in the previous administrative error, to include whether a clear and unmistakable error (CUE) had occurred in the 2010 adjudication of this claim. The effective date of an award of disability compensation based on an original claim shall 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. However, if the claim is received within one year after separation from service, the effective date of an award of disability compensation shall be the day following separation from active service. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). The effective date of an award of disability compensation based on a claim to reopen 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(a); 38 C.F.R. § 3.400(q)(ii), (r). In considering the pertinent evidence of record under the laws and regulations, the Board finds that February 11, 2010, is the correct date for the grant of service connection for residuals of a TBI. Specifically, the Board notes that VA conducted a special review of TBI examinations completed between 2007 and 2015 in support of disability compensation claims for TBI. This review revealed a number of initial TBI examinations that were not conducted by a physiatrist, psychiatrist, neurologist, or neurosurgeon. Consequently, in May 2016, VA's Secretary granted equitable relief that permitted VA to provide new initial TBI examinations to impacted claimants and, if additional benefits were due, VA would award an effective date as early as the date of the initial TBI claim. In this case, the Veteran submitted an intent to file a claim for service connection on January 29, 2010. The Veteran separated from active duty service on February 10, 2010. On March 4, 2010, the Veteran submitted a claim for service connection for head trauma. In April 2010, the Veteran underwent a VA TBI examination that was conducted by a licensed clinical psychologist. In a June 2010 rating decision, the Veteran was denied service connection for tension headaches and cognitive impairment, residuals of a TBI. On July 5, 2016, VA notified the Veteran of the special review of TBI examinations completed between 2007 and 2015 and provided him the opportunity to request a reprocessing of his prior TBI claim. On July 13, 2016, the Veteran requested reprocessing under VA's special TBI review. In an October 2016 rating decision, the RO denied this claim. The Veteran submitted a timely notice of disagreement (NOD) related to this denial in April 2017, and the Veteran's claim was ultimately granted by the Board in an August 2018 decision. The grant was implemented by the RO in a September 2018 rating decision. In consideration of the May 2016 grant of equitable relief by VA's Secretary permitting VA to reconsider TBI claims based on adequate VA examinations, the Board finds that the Veteran's initial 2010 rating decision never became final and the Veteran's January 29, 2010, claim remained pending until the August 2018 grant of service connection. Accordingly, the Board finds that an earlier effective date of February 11, 2010, and no earlier, is warranted for the grant of service connection for residuals of a TBI. As noted above, if a claim is received within one year after separation from service, the effective date of an award of disability compensation shall be the day following separation from active service. 38 U.S.C. § 5110(b)(1) (West 2002); 38 C.F.R. § 3.400 (b)(2)(i). Therefore, as the Veteran submitted a statement indicating his intent to file a claim in January 2010 and a formal claim for residuals of TBI in March 2010, within 1 year of his February 10, 2010, discharge from service, the Board finds that an effective date of February 11, 2010, and no earlier, is warranted for this grant of service connection. 2. Entitlement to an earlier effective date prior to February 23, 2016, for the grant of service connection for erectile dysfunction and for the grant of entitlement to SMC on account of loss of use of a creative organ is denied. The Veteran claims that an earlier effective date prior to February 23, 2016, should be assigned for the grant of service connection for erectile dysfunction and the grant of entitlement to SMC on account of loss of use of a creative organ. In his April 2017 NOD, the Veteran asserted that his erectile dysfunction is part and parcel, secondarily, of his PTSD appeal, which has been pending since April 15, 2013. The Veteran asserted that the effective date should have been assigned in accordance with when the Veteran was first prescribed his PTSD medication which led to his erectile dysfunction within the pendency of his PTSD appeal. Specifically, the Veteran noted that he has been on an active prescription for Sertraline since February 22, 2013. In considering the pertinent evidence of record under the laws and regulations, the Board finds that February 23, 2016, is the correct date for the grant of service connection for erectile dysfunction and the grant of entitlement to SMC on account of loss of use of a creative organ. While the Veteran has argued that he is entitled to an effective prior to February 23, 2016, there is no basis under the governing criteria to establish that he is legally entitled to an earlier effective date. The evidence of record reflects that the Veteran submitted an intent to file a claim on February 23, 2016. On March 16, 2016, the Veteran submitted a formal claim for service connection for erectile dysfunction secondary to his service-connected PTSD. In a May 2016 rating decision, service connection for erectile dysfunction and entitlement to SMC based on loss of use of a creative organ were granted with an effective date of February 23, 2016. As noted above, the effective date of an award based on an original claim or a claim reopened after final adjudication of compensation shall be fixed in accordance with the facts found but shall not be earlier than the date of the receipt of the application. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. In this case, the Board must conclude that an effective date earlier than February 23, 2016, the date of the Veteran's correspondence indicating his intent to file a claim, is not warranted for the grant of service connection for erectile dysfunction. There is no evidence in the record of a related claim being filed prior to February 23, 2016. In denying this claim, the Board has considered the Veteran's assertion that the effective date should have been assigned in accordance with when the Veteran was first prescribed his PTSD medication. The Board is deeply sympathetic to the Veteran's assertions that he was being treated for his erectile dysfunction prior to February 23, 2016. However, the Board notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) considered and rejected a similar argument in Ellington v. Peake, which held that the effective date for secondary service connection is controlled by the date of claim for the secondary benefit and when the disability arose; not by the effective date of the primary condition to which the new condition was secondary. Ellington v. Peake, 541 F.3d 1364, 1369 (Fed. Cir. 2008). The Federal Circuit further held that "a requirement that a secondary condition 'be considered a part of [an] original condition' does not, in our view, establish that the original condition and the secondary condition must receive identical effective dates." Ellington, supra. In this case, the Board finds that the date of the pertinent claim is February 23, 2016, and even if entitlement arose prior to this date, the applicable law indicates that an effective date 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. A claim for secondary service connection is not part of every claim for service connection for the primary disability or for an increase in the primary disability, nor is it a claim for increased compensation. See Manzaneres v. Shulkin, 863 F.3d 1374, 1379 (Fed. Cir. 2017); see also Gudinas v. McDonough, No. 19-2640, 2021 U.S. App. Vet. Claims LEXIS 659 (Vet. App. Apr. 16, 2021). The Veteran specified in the March 2016 formal claim that he was claiming erectile dysfunction as secondary to his service-connected PTSD. The secondary service connection claim is for a separate, additional disability and is not the same as a claim for an increased rating of the underlying primary disability of PTSD. In short, the Veteran did not submit his claim for service connection for erectile dysfunction within 1 year of separation from service, and there is no record that he submitted a claim related to his erectile dysfunction prior to February 23, 2016. As such, the Board is constrained by the law and regulations made by the Congress governing the establishment of effective date for the award of compensation and finds that an earlier effective date is not warranted in this case for the grant for the grant of service connection for erectile dysfunction. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. With respect to the effective dates of awards of SMC, the Board notes that claims for SMC are by definition a type of increased (i.e., "special") compensation. Thus, claims for earlier effective dates for SMC are treated analogously to claims for earlier effective dates for increased ratings. In general, the effective date of an award of increased evaluation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application. 38 U.S.C. § 5110(a). An exception to this rule applies, however, under circumstances where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. In that regard, the law provides that the effective date of the award "shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date otherwise, date of receipt of the claim." 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). With regard to the Veteran's claim for entitlement to SMC on account of loss of use of a creative organ, the Board emphasizes that SMC is compensation payable "in addition to the basic rate of compensation otherwise payable on the basis of degree of disability." 38 C.F.R. § 3.3503(a). It follows that SMC based on loss of use of a creative organ generally cannot precede the effective date of the grant of service connection for the underlying erectile disability. As such, an effective date prior to February 23, 2016, for the grant of SMC on account of loss of use of a creative organ is not warranted. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 10 percent prior to July 6, 2021, and a compensable evaluation, effective July 6, 2021, for service-connected residuals of a TBI is remanded. This issue was remanded by the Board for further development most recently in February 2021. In that determination, it was specifically noted that, after undertaking any other development deemed appropriate, the Agency of Original Jurisdiction (AOJ) should readjudicate the claim for entitlement to an increased rating for service-connected residuals of TBI with consideration of whether a separate rating under Diagnostic Code 8100, for migraines, might be applicable in addition to or in lieu of the current rating under Diagnostic Code 8045. While the AOJ addressed this increased rating claim in an August 2021 rating decision and in an August 2021 supplemental statement of the case (SSOC), no discussion was provided in either determination as to the possibility of evaluating headaches related to TBI separately under Diagnostic Code 8100. Therefore, remand is required to obtain compliance with the February 2021 remand instruction. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Moreover, the Board notes that the February 2021 remand also requested that the Veteran be scheduled for a new VA examination and that a VA examiner provide several opinions. Specifically, the examiner was asked to identify the symptoms of the Veteran's residuals of the TBI throughout the appeal period, and the current manifestations and severity of his TBI symptoms, to include memory loss and headaches, if determined to be related to TBI. The examiner was also asked to determine whether the Veteran had tensions headaches that are part and parcel of his TBI or clinically distinct from his service-connected residuals of TBI. In a July 2021 Residuals of TBI Disability Benefits Questionnaire (DBQ), the examiner determined that there is no evidence of a TBI due to service. There is no pathology to render a diagnosis at this time. There are no objective findings of memory loss or cognitive impairment. In a July 2021 Headaches DBQ, it was noted that the Veteran reported tension headaches that began in 2009 and have stayed the same. In a July 2021 VA Medical Opinion, the VA examiner determined that there is no evidence of a TBI on examination. There is no pathology to render a diagnosis for a TBI. The examiner determined that the Veteran's tension headache condition is less likely due to a TBI. Upon review, the Board does not find that the July 2021 VA examiner provided a sufficient rationale for determining that the Veteran's tension headaches are not related to his service-connected residuals of TBI. The Veteran has already been granted service connection for residuals of TBI. If the examiner determines that all symptoms related to his previously diagnosed TBI have resolved, the examiner must provide a detailed rationale for why the Veteran's reported headaches would not be considered a residual of his previously diagnosed TBI. As such, the Board finds that an addendum opinion must be provided on this matter. Additionally, the Veteran's representative argued in a September 2021 statement that neuropsychological testing is imperative in order to evaluate the Veteran properly, in light of his comorbid cognitive and psychological conditions. As the July 2021 Residuals of TBI DBQ noted that neuropsychological testing was not performed, the Board finds that an additional VA examination must be obtained on this matter in order to perform all appropriate testing. 2. Entitlement to higher staged initial evaluations for service-connected PTSD, rated 50 percent prior to September 24, 2019, and 70 percent from September 24, 2019, is remanded. As the above-requested examination for TBI might produce evidence pertaining to the evaluation of the Veteran's service-connected PTSD, the Board has determined that the PTSD claim is intertwined with the TBI claim. See Harris, 1 Vet. App. at 183. Accordingly, a decision by the Board on the Veteran's claim for a staged increased initial rating for PTSD would, at this point, be premature. Finally, in light of the remand for other matters, updated VA treatment records from the VA Greater Los Angeles Healthcare System, from July 2021 to the present, should be obtained and associated with the record. The matters are REMANDED for the following action: 1. Obtain all of the Veteran's outstanding treatment records from the VA Greater Los Angeles Healthcare System from July 2021 to the present. 2. Schedule the Veteran for a VA examination to determine the current manifestations and severity of his service-connected residuals of TBI and to identify the symptoms of this disability throughout the appeal period. The examiner should conduct all testing, to include neuropsychological testing, deemed necessary in order to identify the symptoms related to the Veteran's service-connected residuals of TBI, to include his reported memory loss and headaches. Then, upon review of the claims file and examination of the Veteran, the VA examiner should opine as to whether it is at least as likely as not that the Veteran's headaches OR his memory loss are related in any way to his service-connected residuals of TBI OR his service-connected PTSD. The examiner should provide a complete rationale for any opinions provided. If the examiner determines that the Veteran's headaches are not related to his service-connected residuals of TBI, the examiner should explain in detail why these headaches would not be considered a residual of a TBI. 3. After undertaking any other development deemed appropriate, readjudicate the issues of entitlement to an increased evaluation for service-connected residuals of TBI with consideration of whether a separate rating under Diagnostic Code 8100, for headaches, might be applicable in addition to or in lieu of the current rating under Diagnostic Code 8045, and entitlement to an increased evaluation for service-connected PTSD. If any benefit sought is not granted, furnish the Veteran and his representative with a SSOC and afford them an opportunity to respond before the record is returned to the Board for further review. M. Mills Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Durham, 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.