Citation Nr: 21025097 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 16-30 617 DATE: April 27, 2021 ORDER Service connection for a traumatic brain injury (TBI) is denied. An effective date of February 7, 2011 for the grant of service connection for posttraumatic stress disorder (PTSD) is granted. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a TBI began during active service or is otherwise related to an in-service injury or disease. 2. The Veteran filed an informal claim for service connection for PTSD on February 7, 2011, which remained pending when he filed his formal claim in February 2013. CONCLUSIONS OF LAW 1. The criteria for service connection for a TBI are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for an effective date of February 7, 2011 for the grant of service connection for PTSD are met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had service in the U.S. Army Reserves, including active service from July 2007 to July 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision. Service connection for a TBI The Veteran contends that he has a current TBI due to a head injury sustained during service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. The Board concludes that the preponderance of the evidence is against finding that a TBI had its onset during active service, or is otherwise related to an in-service injury, event, or disease. First, the Board notes that the Veteran’s report of a head injury during his 2007-2008 deployment has not been consistent. In VA treatment records dated March 2011, he reported experiencing a blow to the head when a hatch closed on him. In June 2011, he reported a head injury when a vehicle he was riding in flipped over and he experienced loss of consciousness. In May 2016, he reported being kicked by another soldier as he exited a vehicle, and that he “saw stars” for about 20 seconds and experienced headaches for two months afterward. Not only are the above reports inconsistent, but the Veteran’s service treatment records for the period in question are negative for any complaints, treatment or diagnoses related to a head injury or any of the reported incidents. In a May 2008 post-deployment health assessment, the Veteran denied experiencing any injuries during his deployment, including head injuries or vehicular accidents. An August 2009 health assessment found that there was no evidence of TBI risk based on the Veteran’s responses, which again included negative responses to vehicular accidents or head injuries. Given the Veteran’s conflicting statements regarding the nature of his head injury in service, as well as the affirmative denials of a head injury or related events contained in his service treatment records, the Board concludes that the overall weight of the evidence is against a finding that an in-service event, injury or disease related to a TBI occurred. Therefore, service connection is not warranted in this case. Earlier effective date for service connection for PTSD Section 5110(a), Title 38, United States Code, provides that “the effective date of an award based on an original claim... of compensation... shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” The implementing regulation, 38 C.F.R. § 3.400, similarly states that the effective date of service connection “will be the date of receipt of the claim or the date entitlement arose, whichever is the later.” The Veteran was granted service connection for PTSD effective February 26, 2013, the day VA received a completed VA Form 21-526, Veterans Application for Compensation or Pension. He contends that he filed a claim for benefits prior to that date, but that this earlier claim was lost by VA. A review of the claims file shows the Veteran hired an attorney (M.B.) in November 2010 to represent him in VA proceedings. In January 2011, M.B. submitted a statement which referenced service connection claims filed in September 2008, and that they wanted to add PTSD to his claims. In February 2011, VA sent a letter to the Veteran advising him that there was no record of a claim submitted in September 2008. VA further advised that it considered his January 2011 statement to be an informal claim, but that he was required to file at least one formal claim using VA Form 21-526 in order for benefits to be paid. See 38 C.F.R. § 3.155(a) (2010) (a formal claim, if not previously filed, must be received within 1 year of an informal claim to maintain the filing date of the informal claim). A copy of that form was included with the letter. However, there is no indication that this letter was sent to M.B. Indeed, a separate February 2011 letter notified the Veteran that M.B. would not be acknowledged as the Veteran’s representative because no VA Form 21-22a, Appointment of Individual as Claimant’s Representative, had been received. However, a review of the claims file shows that a VA Form 21-22a was received by VA on February 7, 2011, two days before VA’s letter. The net result of these circumstances is that VA failed to copy the Veteran’s duly-appointed representative when it advised the Veteran that he had only filed an informal claim and a VA Form 21-526 was still required. Given this due process error, the Board finds that the Veteran’s informal claim was still pending when he filed his formal claim in February 2013. Therefore, the date of claim is February 7, 2011, the date the informal claim was received, and service connection for PTSD should be effective from that date. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shamil Patel, 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.