http://www.va.gov/vetapp16/Files4/1634346.

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Citation Nr: 1634346
Decision Date: 08/31/16
DOCKET NO.
)
)

Archive Date: 09/06/16

12-17 519 ) DATE

On appeal from the

Department of Veterans Affairs Regional Office in Lincoln, Nebraska
THE ISSUES
1. Entitlement to an initial disability rating in excess of 30 percent for

2. Entitlement to an initial compensable disability rating for cervical mus

3. Entitlement to an initial compensable disability rating for bruxism.
4. Entitlement to an initial compensable disability rating for headaches.
5. Entitlement to service connection for a traumatic brain injury (TBI).
6. Entitlement to service connection for memory loss.

7. Entitlement to service connection for dizziness, to include as secondary

8. Entitlement to an effective date earlier than December 16, 2011, for the

9. Entitlement to an effective date earlier than December 16, 2011, for the
REPRESENTATION
Appellant represented by: John S. Berry, Attorney
ATTORNEY FOR THE BOARD
R. Costello, Associate Counsel
INTRODUCTION

The Veteran had active duty for training (ACDUTRA) from May 1998 to July 19
These matters come before the Board of Veterans' Appeals (Board) on appeal
In a decision dated in November 2014, the Board granted service connection

The Veteran appealed the Board's November 2014 denial of service connection

The issues of entitlement to higher initial ratings for PTSD, cervical musc
FINDINGS OF FACT

1. The Veteran does not have a current diagnosis of a TBI or TBI residuals.
2. The RO's denial of service connection for PTSD in August 2009 is final.

3. The Veteran did not contact VA with regard to his PTSD claim until he fi

4. The Veteran did not file a claim for entitlement to service connection f
CONCLUSIONS OF LAW

1. The criteria for service connection for a TBI have not been met. 38 U.S.

2. An effective date earlier than December 16, 2011, is not warranted for t

3. An effective date earlier than December 16, 2011, is not warranted for t
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I.

Duty to Notify and Assist

VA's duty to notify was satisfied by letters in September 2011 and February

As to VA's duty to assist, all necessary development has been accomplished.

In April 2015 a letter was sent to the Veteran requesting that he provide s
Also, the Veteran was provided VA examination of his claimed TBI.

The exam

Therefore, VA has satisfied its duties to notify and assist, and there is n
II. Service Connection

The Veteran claims service connection for a TBI, specifically, contending i

Service connection may be established for a disability resulting from disea

In order to prevail on the issue of service connection, generally, there mu

In determining whether service connection is warranted for a disability, VA

As noted above, service treatment records, except for his March 1997 enlist
A September 2008 VA treatment record notes the Veteran had a TBI screening

An October 2011 VA examination in conjunction with the Veteran's memory los

The Veteran was afforded a VA TBI examination in October 2011.

The Veteran

An April 2012 VA psychiatric evaluation found the Veteran had not been diag
An October 2012 VA TBI examination found the Veteran did not have a TBI or

After a full review of the record, the Board finds that the claim must be d

The Board finds the most probative evidence as to whether the Veteran curre

The Board also recognizes statements made by the Veteran related to a diagn

Congress has specifically limited entitlement to service connection for dis

1110, 1131. Without a showing of a current disability in the instant

As the preponderance of the evidence is against the claim, the benefit-of-t

III. Earlier Effective Dates

The Veteran initially applied for service connection for PTSD in February 2

The Veteran's representative submitted a statement in December 2011 discuss

As a threshold matter, a claim must be filed in order for any type of benef

An examination or hospitalization report may be accepted as an informal cla

In general, the effective date of an award based on an original claim for b

The regulation pertaining to new and material evidence provides several exc

In this case, the provisions of 38 C.F.R. 3.156 do not apply because the
The Board has carefully reviewed the record to identify any informal claim

As noted above, the provisions of section 3.157 only apply "[o]nce a formal
Thus, the December 16, 2011, claim represents the first communication from
Thus, in these circumstances, the earliest possible effective date for the

Although the Veteran's attorney submitted a general disagreement with the e

The only other legal method to attack a final decision, such as the August
ORDER
Service connection for a TBI is denied.
An effective date earlier than December 16, 2011, for the award of service
An effective date earlier than December 16, 2011, for the award of service

REMAND

As a general matter, the Board previously remanded the TBI, memory loss, br
PTSD and Cervical Spine
After the Veteran disagreed with the initial ratings assigned for his PTSD
Although a presumption of regularity generally applies to VA processes and
Bruxism and Headaches

November 2015 and December 2015 private treatment records note physical exa
Memory Loss

The Veteran's representative avers for the first time in a July 2015 statem
Dizziness

In regards to the Veteran's service connection claim for dizziness, the Cou
Accordingly, the case is REMANDED for the following action:
1. Provide the Veteran with appropriate notice, pursuant to the VCAA under

2. Attempt to obtain and associate with claims file all VA treatment record

3. Then, schedule the Veteran for VA examinations to assess the current nat

4. Also, schedule the Veteran for a VA examination to assess the current na

5. Also, with regard to the memory loss and dizziness service connection cl

(a) Whether it is at least as likely as not (i.e., a likelihood of 50 perce

(b) Whether it is at least as likely as not (i.e., a likelihood of 50 perce

Note: The term "at least as likely as not" does not mean merely within the
A complete rationale for all opinions must be provided.

Separate opinions

If the examiner cannot provide an opinion without resorting to mere specula

6. After completing the above and any other development deemed necessary, r

The appellant has the right to submit additional evidence and argument on t
______________________________________________
MICHELLE L. KANE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs