Citation Nr: 18139651
Decision Date: 09/28/18	Archive Date: 09/28/18

DOCKET NO. 14-24 189A
DATE:	September 28, 2018
ORDER
Entitlement to an effective date prior to July 25, 2008, for the award of service connection for a traumatic brain injury (TBI) is denied. 
FINDING OF FACT
The Veteran is already in receipt of the earliest possible effective date according to VA regulations which is the date VA received a claim that could reasonably be construed as seeking benefits, July 25, 2008. 
CONCLUSION OF LAW
The criteria for entitlement to an effective date prior to July 25, 2008, for the award of service connection for a traumatic brain injury (TBI) have not been met.  38 U.S.C. §§ 5101(a), 5103, 5103A, 5107, 5110 (2012); 38 C.F.R. §§ 3.1(p), 3.102, 3.151, 3.155, 3.156(c), 3.160(c), 3.400 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
In the July 2013 rating decision, the agency of original jurisdiction (AOJ) granted entitlement to service connection for a TBI, and assigned a 10 percent rating, effective July 25, 2008, followed by a 40 percent rating assigned from October 23, 2008, based on updated regulations.  Since the issuance of the statement of the case (SOC), additional evidence has been received by the Board for which a waiver of initial AOJ consideration was provided, in writing received by VA on January 5, 2015.  38 C.F.R. § 20.1304 (2017).    
1. Entitlement to an effective date earlier than July 25, 2008, for the award of service connection for a traumatic brain injury (TBI)
By way of the June 2013 rating decision, the Veteran was granted service connection for a TBI, and an effective date of July 25, 2008 was assigned.  At present, the Veteran asserts that the award of service connection should have an earlier effective date. 
Generally, the effective date of an original award of direct service connection is the day following separation from active service or date entitlement arose if the claim is received within one year after separation from service; otherwise, it is the date of receipt of claim, or date entitlement arose, whichever is later.  See 38 U.S.C. § 5110; 38 C.F.R. § 3.400.  
The Board notes that on March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises.  See 79 Fed. Reg. 57660 (Sept. 25, 2014).  The amendments, however, are only effective for claims filed on or after March 24, 2015.  As the claim in this case was filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015 will be applied.
Under the old regulations, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a Veteran or her representative, may be considered an informal claim.  Such informal claim must identify the benefit sought.  Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution.  If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim.  38 C.F.R. § 3.155(a) (as in effect prior to March 24, 2015).
There is no set form that an informal written claim must take.  All that is required is that the communication indicates an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought.  Rodriguez v. West, 189 F.3d 1351 (1999).
The claims file reflects that the Veteran filed an informal claim for service connection for symptoms encompassing her now diagnosed TBI that was received by the AOJ on July 25, 2008.  This informal claim came in the form of an informal decision review officer (DRO) conference, and a VA form 21-4138, statement that the Veteran submitted recounting her symptoms. 
The Veteran contends that the July 25, 2008 date is not the first time she filed a claim for the symptoms associated with her TBI.  At the Veteran’s December 2014 Board hearing, she testified that after her in-service head injury in 1991, and release from active duty, she returned to her reserve unit where she was briefed on VA claims and reported to fellow soldiers her intentions to file a claim encompassing the symptoms of headache, loss of concentration, dizziness, and memory loss, which have now been diagnosed as encompassing her TBI.   
This account is corroborated by the November 2014 statement submitted by K.R. who reported that she had known the Veteran since 1985, where post-injury she complained of memory issues, insomnia, and difficulty concentrating.  K.R. further stated that not only did she speak with the Veteran about filing a claim for the issues after the VA representatives visited their unit, but she physically went to the Veterans Centers in Charleston and Las Vegas with the Veteran to file her claim, which the Veteran never heard back about. 
Moreover, the Veteran submitted an additional statement from a fellow soldier D.M.H., who knew of the Veteran’s intentions to file her claim following the VA briefing, and had no reason to believe she would not follow through.  Despite this, she also reported that she had no personal knowledge of her submitting any forms which could be construed as a claim for benefits. 
The Board finds that the forestated lay evidence which was submitted by the Veteran and those with personal knowledge, is competent and credible evidence weighing positively on the claim.  38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). 
However, as stated previously, the claims file only includes what the AOJ took to be an informal claim received on July 25, 2008, the date at which entitlement to service connection for a TBI was previously granted.  Here, there is an absence of documentation of the date the original claim was filed, but credible lay testimony attempting to gap-fill the date of claim without any associated documentation.  Despite this, in the absence of any document or explicit communication which VA can construe as a claim, the date of claim is July 25, 2008, which is the first indication in the file that a claim had been submitted. 
Lastly, the Board further emphasizes that the Veteran does not assert that she filed a claim for service connection for a TBI that had been previously denied.  Rather, the Veteran alleged that the original claim submitted in February 1992 as described through lay testimony went unadjudicated by the AOJ until the Veteran submitted an additional claim in 2008 which was eventually granted.  
Although sympathetic to the Veteran’s claim, she is already in receipt of the earliest possible effective date according to VA regulations which is the date VA received a claim that could reasonably be construed as seeking benefits.  There is no legal basis to establish an earlier effective date than the one currently assigned of July 25, 2008.  See 38 C.F.R. § 3.400(b)(2)(ii). 


 
ROBERT C. SCHARNBERGER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J.L. Reid, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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