Citation Nr: 21007271 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 20-03 105 DATE: February 9, 2021 ORDER Entitlement to an initial compensable rating for residuals of a traumatic brain injury (TBI) is denied. Entitlement to an effective date earlier than June 6, 2018, for the award of service connection for residuals of a TBI is denied. Entitlement to an effective date earlier than June 6, 2018, for the award of service connection for cervical strain with degenerative disc disease is denied. REMANDED Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to an initial rating in excess of 10 percent for cervical strain with degenerative disc disease is remanded. FINDINGS OF FACT 1. The most probative evidence of record shows that the Veteran does not have residuals from a TBI. 2. An intent to file a claim for service connection was received by VA on June 5, 2017, and a formal application was received by VA on June 6, 2018, more than one year later. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for residuals of a TBI have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8045. 2. The criteria for an effective date earlier than June 6, 2018, for the award of service connection for residuals of a TBI have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.400, 3.155. 3. The criteria for an effective date earlier than June 6, 2018, for the award of service connection for cervical strain with degenerative disc disease have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.400, 3.155. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from September 2004 to June 2009. These matters come before the Board of Veterans’ Appeals (Board) from a December 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2020, a Board decision was issued in this claim. However, that decision was vacated in a July 2020 decision, on the grounds that the Veteran had been deprived of due process in that a requested copy of the claims file had not been received by his representative prior to the adjudication. In August 2020, the Veteran’s attorney was provided a copy of the Veteran’s entire claims file as requested and was granted 90 days to submit additional evidence and argument in response to an August 2020 request. The 90-day period has expired, and the Veteran’s attorney has not submitted additional evidence or argument. The Board notes that additional VA treatment records and a VA examination report have been associated with the record following the March 2020 Supplemental Statement of the Case; however, the records are not relevant to the claim for an initial compensable rating for residuals of a TBI. A waiver of RO consideration of the evidence is therefore not required. Concerning the claim for an increased rating for PTSD, the RO reviewed those additional records and VA examination report in a rating decision. In Rice v. Shinseki, the U.S. Court of Appeals for Veterans’ Claims (Court) held that entitlement to a total disability rating based on individual unemployability (TDIU) claim may be considered part and parcel of an increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Court found in Rice that when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. The Veteran works as a mental health counselor and the evidence does not raise the issue that the Veteran is unemployable due to his service-connected disabilities. Accordingly, the Board finds that Rice is not applicable and a need for consideration of TDIU is not inferred as part of the claims for increased ratings. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). These duties have been satisfied in this case. Appropriate notice was provided in June 2018. The RO associated the Veteran’s service and VA and private outpatient treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file. No other relevant records have been identified and are outstanding. Appropriate and necessary examinations were afforded the Veteran, and are adequate for evaluation, as they include needed findings to permit application of the rating schedule and identification of current disability. The Board recognizes that the VA examination reports only discussed the Veteran’s report of an RPG hitting the metal container next to where he was sleeping as this was the only injury he reported at the time of the VA examinations. However, the Veteran also reported in VA treatment records and in a statement that he had a head injury when he hit his head on a Humvee and was dazed for a few minutes and had a headache for maybe the rest of the day. A May 2018 VA physician reviewed the circumstances of that reported injury and determined that there was a mild TBI, but did not identify any residuals as a result of that TBI. Instead, the physician related the Veteran’s symptoms to other complicating factors. In addition, the Board finds probative that the VA examination reports for TBI did not identify any residuals of a TBI. Indeed, the October 2019 VA examiner reviewed all the evidence including the service treatment records which did not mention any blast injuries or exposure. The examiner also noted the Veteran’s reports of headaches, but that the headaches were related to the Veteran’s neck pain and are service connected. Accordingly, remand for an examination to specifically address the Veteran’s report of hitting his head on a Humvee is not required as the medical evidence of record is adequate to evaluate the claim for a compensable rating for residuals of a TBI. As such, VA has satisfied its duty to assist. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Neither the Veteran nor his attorney have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Initial evaluation for TBI The Veteran’s residuals of a TBI have been assigned an initial noncompensable rating under Diagnostic Code 8045. Diagnostic Code 8045 provides for three main areas of dysfunction that may result from TBI and have profound effects on functioning: cognitive, emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. See 38 C.F.R. § 4.124a, Diagnostic Code 8045. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. In a given individual, symptoms may fluctuate in severity from day to day. VA is to evaluate cognitive impairment under the table titled “Evaluation of Cognitive Impairment and Other Residuals of a TBI Not Otherwise Classified.” 38 C.F.R. § 4.124a, Diagnostic Code 8045. Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. Evaluate subjective symptoms that are residuals of TBI, whether or not they are part of cognitive impairment, under the subjective symptoms facet in the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” However, separately evaluate any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere’s disease, even if that diagnosis is based on subjective symptoms, rather than under the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” table. Id. VA is to evaluate emotional/behavioral dysfunction under § 4.130 (Schedule of ratings--mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, evaluate emotional/behavioral symptoms under the criteria in the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” Id. VA is to evaluate physical (including neurological) dysfunctions under an appropriate diagnostic code for that disability. Evaluate each condition separately, as long as the same signs and symptoms are not used to support more than one evaluation and combine under 38 C.F.R. § 4.25 the evaluations for each separately rated condition. The evaluation assigned based on the “Evaluation of Cognitive Impairment and Other Residuals of a TBI Not Otherwise Classified” table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. 38 C.F.R. § 4.124a, Diagnostic Code 8045. The table titled “Evaluation of Cognitive Impairment and Other Residuals of a TBI Not Otherwise Classified” contains 10 important facets of a TBI related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a fifth level, the highest level of impairment, and labeled “total.” The evaluator is to assign the overall percentage evaluation based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. 38 C.F.R. § 4.124a, Diagnostic Code 8045. There may be an overlap of manifestations of conditions evaluated under the TBI Table with manifestations of a comorbid mental or neurologic disorder or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, no more than one evaluation is to be assigned based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, a single evaluation is assigned under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, a separate evaluation is assigned for each condition. Id. at Note 1. A May 2018 VA treatment record shows that the Veteran reported daily headaches and difficulty sleeping with regular use of a CPAP. VA treatment records also note a diagnosis of sleep apnea and sleep impairment associated with his PTSD. The Veteran reported that his worst blast was when he hit his head on the roof of a Humvee. He had no loss of consciousness but was dazed for a couple minutes and maybe a headache for the rest of the day. The physician noted that the severity of the Veteran’s TBI was at most mild. The physician stated that the Veteran’s current symptoms were not likely from the past TBI but likely the result of a combination of factors including medications, sleep, PTSD, drugs, and pain. In July 2018, the Veteran was provided a VA examination for residuals of TBI. He reported that while deployed to Iraq, an RPG hit the metal container next to the one he was sleeping in. His memory of the event was jumbled and remembered waking up confused and mustering to the bunker. He had no memory of headache, nausea, dizziness or other symptoms. The Veteran reported that he had neck pain that worsened over the last five years and had associated occipital headaches. There were no complaints of impairment of memory, attention, concentration, or executive functions. Judgment was normal, social interaction appropriate, and the Veteran was always oriented to person, place, time, and situation. In addition, motor activity was normal, visual spatial orientation was normal, no subjective symptoms, no neurobehavioral effects, the Veteran was able to communicate by spoken and written language and to comprehend spoken and written language, and normal consciousness. The examiner determined that the Veteran did not have subjective symptoms or any mental, physical, or neurological conditions or residuals attributable to TBI. Regarding other pertinent findings, the Veteran’s speech was fluent, facial excursion was full, motor 5/5, reflexes 2+, and gait and tandem gait were normal. The examiner explained that it was likely that that the Veteran, based on his verbal account and combat action badge, suffered a mild TBI. However, the examiner stated that it was medically unlikely that the Veteran’s neck pain or headaches were the result of a TBI but more likely that the headaches were the result of neck pain. In October 2019, the Veteran was provided a VA medical examination. The Veteran again reported that, while deployed in Iraq, an RPG hit the metal container next to where he was sleeping. His memory of the event was jumbled, and he remembered that he woke up dazed and confused. He had no memory of headache, nausea, dizziness or other symptoms. He reported no time lost at work due to neck pain or headaches. The Veteran stated that the symptoms impacted his concentration when they were more severe. He had no vertigo but reported poor balance in general. He felt like he could not walk on one foot without support. He felt more irritable and quicker to anger since his deployment. On neurological examination, the Veteran was alert and oriented, his memory was intact to long-term and 3/3 recall at 5 minutes, naming was intact, repeating was intact, and his language was fluent and articulate. The mental status examination was normal. Coordination was intact and gait was intact. There were no complaints of impairment of memory, attention, concentration, or executive functions. Judgment was normal, social interaction appropriate, and the Veteran was always oriented to person, place, time, and situation. In addition, motor activity was normal, visual spatial orientation was normal, no subjective symptoms, no neurobehavioral effects, the Veteran was able to communicate by spoken and written language and comprehend spoken and written language, and had normal consciousness. The examiner determined that the Veteran did not have subjective symptoms or any mental, physical, or neurological conditions or residuals attributable to TBI. The examiner also opined that it was less likely than not that there were any current TBI residuals. The examiner based that opinion on the mild nature of his TBI with no loss of consciousness at that time and the natural history of mild TBI, which almost always resolves fully within 3 months, in addition to the weight of the medical evidence documented after his blast. It was noted that no TBI symptoms (including headaches, memory less, irritability) or report of the blast were present on post-deployment histories and examinations. The examiner noted occipital headaches in 2006, but that they were not persistent enough to establish continuity with his current headaches. In addition, the examiner found that the Veteran’s memory, concentration, and mood changes, were likely due to PTSD and sleep disorder and may also be some impact of his previous alcohol abuse on his memory and subjective balance complaints. An October 2019 VA examination report for PTSD shows that the examiner opined that the symptoms related to concentration, irritability, and subjective report of short-term memory issues were more likely related to PTSD. Given the evidence of record, the Board finds that a compensable rating for TBI is not warranted. The medical evidence of record does not show identified residuals of a TBI and the service treatment records also do not document any reported residuals as the result of a TBI or head injury. In addition, the October 2019 VA examiner opined that the Veteran’s difficulties with memory, concentration, and mood changes, were likely due to his PTSD and that the Veteran’s headaches were related to his neck pain. Both the Veteran’s PTSD and headaches are service connected and evaluated under the requisite diagnostic codes. Though the Veteran may desire a compensable rating for residuals of a TBI, he is not considered competent to opine whether certain symptoms are attributable to his TBI as opposed to other diagnosed disabilities. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Moreover, the Board assigns greater probative value to the VA examiners’ opinions who have the requisite medical expertise and knowledge, interviewed the Veteran, noted the Veteran’s statements and reviewed the claims file, examined the Veteran, and determined that there were no residuals of a TBI. A preponderance of the evidence is against the claim and an initial compensable rating for TBI residuals is not warranted. Earlier effective date The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2). A specific claim in the form prescribed by the Secretary must be filed for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). Effective March 24, 2015, the law no longer allows for informal claims, but the pertinent regulation allows a claimant to submit an intent to file a claim, and VA may recognize the receipt date of the intent to file a claim as the date of claim so long as VA receives the successfully completed claim form within a year. 38 C.F.R. § 3.155(b) (“Upon receipt of the intent to file a claim, VA will furnish the claimant with the appropriate application form prescribed by the Secretary. If VA receives a complete application form. . . [for the] benefit sought within 1 year of receipt of the intent VA will consider the complete claim filed as of the date the intent to file a claim was received.”). An intent to file a claim can be submitted in one of the following three ways: (i) Saved electronic application; (ii) Written intent on prescribed intent to file a claim form; or (iii) Oral intent communicated to designated VA personnel and recorded in writing. See 38 C.F.R. § 3.155(b)(1). If submitted in writing, the intent to file must be submitted on a standardized form. Id. at 38 C.F.R. § 3.155(b)(1)(ii) (mandating that the claim must be “[w]ritten on an intent to file a claim form. The submission to an agency of original jurisdiction of a signed and dated intent to file a claim, on the form prescribed by the Secretary for that purpose, will be accepted an intent to file a claim.”). If not on a standardized Intent to File form, then any communication is considered a request for an application form for benefits and has no impact on effective dates, which is governed based upon when the formal claim is received. Id. at § 3.155. VA will not recognize more than one intent to file concurrently for the same benefit (e.g., compensation, pension). If an intent to file has not been followed by a complete claim, a subsequent intent to file regarding the same benefit received within 1 year of the prior intent to file will have no effect. If, however, VA receives an intent to file followed by a complete claim and later another intent to file for the same benefit is submitted within 1 year of the previous intent to file, VA will recognize the subsequent intent to file to establish an effective date for any award granted for the next complete claim, provided it is received within 1 year of the subsequent intent to file. 38 C.F.R. § 3.155(b)(6). On June 5, 2017, VA received communication from the Veteran which was interpreted by the RO as an intent to file a claim. In June 2017, the Veteran was provided a notice letter explaining that VA must receive his application for benefits within one year from the date that VA received his intent to file in order to preserve the effective date of June 5, 2017. Thereafter, on June 6, 2018, VA received a faxed application from the Veteran – more than one year after VA received the Veteran’s intent to file on June 5, 2017. Because the Veteran’s application was received by VA more than one year after the intent to file was received by VA, there is no legal basis to award effective dates earlier than June 6, 2018. See 38 C.F.R. § 3.155(b)(6). The preponderance of the evidence is against the claims, and the doctrine of reasonable doubt is not for application. 38 C.F.R. § 3.102. The claims are denied. REASONS FOR REMAND Here, following the requisite development letters pertaining to PTSD and the cervical spine, the Veteran identified treatment with a private psychologist and reported that he was referred for physical therapy and started chiropractic treatment. After reporting such private treatment, the Veteran was not sent any development letter or release forms so that VA could obtain these records. The Board finds that remand is required to give the Veteran the opportunity to complete a release form for VA to obtain the private records or submit his own copies of relevant private records. In addition, concerning the Veteran’s service-connected cervical strain, the October 2019 VA examination report shows that the examiner indicated that passive range of motion testing and nonweight-bearing testing could not be performed or was not medically appropriate, but did not explain why. See 38 C.F.R. § 4.59; Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The Veteran should be provided a new VA examination. The matters are REMANDED for the following action: 1. Contact the Veteran and request properly executed release forms for any private care providers who have treated him for his PTSD and cervical strain. Upon receipt of such, VA must take appropriate action to contact the identified providers and request complete treatment records. The Veteran should be informed that in the alternative he may obtain and submit the records himself. 2. Schedule the Veteran for a VA medical examination for his service-connected cervical strain. The examiner must review the claims file and describe all manifestations of the Veteran’s cervical strain. 3. Then, readjudicate the claims. If any benefit sought remains denied, issue an appropriate supplemental statement of the case and return the appeal to the Board for further consideration. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Seay, 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.