Citation Nr: 21010462 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 17-62 567 DATE: February 24, 2021 ORDER Entitlement to an effective date earlier than November 25, 2015, for the award of service connection for traumatic brain injury (TBI) is denied. Entitlement to an effective date earlier than November 25, 2015, for the award of service connection for REM sleep behavior dysfunction with somnambulism is denied. Entitlement to an effective date earlier than November 25, 2015, for the award of service connection for post-traumatic headaches is denied. REMANDED Entitlement to an initial rating in excess of 70 percent for TBI is remanded. Entitlement to an initial rating in excess of 60 percent for REM sleep behavior dysfunction with somnambulism is remanded. Entitlement to an initial compensable rating for post-traumatic headaches is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU) is remanded. FINDING OF FACT The Veteran’s original service connection claims were received by VA on November 25, 2015, and the service connection awards for TBI, REM sleep behavior dysfunction with somnambulism, and post-traumatic headaches are established from that date. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date earlier than November 25, 2015, for the award of service connection for traumatic brain injury (TBI) have not been met. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. 2. The criteria for entitlement to an effective date earlier than November 25, 2015, for the award of service connection for REM sleep behavior dysfunction with somnambulism have not been met. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. 3. The criteria for entitlement to an effective date earlier than November 25, 2015, for the award of service connection for post-traumatic headaches have not been met. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDING AND CONCLUSIONS The appellant is a Veteran who served on active duty from December 1982 to September 1983. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions in March 2016 and May 2016 by the Buffalo, New York, Regional Office (RO) of the Department of Veterans Affairs (VA). In September 2019, the Veteran testified at a Board hearing before a Veterans Law Judge who is unavailable to participate in a decision. The transcript of that hearing is of record. In correspondence dated in June 2020 the Veteran declined his right to have an additional Board hearing. Effective Date VA regulations provide that a claim means a written or electronic communication requesting a determination of entitlement or evidencing a belief in entitlement, to a specific benefit under the laws administered by VA submitted on an application form prescribed by the Secretary. 38 C.F.R. § 3.1(p) (as revised effective Feb. 19, 2019). Generally, the date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). VA law provides that the effective date for an award of disability compensation for an initial direct service connection claim shall be the date of receipt of the claim, or the date entitlement arose, whichever is later, unless the claim is received within one year of separation from service. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2). The Veteran contends that effective dates earlier than November 25, 2015, are warranted for the service connection awards for TBI, REM sleep behavior dysfunction with somnambulism, and post-traumatic headaches. He asserts that the effective dates should be from the date of his discharge from service in 1983. The Veteran’s original service connection claims were received by VA on November 25, 2015. Service connection awards for TBI, REM sleep behavior dysfunction with somnambulism, and post-traumatic headaches are established from that date. There is no evidence that an earlier claim was submitted to VA, nor has the Veteran asserted that any such claims were provided. There is no apparent basis in law or fact for an earlier effective date. Therefore, the appeal as to these matters is denied. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 70 percent for TBI is remanded. 2. Entitlement to an initial rating in excess of 60 percent for REM sleep behavior dysfunction with somnambulism is remanded. 3. Entitlement to an initial compensable rating for post-traumatic headaches is remanded. 4. Entitlement to a TDIU is remanded. The Veteran contends that increased ratings and a TDIU are warranted for his service-connected disabilities. Although the service-connected disabilities were addressed by VA examinations in March 2016 and April 2016, in testimony provided in September 2019 he described having increased symptoms and recent VA treatment pertinent to his claims. Additionally, VA treatment records include an April 2017 TBI consultation report noting symptoms that were very severe. It was also noted that the Veteran reported he did not sleepwalk much anymore and that he last walked in his sleep a year earlier. The Board notes that the Veteran provided an application for increased compensation based on unemployability (VA Form 21-8940) in November 2016, but that at his September 2019 hearing he testified that he had been self-employed for the past two years. Therefore, additional development is required for adequate determinations. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any pertinent private medical treatment. Make two requests for the authorized records from, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s VA treatment records for the period from April 2018 to the Present. 3. Request that the Veteran provide additional information pertinent to his TDIU claim, including an updated VA Form 21-8940 and specific information related to his self-employment. 4. Schedule the Veteran for an examination(s) by an appropriate clinician to determine the current severity of his service-connected TBI, REM sleep behavior dysfunction with somnambulism, and post-traumatic headache disabilities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Douglas 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.