Citation Nr: 21015587 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 20-03 634 DATE: March 17, 2021 ORDER Entitlement to an effective date of service connection for traumatic brain injury (TBI) of April 28, 2010, and no earlier, is granted. REMAND Entitlement to a rating in excess of 10 percent for residuals of TBI is remanded. Entitlement to a total disability rating for compensation purposes due to individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran submitted a VA Form 21-0781a, which mentioned a blow to the head resulting in loss of consciousness, that was received on April 28, 2010. Thus, the Board finds that a claim of service connection for TBI was raised on April 28, 2010, but not earlier. CONCLUSION OF LAW The criteria for entitlement to an effective date of service connection for TBI of April 28, 2010, and no earlier, have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.159, 3.400, 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from April 1976 to May 1977. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA). A May 2018 Board decision granted service connection for TBI and remanded service connection for Bell’s Palsy, to include as secondary to TBI, for further development. The agency of original jurisdiction (AOJ) issued a rating decision in August 2018 implementing the grant of service connection for TBI, and assigning a 10 percent rating from March 10, 2011. In October 2019, the Veteran filed a Notice of Disagreement with the rating assigned and the effective date of service connection for TBI. These matters are presently before the Board for review. The Board notes that service connection for central facial palsy (claimed as Bell’s palsy) was granted with a non-compensable rating assigned in a September 2020 rating decision. This is considered a full grant of the benefit sought as to that issue, and it is no longer within the Board’s jurisdiction. The Veteran’s attorney raised the issue of entitlement to a TDIU within the context of the increased rating claim for TBI. See Rice v. Shinseki, 22 Vet. App. 447, 449 (2009). This issue will be addressed in the remand section below. Legal Criteria – Effective Dates Generally, the effective date of an evaluation and award based on an original claim, a claim for increase, or a claim reopened after final disallowance 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); 38 C.F.R. § 3.400. Prior to March 24, 2015, VA accepted informal claims for benefits. See 38 C.F.R. § 3.155(a) (2012). To be considered an informal claim, a communication or action must identify the benefit sought, and request a determination of entitlement or evidence a belief in entitlement to a benefit. 38 C.F.R. §§ 3.1(p), 3.155(a). The mere existence of medical records generally cannot be construed as an informal claim for benefits; rather, there must be some intent by the claimant to apply for a benefit. See Criswell v. Nicholson, 20 Vet. App. 501, 504 (2006). Earlier Effective Date – TBI The Board finds that the most probative evidence is at least in equipoise as to whether an effective date of April 28, 2010, may be assigned for the grant of service connection for TBI. However, no other earlier effective date is warranted. A brief review of the procedural history is necessary. On December 10, 2008, VA received a request to reopen the Veteran’s previously denied claim of service connection for a psychiatric disorder. The Veteran did not mention any physical assault or trauma to the head at that time. During a VA examination in April 2009, the Veteran reported verbal sexual harassment as military sexual trauma (MST) from a supervisor in the Army. He did not mention any physical assault or trauma to the head occurring during military service. He filed a Notice of Disagreement in December 2009. He did not mention any head injuries or trauma at that time. The Veteran’s first submission indicating an instance of head trauma was a VA Form 21-0781a received on April 28, 2010. He stated, among other things, that his first sergeant hit him on the head and when he woke up, he realized he had been raped. A January 2011 rating decision granted service connection for an acquired psychiatric disorder. On March 10, 2011, VA received a VA Form 21-4138 in which the Veteran requested service connection for a TBI. The Board granted service connection for TBI in May 2018. In August 2018, the AOJ implemented a grant of a 10 percent rating for TBI from March 10, 2011, the date of the Veteran’s VA Form 21-4138 requesting service connection for TBI. The Veteran appealed the effective date and assigned rating for TBI to the Board. The Veteran’s attorney submitted a brief in support of the appeal. She asserted, among other things, that “the current effective date of March 10, 2011, for service connection for…TBI residuals is incorrect. The Veteran’s December 10, 2008, claim for benefits for MST should have been read broadly to include the matter of entitlement to benefits for the head wound that he sustained during the sexual assault in which he was knocked unconscious.” After careful review of the record, the Board finds that the most probative evidence is at least in equipoise as to whether an effective date of April 28, 2010, but no earlier, may be assigned for the grant of service connection for TBI. In a Form 21-0781a received on that date, the Veteran clearly mentioned that he was struck on the head during the reported incident of MST. As this document was submitted as part of a claim for service connection, the Board finds that it reasonably raises an informal claim for benefits for head trauma or TBI on April 28, 2010, and, thus, is supportive of an earlier effective date from that point. The Board has considered contentions that the effective date of service connection for TBI should be December 10, 2008, the date of the request to reopen the claim of service connection for an acquired psychiatric disorder. However, the Board does not find such contentions persuasive. Initially, although VA has a duty to broadly construe a claim for benefits, the AOJ cannot adjudicate a claim not raised and cannot develop an unstated contention. See, e.g., Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Again, the Veteran did not mention any head trauma prior to the form received on April 28, 2010, and there is nothing in the record that could reasonably raise such a claim. See 38 C.F.R. § 3.155(a) (2012); MacPhee v. Nicholson, 459 F.3d 1323, 1326 (Fed. Cir. 2006). As such, the Board finds that the preponderance of the evidence is against assigning an effective date prior to April 28, 2010. In sum, an effective date of April 28, 2010, but no earlier, may be assigned for service connection of TBI. 38 U.S.C. § 5107(b). REASONS FOR REMAND The Board finds that the claim of entitlement to a rating in excess of 10 percent for TBI must be remanded for a VA examination and medical opinion. See 38 U.S.C. § 5103A(d). The Board notes that the Veteran’s last VA examination for TBI was in December 2011, almost ten years ago. He has asserted that his disorder has increased in severity since that time. Accordingly, the Board finds that a VA examination documenting the current severity of the Veteran’s TBI disorder is necessary. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Additionally, the attorney has asserted that TBI has resulted in other symptoms not contemplated by the current ratings, including erectile dysfunction and tinnitus reportedly found by a VA examination in December 2011. However, upon review of the examination report, the Board notes that the examiner found no history of erectile dysfunction or tinnitus, and it appears as though tinnitus was only noted as an example of a subjective symptom that could be attributed to a TBI, not a finding that the Veteran had tinnitus. On remand, the examiner is asked to document all symptoms associated with the TBI and describe them for rating purposes. The issue of entitlement to a TDIU is inextricably intertwined with the increased rating claim for TBI. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a “significant impact” upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to assess the current severity of his service-connected TBI residuals. The examiner is asked to describe the disorder in detail and report all signs and symptoms necessary for rating it under relevant criteria. Also, the examiner is asked to review the claims file and to opine as follows: (a) Does the Veteran have a current disorder of tinnitus and/or erectile dysfunction? (b) If the answer to question (a) is “yes”, is it at least as likely as not that the Veteran’s tinnitus or erectile dysfunction is proximately due to, a result of, or aggravated by, the service-connected TBI? A complete rationale should be provided for all opinions. The examiner is asked to consider and discuss relevant lay and medical evidence, to specifically include: • VA examination report in December 2011 • VA treatment records The examiner is reminded that the term “at least as likely as not,” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Reed, 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.