tdiu Good Cue Eed Tdiu

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Citation Nr: 0508122

Decision Date: 03/18/05 Archive Date: 03/30/05

DOCKET NO. 00-11 875A ) DATE

)

)

On appeal from the

Department of Veterans Affairs Medical and Regional Office

Center in Wichita, Kansas

THE ISSUES

1. Entitlement to an effective date prior to March 8, 1996

for the grant of service connection for gastrointestinal

disorders, including the issue of whether a June 1996 rating

decision was clearly and unmistakably erroneous in assigning

an effective date of March 8, 1996 for the grant of service

connection.

2. Entitlement to an effective date prior to March 8, 1995

for the assignment of a total disability rating based on

individual unemployability, including the issue of whether a

September 1996 rating decision was clearly and unmistakably

erroneous in assigning an effective date of March 8, 1996 for

the total rating.

REPRESENTATION

Veteran represented by: Disabled American Veterans

ATTORNEY FOR THE BOARD

D. Hachey, Associate Counsel

INTRODUCTION

The veteran served on active duty from September 1943 to May

1946.

These matters come to the Board of Veterans' Appeals (the

Board) on appeal from August 1999 and October 1999 rating

decisions of the Department of Veterans Affairs (VA) Regional

Office (RO) in Wichita, Kansas. In the August 1999 rating

decision, the RO determined that a June 1996 RO rating

decision was not clearly and unmistakably erroneous in

assigning an effective date of March 8, 1996 for the grant of

service connection for gastrointestinal disorders. In the

October 1999 rating decision, the RO determined that a

September 1996 RO rating decision was not clearly and

unmistakably erroneous in assigning an effective date of

March 8, 1996 for a total rating based on individual

unemployability (TDIU).

The veteran's appeals were previously before the Board in

June 2001, at which time the Board granted an effective date

of March 8, 1995 for the assignment of TDIU, based on the

Board's finding that entitlement to TDIU was factually

ascertainable for one year prior to his March 8, 1996 claim

for an increased rating. The Board denied entitlement to an

effective date prior to March 8, 1995 for TDIU and denied

entitlement to an effective date prior to March 8, 1996 for

the grant of service connection for the gastrointestinal

disorders.

The veteran appealed the Board's June 2001 decision to the

United States Court of Appeals for Veterans Claims (the

Court). As the result of a Joint Motion for Remand, a March

2003 Order of the Court vacated the Board's decision, except

as to the grant of the March 8, 1995 effective date for TDIU,

and remanded the case to the Board for development and

readjudication. The Joint Motion requested that the

veteran's claim be remanded because the Board had not

presented sufficient reasons and bases to support its

conclusion that VA provided the veteran with adequate notice

of the information and evidence necessary to substantiate the

claim. The Joint Motion also sought remand due to the

Board's failure to address the veteran's claims of clear and

unmistakable error (CUE) in the June and September 1996

rating decisions, which granted service connection for

gastrointestinal disorders and entitlement to TDIU,

respectively, and assigned effective dates of March 8, 1996.

Following the March 2003 Order, the Board remanded the case

in October 2003 for the purpose of ensuring compliance with

the notice provisions of the Veterans Claims Assistance Act

of 2000 (VCAA). After the additional development requested

by the Board was accomplished, the veteran's claims were once

again denied in a September 2004 supplemental statement of

the case (SSOC). The case is now once again before the

Board.

FINDINGS OF FACT

1. The veteran's reopened claim for service connection for

gastrointestinal disorders was received by the RO on March 8,

1996.

2. The veteran's initial claim of entitlement to TDIU was

received by the RO on June 19, 1975 and was not acted upon by

VA.

3. As of March 20, 1975, the veteran's service-connected

psychiatric disability rendered him unable to secure or

follow a substantially gainful occupation. There is no

evidence showing that the veteran was totally disabled due to

a service-connected disability prior to this date.

CONCLUSIONS OF LAW

1. The veteran has failed to raise a valid claim of CUE in

the June 1996 rating decision. 38 C.F.R. § 3.105 (2004).

2. There is no basis in law for the assignment of an

effective date earlier than March 8, 1996, for the award of

service connection for stomach disorders. 38 U.S.C.A. § 5110

(West 2002); 38 C.F.R. § 3.400(q)(1)(ii) and ® (2004).

3. An effective date of March 20, 1975 for the award of a

total disability rating based upon individual unemployability

due to service-connected disabilities is warranted. 38

U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400(o)(2) (2004).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The veteran contends that he is entitled to an effective date

in May 1946 for the grant of service connection for his

service-connected gastrointestinal disorders because he has

had those disorders since his separation from service. He

also contends that he is entitled to an effective date in

March 1975 for the assignment of TDIU, because he then had to

retire from employment due to his service-connected

disabilities. In the alternative, he contends that an

effective date in 1989 be established so that following his

death his surviving spouse may be found entitled to

Dependency and Indemnity Compensation based on him having

service-connected disabilities rated at 100 percent for at

least 10 years prior to his death. Cf. 38 U.S.C.A. § 1318

(West 2002); 38 C.F.R. § 3.22 (2004).

In the interest of clarity, the Board will initially discuss

whether this case has been properly developed for appellate

purposes. The relevant law and regulations and factual

background will then be briefly set forth. Finally, the

Board will analyze the veteran's claim and render a decision.

Preliminary Matter

As noted in the Introduction, the Court remanded this case in

March 2003 in part to ensure compliance with the VCAA. In

particular, the February 2003 Court Order was based on a

Joint Motion in which the parties agreed that in its June

2001 decision the Board had not provided adequate reasons and

bases to support its conclusion that VA fulfilled its

obligations under the duty to notify provisions of the VCAA.

The Board in turn remanded this case in October 2003 so that

additional VCAA compliance action could be accomplished.

Pursuant to the Court's remand, the Board will now provide

reasons and bases as to why the VCAA was complied with.

The VCAA

Pursuant to the Court's remand, the Board has considered VA's

duty to inform the veteran of the evidence needed to

substantiate his claim and to assist him in obtaining the

relevant evidence. For reasons expressed in detail below,

the Board concludes that the veteran was provided with a VCAA

notice letter which satisfies the notice requirements of the

VCAA. The RO also assisted the veteran in obtaining certain

evidence with respect to his claim. The content of the VCAA

notice letter and the efforts undertaken by VA to assist the

veteran in gathering evidence with respect to his claim will

be outlined immediately below.

Notice

The VCAA requires VA to notify the claimant and the

claimant's representative, if any, of any information and any

medical or lay evidence not previously provided to VA that is

necessary to substantiate the claim. As part of the notice,

VA is to specifically inform the claimant and the claimant's

representative, if any, of which portion, if any, of the

evidence is to be provided by the claimant and which part, if

any, VA will attempt to obtain on behalf of the claimant.

See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v.

Principi, 16 Vet. App. 183 (2002) [a letter from VA to an

appellant describing evidence potentially helpful to the

appellant but not mentioning who is responsible for obtaining

such evidence did not meet the standard erected by the VCAA].

To comply with the aforementioned VCAA requirements, the RO

must satisfy the following four requirements.

First, the RO must inform the claimant of the information and

evidence not of record that is necessary to substantiate the

claim. See 38 U.S.C.A. § 5103 (West 2002); 38 C.F.R. §

3.159(:((1) (2004). The Board observes that the veteran was

notified by the October 1999 and August 2000 statements of

the case (SOC) and the September 2004 SSOC of the pertinent

law and regulations (including those pertinent to effective

date claims), of the need to submit additional evidence on

his claims, and of the particular deficiencies in the

evidence with respect to his claims.

A VCAA letter dated February 9, 2004, which was sent to the

veteran pursuant to the Board's October 22, 2003 remand,

further apprised the veteran as to the issues on appeal. The

veteran was instructed to submit additional medical evidence,

as well as any additional evidence or information he had

concerning his claim.

Second, the RO must inform the claimant of the information

and evidence the VA will seek to provide. See 38 U.S.C.A. §

5103 (West 2002); 38 C.F.R. § 3.159(:((1) (2004). A letter

was sent to the veteran in February 2004 which advised him

that VA was responsible for providing "[r]elevant records

from any Federal agency" including "medical records from

the military, from VA hospitals (including private facilities

where VA authorized treatment), or from the Social Security

Administration." The veteran was further advised that VA

would obtain "[r]elevant records not held by a Federal

agency" including "records from State or local governments,

private doctors or hospitals, or current or former

employers."

Third, the RO must inform the claimant of the information and

evidence the claimant is expected to provide. See 38

U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 3.159(B)(1) (2004).

The RO informed the veteran in its February 2004 letter that

he was responsible to provide "enough information about

[his] records so that [VA] can request them from the person

or agency that has them." The veteran was also cautioned

that "t's your responsibility to make sure that we

received all requested records that aren't in the possession

of a Federal department or agency" (emphasis in original).

The veteran was also instructed to "complete and sign a VA

Form 21-4142 . . . for each non-VA doctor and medical care

facility that treated you for the disorder." He was asked

to include on the VA Form 21-4142 "the complete name and

address of each doctor and medical facility and the

approximate dates of treatment so that we can request your

records." With regard to VA medical treatment, the veteran

was asked to "provide the name and location of the facility

and the approximate dates of treatment on the enclosed VA

Form 21-4138."

Finally, the RO must request that the veteran provide any

evidence in his possession pertaining to the claim. See 38

U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 3.159(:)(1) (2004).

The February 2004 letter specifically requested that the

veteran provide "any additional information or evidence you

may have pertaining to your claim." This request

substantially complies with the requirements of 38 C.F.R. §

3.159 (:( in that it informed the veteran that he could

submit or identify evidence other than what was specifically

requested by the RO.

The Board additionally notes that even though the February

2004 letter requested a response within 60 days, it also

expressly notified the veteran that he had one year to submit

the requested information and/or evidence, in compliance with

38 U.S.C.A. § 5103(:( [evidence must be received by VA within

one year from the date notice is sent]. The one-year period

has since elapsed.

In short, the record indicates that the veteran received

appropriate notice under 38 U.S.C.A. § 5103 and Quartuccio.

One final comment regarding notice is in order. A review of

the record reveals that the veteran was not provided with

notice of the VCAA prior to the initial adjudication of his

claims in 1999. See Pelegrini v. Principi, 17 Vet. App. 412

(2004). The Board notes, however, that such a situation was

a practical and legal impossibility, because the initial

adjudication of this claim pre-dated the enactment of the

VCAA in November 2000. VA's General Counsel has held that

the failure to provide VCAA notice prior to the enactment of

the VCAA does not constitute error. See VAOGCPREC 7-2004.

VA General Counsel opinions are binding on the Board. See 38

U.S.C.A. § 7104© (West 2002); 38 C.F.R. § 14.507 (2004).

After VCAA notice was provided to the veteran, the claim was

readjudicated and a SSOC was provided to the veteran in

September 2004. Thus, any concerns expressed by the Court in

Pelegrini as to adjudication of the claim before issuance of

a VCAA notice letter have been rectified by the subsequent

readjudication. Therefore, there is no prejudice to the

veteran in proceeding to consider this claim on the merits.

Duty to assist

In general, the VCAA provides that VA shall make reasonable

efforts to assist a claimant in obtaining evidence necessary

to substantiate a claim for VA benefits, unless no reasonable

possibility exists that such assistance would aid in

substantiating the claim. The law provides that the

assistance provided by VA shall include providing a medical

examination or obtaining a medical opinion when such an

examination or opinion is necessary to make a decision on the

claim. An examination is deemed "necessary" if the

evidence of record (lay or medical) includes competent

evidence that the claimant has a current disability, or

persistent or recurrent symptoms of disability; and indicates

that the disability or symptoms may be associated with the

claimant's active military, naval, or air service; but does

not contain sufficient medical evidence for VA to make a

decision on the claim. See 38 U.S.C.A. § 5103A (West 2002);

38 C.F.R. § 3.159 (2004).

The Board finds that all relevant evidence necessary for an

equitable resolution of the issue on appeal has been

identified and obtained, to the extent possible. The

evidence of record includes service medical records as well

as VA and private medical records. The veteran and his

representative have not identified any outstanding evidence.

In short, the Board has carefully considered the provisions

of the VCAA in light of the record on appeal, and for the

reasons expressed above finds that the development of the

claim has been consistent with the provisions of the VCAA.

The Board has the fundamental authority to decide in the

alternative. See Luallen v. Brown, 8 Vet. App. 92, 95-6

(1995), citing Holbrook v. Brown, 8 Vet. App. 91, 92 (1995).

To the extent that the VCAA may be applicable, the Board

finds that the provisions of the VCAA have been appropriately

complied with, as discussed above. For reasons expressed

immediately below, however, the Board believes that the

provisions of the VCAA are not applicable to this case.

In Manning v. Principi, 16 Vet. App. 534 (2002), citing

Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc), the

Court held that the VCAA has no effect on an appeal where the

law, and not the underlying facts or development of the

facts, is dispositive in the matter. As will be discussed

later in this decision, the Board finds that such is the case

with the veteran's earlier effective date claims. Because

the law and not the evidence is dispositive in the instant

case, additional factual development would have no bearing on

the ultimate outcome. Accordingly, VCAA can have no effect

on this appeal. See Dela Cruz, supra; see also Mason v.

Principi, 16 Vet. App. 129, 132 (2002) [VCAA not applicable

"because the law as mandated by statute and not the evidence

is dispositive of the claim"].

With respect to the veteran's CUE claims, the Court has

consistently held that the provisions of the VCAA do not

apply to a claim based on a previous decision having been the

result of CUE. See Livesay, supra. The Court found that an

attempt to obtain benefits based on an allegation of CUE "is

fundamentally different from any other kind of action in the

VA adjudicative process." Livesay, 15 Vet. App. at 178. As

such, an allegation of CUE does not represent a "claim" but

rather is a collateral attack on a final decision. The

provisions of the VCAA, and its implementing regulation, are

not, therefore, applicable to the adjudication of the issue

of CUE in a prior, final decision. A request for an earlier

effective date based on CUE, by its very nature, involves

only the evidence that was before the RO at the time it

rendered the decision in which the veteran is alleging CUE.

As a practical matter, the veteran could not submit any

evidence contemporaneous with the current appeal which could

potentially change the outcome. VA has no further duty,

therefore, to notify the veteran of the evidence needed to

substantiate his claim, or to assist him in obtaining that

evidence, in that no reasonable possibility exists that any

further assistance would aid the veteran in substantiating

the claim. See also Wensch v. Principi, 15 Vet. App. 362,

368 (2001).

The Board adds that general due process concerns have been

satisfied in connection with this appeal. See 38 C.F.R.

§ 3.103 (2004). The veteran engaged the services of a

representative, was provided with ample opportunity to submit

evidence and argument in support of his claim, and was given

the opportunity to present testimony regarding his claims.

The veteran indicated in his substantive appeal that he did

not want a hearing before the Board.

Accordingly, the Board will proceed to a decision on the

merits as to the issue on appeal.

Pertinent Law and Regulations

Effective dates

Unless specifically provided otherwise in the statute, the

effective date of an award based on an original claim for

compensation benefits shall be the date of receipt of the

claim or the date entitlement arose, whichever is later. 38

U.S.C.A. § 5110(a) (West 1991); 38 C.F.R. § 3.400 (2004).

With respect to service connection claims which are granted

following the submission of new and material evidence, such

as the grant of service connection for the veteran's

gastrointestinal disorders, governing regulation provides

that the effective date of the award will be the date of

receipt of the new claim or the date entitlement arose,

whichever is later. 38 C.F.R. § 3.400(q)(1)(ii) and ®

(2004).

In the case of claims for an increased disability rating, to

include claims for TDIU, the effective date assigned is

generally the date of receipt of the claim or date

entitlement arose, whichever is later. 38 C.F.R. §

3.400(o)(1) (2003). If, however, the claim is filed within

one year of the date that the evidence shows that an increase

in disability has occurred, the earliest date as of which an

increase is factually ascertainable will be used (not

necessarily the date of receipt of the evidence). 38 C.F.R.

§ 3.400(o)(2) (2004). See also Harper v. Brown, 10 Vet. App.

125, 126-27 (1997). Evidence contained in the claims file

showing that an increase was ascertainable up to one year

before the claim was filed will be dispositive. See Quarles

v. Derwinski, 3 Vet. App. 129, 135 (1992).

The applicable statutory and regulatory provisions require

that VA look to all communications from the veteran which may

be interpreted as applications or claims--formal and

informal--for benefits. In particular, VA is required to

identify and act on informal claims for benefits. 38

U.S.C.A. § 511(:((2); 38 C.F.R. §§ 3.1(p), 3.155(a); Servello

v. Derwinski, 3 Vet. App. 196, 198-200 (1992).

Claims

A specific claim in the form prescribed by the Secretary of

VA must be filed in order for benefits to be paid or

furnished to any individual under the laws administered by

VA. 38 U.S.C.A. § 5101(a) (West 2002); 38 C.F.R. § 3.151(a)

(2004). The term "claim" or "application" means a formal

or informal communication in writing requesting a

determination of entitlement or evidencing a belief in

entitlement to a benefit. 38 C.F.R. § 3.1(p) (2004).

Any communication or action indicating an intent to apply for

one or more benefits under the laws administered by VA, from

a veteran or his 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. When a claim has been filed which meets the

requirements of 38 C.F.R. §§ 3.151 or 3.152, an informal

request for increase or reopening will be accepted as a

claim. 38 C.F.R. § 3.155 (2004).

CUE

An unappealed decision of the RO or the Board becomes final

and binding and is not subject to revision on the same

factual basis in the absence of CUE. Previous determinations

which are final and binding will be accepted as correct in

the absence of CUE. Where evidence establishes such error,

the prior decision will be reversed or amended. 38 U.S.C.A.

§§ 5109A, 7111 (West 2002); 38 C.F.R. §§ 3.105, 20.1400

(2004).

The Court has defined CUE as "an administrative failure to

apply the correct statutory and regulatory provisions to the

correct and relevant facts. It is not mere misinterpretation

of facts." Oppenheimer v. Derwinski, 1 Vet. App. 370, 372

(1991). Clear and unmistakable errors "are errors that are

undebatable, so that it can be said that reasonable minds

could only conclude that the original decision was fatally

flawed at the time it was made." Russell v. Principi, 3

Vet. App. 310, 313-14 (1992). "To prove the existence of

clear and unmistakable error as set forth in § 3.105(a), the

claimant must show that an outcome-determinative error

occurred, that is, an error that would manifestly change the

outcome of a prior decision." Yates v. West, 213 F.3d 1372,

1374 (Fed. Cir. 2000).

Any claim of CUE must be pled with specificity. Andre v.

West, 14 Vet. App. 7, 10 (2000) (per curium), aff'd sub nom.,

Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002). The

specific allegation must assert more than merely disagreement

with how the facts of the case were weighed or evaluated. In

other words, to present a valid claim of CUE the claimant

cannot simply request that the Board reweigh or reevaluate

the evidence. Crippen v. Brown, 9 Vet. App. 412 (1996). In

order to show that CUE occurred, the evidence must show that

the law was incorrectly applied to the facts as they were

known at the time and that, had the error not occurred, the

decision would have been manifestly different. Bustos v.

West, 179 F.3d 1378 (Fed. Cir. 1999).

When considering a claim of CUE, the determination must be

made based on the record and the law in existence at the time

of the prior, final decision. Damrel v. Brown, 6 Vet. App.

242, 245 (1994) [quoting Russell v. Principi, 3 Vet. App.

310, 313-14 (1992)]; Pierce v. Principi, 240 F.3d 1348 (Fed.

Cir. 2001). The Board observes that the substance of law and

regulations pertaining to CUE have not changed since 1996.

(CONTINUED ON NEXT PAGE)

1. Entitlement to an effective date prior to March 8, 1996

for the grant of service connection for gastrointestinal

disorders, including the issue of whether a June 1996 rating

decision was clearly and unmistakably erroneous in assigning

an effective date of March 8, 1996 for the grant of service

connection.

Factual Background

The veteran filed an initial service connection claim for a

stomach disorder in December 1986. The RO denied the

veteran's claim in a March 1987 rating decision. That

decision was duly appealed, and the veteran's claim was

denied in an April 1989 Board decision. The veteran was

notified of the Board's decision in a letter dated April 28,

1989. He could not appeal to the Court, since his NOD was

filed in April 1987, prior to the November 1988 effective

date of the Veterans Judicial Review Act, Pub. L. No. 100-

687, 102 Stat. 4105 (1988). The Board's decision was

therefore final. See 38 C.F.R. § 20.1100 (2004).

Following the Board's April 1989 decision, the veteran did

not communicate with the RO regarding his stomach or

gastrointestinal disorders until May 8, 1996, at which time

he sought to reopen his previously-denied claim for a stomach

disorder. In support of the claim, the veteran submitted a

medical statement from his treating physician to the effect

that his service-connected anxiety and depression aggravated

his stomach problems.

After obtaining additional private medical records and a VA

examination, in a June 1996 rating decision, the RO found

that the veteran had submitted new and material evidence

supporting his claim for service connection for

gastrointestinal disabilities, reopened the claim and granted

service connection for gastric ulcers with gastritis,

Barrett's esophagus with chronic reflux, post-gastrectomy

secondary to service-connected chronic anxiety reaction with

depression, conversion reaction and cephalgia. A 40 percent

disability rating was assigned, effective March 8, 1996,

reflecting the date the veteran's claim was received by the

RO. The veteran did not appeal the RO's decision.

The veteran filed a claim for an earlier effective date for

the grant of service connection for the gastrointestinal

disorders in August 1999. Included in this claim was the

veteran's contention that the June 1996 rating decision

contained CUE in assigning an effective date of March 8, 1998

for the grant of service connection for gastrointestinal

disorders. In support of this argument, the veteran contends

that service connection should be made effective May 18,

1948, the day following his separation from service. Such a

date is appropriate, the veteran contends, because his

gastrointestinal disabilities have existed since service.

Analysis

The Board wishes to make it clear that it is aware of the

Court's instructions in Fletcher v. Derwinski, 1 Vet. App.

394, 397 (1991), to the effect that a remand by the Court is

not "merely for the purposes of rewriting the opinion so

that it will superficially comply with the "reasons or

bases" requirement of 38 U.S.C.A. § 7104(d)(1). A remand is

meant to entail a critical examination of the justification

for the decision." The Board's analysis has been undertaken

with that obligation in mind. However, based upon a complete

review of the record and for the reasons and bases expressed

immediately below, the Board finds that as a matter of law

the currently assigned effective date of March 8, 1996 is the

earliest date assignable for the grant of service connection

for the veteran's gastrointestinal disabilities.

As discussed in the law and regulations section above, the

assignment of the effective date for the grant of service

connection for the veteran's gastrointestinal disorders

hinges on two factors: the date of receipt of the reopened

claim or the date entitlement arose, whichever is later. See

38 C.F.R. § 3.400(q)(1)(ii) and ® (2004). Thus, the Board

must review the evidence to determine whether a request to

reopen the previously denied claim of service connection for

gastrointestinal disorders was filed after April 28, 1989,

the date of notification of the last final Board decision on

this claim, but before the current effective date of the

award in question, March 8, 1996. See Servello v. Derwinski,

3 Vet. App. 196, 198-200 (1992); see also EF v. Derwinski, 1

Vet. App. 324, 326 (1991) [VA must liberally construe all

documents filed by a claimant in order to determine, or even

to infer, what claims have been filed].

Review of the claims file reveals that the veteran contacted

the RO on only three occasions between the Board's April 1999

decision and his request to reopen in March 1996. In July

1991 the veteran responded to an inquiry from the RO as to

his spouse's social security number; in January 1993 he

responded to another inquiry from the RO as to the status of

his dependents; and in February 1995, he requested a copy of

his service medical records.

These three contacts cannot suffice as a reopened claim for

service connection for gastrointestinal disorders, formal or

informal. In Brannon v. West, 12 Vet. App. 32 (1998), the

Court observed that while the VA must interpret a claimant's

submissions broadly, it is not required to conjure up issues

that were not raised by the claimant. The Court has further

held that VA is not held to a standard of prognostication

when determining what issues are presented. See Talbert v.

Brown, 7 Vet. App. 352, 356- 57; Allin v. Brown, 6 Vet. App.

207, 213 (1994) "[t]here must be some indication . . . that

[a claimant] wishes to raise a particular issue . . . The

indication need not be express or highly detailed; it must

only reasonably raise the issue." [These cases involve the

Board, not an RO, but it is clear that the reasoning employed

by the Court applies to all levels within VA. Cf. EF v.

Derwinski, 1 Vet. App. 324, 326 (1991).]

Thus, there is nothing which could be reasonably construed as

a formal or informal claim for service connection prior to

March 8, 1996, as the records reflecting these three contacts

contain no reference to the veteran's stomach disorder or to

a desire for service connection. The Board has identified no

correspondence or other communication from the veteran which

would serve as a claim for service connection after April

1989 and before March 1996, and the veteran has pointed to

none. Accordingly, the March 8, 1996 effective date for

service connection for a gastrointestinal disorder was

correctly assigned and the veteran's appeal is denied as to

that issue.

In reaching this conclusion, the Board has considered the

veteran's contention that his gastrointestinal disorders have

existed since service and that as a result service connection

should be made effective May 18, 1946 (the day after his

separation from service). As noted above, however, in cases

involving a reopened claim, the effective date of service

connection is not solely contingent upon the date entitlement

arose (i.e. the date the veteran first experienced a

gastrointestinal disorder). Rather, the effective date

assigned is the later of the date of receipt of the reopened

claim or the date entitlement arose, whichever is later. See

38 C.F.R. § 3.400(q)(1)(ii) and ® (2004). Therefore,

assuming arguendo that the veteran's gastrointestinal

disorders began during his time in service, the earliest

effective date of service connection would still be the date

his reopened claim was received. Review of the record

reveals that the veteran's reopened claim for service

connection for gastrointestinal disorders was received on

March 8, 1996. Therefore, this date was properly assigned by

the RO as the effective date for service connection.

It appears that the veteran is contending that because he had

gastrointestinal disabilities since service, he should be

compensated for that entire time. This amounts to an

argument couched in equity. However, the Board is bound by

the law and is without authority to grant benefits on an

equitable basis. See 38 U.S.C.A. §§ 503, 7104; Harvey v.

Brown, 6 Vet. App. 416, 425 (1994). The Board further

observes that "no equities, no matter how compelling, can

create a right to payment out of the United States Treasury

which has not been provided for by Congress." Smith (Edward

F.) v. Derwinski, 2 Vet. App. 429, 432-33 (1992) [citing

Office of Personnel Management v. Richmond, 496 U.S. 414, 426

(1990)]. Thus, while the Board does not dispute that the

veteran experienced gastrointestinal disabilities prior to

the effective date of service connection which has been

assigned above, it is constrained to apply the law as

Congress has created it and cannot extend benefits out of

sympathy for a particular claimant.

The Board has also considered the veteran's contention that

the June 1996 rating decision contained CUE in assigning an

effective date of March 8, 1996 for service connection for

his gastrointestinal disabilities. The arguments proffered

by the veteran and his representative with regard to the CUE

claim essentially mirror those contained in the non-CUE

aspect of the veteran's claim, namely that service connection

should be made effective the day after the veteran left

service, as the veteran claims his gastrointestinal problems

began on active duty.

In furtherance of his CUE claim, the veteran has not

referenced any facts that were not considered by the RO in

arriving at the assigned effective date, or any pertinent

statutory or regulatory provisions that were incorrectly

applied to the facts, which is required in order to establish

a valid claim of CUE. See Damrel v. Brown, 6 Vet. App. 242

(1994), citing Russell v. Principi, 3 Vet. App. 310 (1992).

In short, the veteran has not pled with any degree of

specificity any error of law or fact that allegedly occurred,

as required by law. See Andre, 14 Vet. App. at 10. The

Board finds, therefore, that the veteran has failed to raise

a valid claim of CUE in the October 1996 rating decision.

His claim of CUE in the October 1996 rating decision is,

therefore, denied as a matter of law. See Luallen v. Brown,

8 Vet. App. 92, 96 (1995) [if the veteran fails to plead a

valid claim of CUE, his claim should be denied as a matter of

law].

2. Entitlement to an effective date prior to March 8, 1995

for the assignment of a total disability rating based on

individual unemployability, including the issue of whether a

September 1996 rating decision was clearly and unmistakably

erroneous in assigning an effective date of March 8, 1996 for

the total rating.

Factual Background

The veteran was initially granted service connection for

cephalagia in a June 1946 rating decision; a 10 percent

disability rating was assigned. A September 1970 rating

decision recharacterized the veteran's disability to

psychoneurosis and conversion reaction with cephalagia and

continued the 10 percent rating. The assigned rating was

subsequently increased to 30 percent in a November 1970

rating decision. The assigned rating was increased to 50

percent in a February 1975 rating decision which again

recharacterized the veteran's service-connected psychiatric

disability, this time to "chronic anxiety reaction, with

depression, conversion reaction with cephalagia."

The evidence of record reveals that the veteran initially

submitted a specific claim for TDIU which was received by the

RO on June 19, 1975. Although a September 1975 rating

decision denied an increased rating for the veteran's service

connected anxiety reaction with depression, this decision did

not specifically address the TDIU claim.

The record reveals that in the years prior to his June 1975

TDIU claim, the veteran was receiving weekly VA psychiatric

treatment. The records from this treatment reflect that the

veteran suffered from a very high, and nearly continual,

level of anxiety and nervousness. The veteran also

complained of memory lapses and showed regular agitation and

tension regarding his business. In particular, the veteran

complained of problems with anger and intense conflict in

interpersonal relationships, including those with his

employees, clients, and family members. The use of multiple

prescription medications to treat the veteran's psychiatric

problems was also noted.

Also of record at the time of the veteran's June 1975 TDIU

claim is the report of a VA psychiatric examination dated in

December 1974. On mental status examination, the veteran

exhibited a flat affect and was found to be agitated and

tense. He was also found to have poor insight and judgment

and appeared discouraged and despondent. The examiner noted

that the veteran does not cope with situational stress very

well and gets quite depressed and will occasionally have

crying spells. Also noted was the veteran's extremely short

temper and the fact that he was easily irritable and

frustrated. The veteran also complained of poor peer

relationships, sleep disturbance, and frequently wondering if

life is worth living. The veteran also reported that he was

unable to work very much anymore due to his psychiatric

symptomatology and that his condition, especially his poor

peer relationships, were ruining what little business he had

left. Overall, the examiner noted that the veteran's

condition was gradually deteriorating and that his level of

incapacity was marked. The examiner also reported that the

veteran's "ability to continue functioning in his own

business is rapidly diminishing . . . [h]e is functioning on

a marginal basis now" and his "social and economic

adjustments are marginal".

Submitted with the June 1975 TDIU claim was a letter from the

veteran's private physician, Dr. H.J.W. Dr. W. stated that

on March 20, 1975 he informed the veteran that "he should

totally retire, effective immediately, due to the fact that

he is longer able to continue in his business or . . . any

other business . . . due to extreme nervousness, anxiety, and

depression." Pursuant to his physician's advice, the

veteran subsequently sold his private investigation business

and permanently retired. He was 49 years old at the time.

Also of record is the report of a September 1975 VA

psychiatric examination. During this examination, the

veteran voiced complaints similar to those found in his prior

treatment records and examination reports including feelings

of severe tension, depression, and nervousness to the point

of not wishing to live at times. He also reported several

episodes of memory loss and increased feelings of anger and

difficulty in controlling his temper. The veteran noted that

he had retired to due his psychiatric symptomatology in March

1975.

A letter dated in June 1975 was also received from J.V., the

veteran's former secretary, who stated that because of the

veteran's outbursts of anger he "has become almost

unbearable to work with . . . there have been a lot of times

that [the veteran] has caused me to cry because of his

actions and tantrums." J.V. also noted that the veteran

"has gone into fits of rage over minor incidents any number

of times." She also noted that the veteran's anger problems

cost his private investigation firm " a good deal of

business because of the way he talks to people on the

telephone . . . [t]here are times when he becomes rude to the

point of being insulting." J.V. further reported that on

several occasions she witnessed the veteran break down and

cry on the job. She also noted that she was no longer

employed by the veteran because he has "broken down and on

the advice of his doctor . . . retired completely from

business."

As has been described elsewhere in this decision, the veteran

submitted another claim of entitlement to TDIU in March 1996;

the RO granted TDIU and assigned an effective date of March

8, 1996; the veteran appealed; and the Board granted an

effective date of March 8, 1995. That aspect of the Board's

June 2001 decision was not vacated by the Court.

Analysis

The veteran is seeking an effective date of March 1975 for

the grant of TDIU. He essentially claims that this date is

appropriate because he stopped working due to his service

connected psychiatric disabilities at that time.

As noted in the law and regulations section above, the

effective date of a TDIU claim is generally the date of

receipt of claim or the date entitlement arose, whichever is

later. 38 C.F.R. § 3.400(o)(1) (2004). Under the provisions

of 38 C.F.R. § 3.400(o)(2), however, if the claim is filed

within one year of the date that the evidence shows that an

increase in disability has occurred, the effective date will

be the earliest date as of which an increase is factually

ascertainable.

In the instant case, the veteran filed an initial TDIU claim

in June 1975. The veteran's claim was presented via a letter

signed by his accredited representative, and specifically

stated that it was an "application for . . . benefits due to

unemployability as a result of [the veteran's ] service

connected disabilities." The letter was received on June

19, 1975. Moreover, received on June 29, 1975 was a VA Form

21-527, Income - Net Worth and Employment Statement. In item

10, "Did you have to quit your last job or self-employment

on account of your physical condition?", the veteran

responded "Yes" "Because of service connected disab." On

the reverse side of the form were the words "Application for

unemployability due to service connected disability." The

date the veteran claimed to have become totally disabled was

March 20, 1975 [item 4].

This TDIU claim, however, was not acted on by the RO. In a

rating decision dated September 24, 1975, the RO denied an

increased rating for the veteran's service-connected

psychiatric disability. In October 1975, the RO wrote to the

veteran, indicating that "the evidence does not warrant any

change in your prior evaluation." This was clearly meant to

signal a denial of the increased rating claim. There is no

indication that the RO considered the TDIU claim. Based upon

this unacted-upon TDIU claim, the Board finds that the claim

for TDIU was pending since June 19, 1975.

The Board must therefore review the record to determine if

the veteran was unemployable due to his service-connected

disabilities as early as June 19, 1975 (the day his TDIU

claim was received) or up to one year prior to that date.

See 38 C.F.R. § 3.400, 4.16 (2004).

After a careful review of the record, the Board finds that

the veteran has been unemployable to due his service

connected psychiatric disability since March 20, 1975. This

is the date which was provided by the veteran himself in item

4 of the VA Form 21-527 he filed later in June 1975. In

support of this finding, the Board notes that the veteran's

private physician, Dr. W, advised the veteran on that date

that that he was no longer able to continue in his business

or any other due to extreme nervousness, anxiety, and

depression. No contradictory medical opinion has been

associated with the claims file. The record reflects that

the veteran followed his physician's advice and sold his

private investigation business and permanently retired. As

noted above, the veteran was only 49 years old at the time.

The remainder of the medical and other evidence of record

appears to be consistent with Dr. W's conclusion, and it

reflects a significant deterioration in both the veteran's

business and his psychological well being in the years

leading up to March 1975. In particular, VA treatment

records in the years prior to the veteran's retirement reveal

that the veteran was suffering from a near continual

extremely high level of nervousness and anxiety. These

records also reflect the veteran's acute problems with anger

and the intense conflict in his interpersonal relationships,

including those with his employees, clients, and family

members.

The December 1974 VA psychiatric examination, conducted only

four months before the veteran stopped working, also confirms

his severe level of impairment. During this examination, the

veteran particularly noted that he was unable to work much

anymore due to his severe anxiety, nervousness and

depression. He also noted that his poor peer relationships,

irritability and outbursts of anger were ruining what little

business he had left. The veteran's reports of memory loss

and crying spells coupled with the examiner's finding that

the veteran was despondent and unable to cope with stress

also indicate his growing inability to work. The Board also

finds significant the fact that the examiner found the

veteran to be functioning on only a marginal level and that

his ability to continue functioning in his job was rapidly

diminishing.

The non-medical evidence also reflects the impact of the

veteran's psychological disability on his ability to work.

Of note is the June 1975 letter from J.V., the veteran's

former secretary, which confirms the severity of the

veteran's outbursts of anger and inability to maintain

professional relationships. She specifically reported that

the veteran was "almost unbearable to work with" and caused

her to cry on several occasions due to his tantrums. She

also noted that he treated clients of the business no better,

and reported that his fits of rage, rudeness, and insulting

behavior had caused the business to greatly suffer. She

further reported witnessing the veteran break down crying at

the office on several occasions.

In short, the record reveals that the veteran stopped working

in March 1975 due to his service-connected psychiatric

disability. This decision was made on the advice of the

veteran's private physician who advised him that he was no

longer able to work due to extreme nervousness, anxiety, and

depression. The other evidence of record supports this

conclusion and reflects the veteran's severe problems with

anger and maintaining interpersonal relationships.

Therefore, the Board finds that the veteran is entitled to

TDIU effective March 20, 1975, the date the veteran was

advised to (and did) stop working. Although the veteran's

service-connected psychiatric disability was undoubtedly

severe prior to this date, the record reflects that he was

still working before March 20, 1975. The veteran does not

contend otherwise, and indeed as discussed above he himself

has pointed to March 20, 1975.

Accordingly, the Board holds that the evidence supports a

grant of a total disability rating based upon individual

unemployability due to service-connected disabilities

effective March 20, 1975.

Because the Board has granted an effective date of March 20,

1975 for the grant of TDIU, the veteran's claim of CUE in the

September 1996 has been rendered moot, as the veteran has

been granted the benefit sought on appeal. In any event, as

discussed with respect to the first issue on appeal, the

veteran has not presented a specific, actionable CUE claim in

any event. See Andre, supra. Mere disagreement with a VA

decision does not amount to a valid claim of CUE. See

Crippen, supra.

In summary, for reasons and based expressed above, the Board

concludes that an effective date of March 20, 1975 is

warranted for TDIU. The benefit sought on appeal is

accordingly granted.

ORDER

An effective date earlier than March 8, 1996, for the grant

of service connection for gastrointestinal disorders is

denied.

An effective date of March 20, 1975, for the award of a total

disability rating based upon individual unemployability due

to service-connected disabilities is granted, subject to the

laws and regulations governing the award of monetary

benefits.

____________________________________________

Barry F. Bohan

Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

[carlie]

Another Cue Granted for EED, hope these help someone.

carlie

Citation Nr: 0325724

Decision Date: 09/30/03 Archive Date: 10/03/03

DOCKET NO. 02-07 070 ) DATE

)

)

On appeal from the

Department of Veterans Affairs Regional Office in New

Orleans, Louisiana

THE ISSUES

1. Entitlement to an effective date earlier than November

20, 2000, for the grant of service connection for chronic

muscle tension headaches.

2. Entitlement to an initial evaluation in excess of

10 percent for chronic muscle tension headaches.

REPRESENTATION

Appellant represented by: The American Legion

ATTORNEY FOR THE BOARD

A. P. Simpson, Counsel

INTRODUCTION

The veteran served on active duty from June 1973 to August

1974.

This case comes before the Board of Veterans' Appeals (the

Board) on appeal from a February 2002 rating decision of the

New Orleans, Louisiana, Department of Veterans Affairs (VA)

Regional Office (RO). The RO granted service connection for

chronic muscle tension headaches and assigned a 10 percent

evaluation, effective November 20, 2000. The veteran has

appealed the assignment of both the 10 percent evaluation and

the effective date.

FINDINGS OF FACT

1. The veteran's March 27, 1997 VA Form 21-526, Veteran's

Application for Compensation or Pension, included a claim for

service connection for headaches.

2. The record reflects that this claim has remained pending,

as the RO did not adjudicate that claim in the July 1997

rating decision.

3. Chronic muscle tension headaches are manifested by daily

headaches with dizziness and lightheadedness.

CONCLUSIONS OF LAW

1. The criteria for an effective date of March 27, 1997, for

the grant of service connection for chronic muscle tension

headaches have been met. 38 U.S.C.A. §§ 5103, 5103A, 5107,

5110 (West 2002); 38 C.F.R. §§ 3.155, 3.160 (2003).

2. The criteria for an initial evaluation in excess of

10 percent for chronic muscle tension headaches have not been

met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002);

38 C.F.R. § 4.124a, Diagnostic Code 8100 (2003).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duty to Notify and Assist

There has been a significant change in the law during the

pendency of this appeal. On November 9, 2000, the President

signed into law the Veterans Claims Assistance Act of 2000

(VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law

redefines the obligations of VA with respect to the duty to

assist and includes an enhanced duty to notify a claimant as

to the information and evidence necessary to substantiate a

claim for VA benefits.

This change in the law is applicable to all claims filed on

or after the date of enactment of the VCAA or filed before

the date of enactment and not yet final as of that date.

38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126

(West 2002); see Karnas v. Derwinski, 1 Vet. App. 308, 312-13

(1991); cf. Dyment v. Principi, 287 F.3d. 1377 (Fed. Cir.

2002) (holding that only section four of the VCAA, amending

38 U.S.C. § 5107, was intended to have retroactive effect).

The final rule implementing the VCAA was published on August

29, 2001, see 66 Fed. Reg. 45,620, et seq. (Aug. 29, 2001),

and is codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and

3.326(a) (2003). These regulations, likewise, apply to any

claim for benefits received by VA on or after November 9,

2000, as well as to any claim filed before that date but not

decided by the VA as of that date.

The Board notes that it will not address whether the VCAA was

met as to the claim for entitlement to an earlier effective

date, as the Board is granting the earliest effective date

available for the grant of service connection for chronic

muscle tension headaches, which is the same date that the

veteran has stated he is seeking. Thus, this is a full grant

of this particular benefit.

In this case, VA's duties have been fulfilled to the extent

possible. First, VA must notify the veteran of evidence and

information necessary to substantiate his claim. 38 U.S.C.A.

§ 5103(a) (West 2002); 38 C.F.R. § 3.159(:( (2003);

Quartuccio v. Principi, 16 Vet. App. 183 (2002). The veteran

was notified of the information necessary to substantiate his

claim for an initial evaluation in excess of 10 percent for

chronic muscle tension headaches by means of the discussions

in the February 2002 rating decision and the May 2002

statement of the case. Specifically, he was provided with

the provisions of the regulation under which his disability

is evaluated. This informed him that in order to warrant the

next higher evaluation, here 30 percent, the evidence would

need to show that he had headaches with characteristic

prostrating attacks occurring on an average of once a month

over the last several months. This also informed him of the

symptomatology needed for a 50 percent evaluation, the

highest evaluation available. Based on the above, the Board

finds that VA has no outstanding duty to inform him that any

additional information or evidence is needed to substantiate

his claim.

Second, VA must inform the veteran of which information and

evidence he was to provide to VA and which information and

evidence VA would attempt to obtain on his behalf. In a

September 2001 letter, the RO informed the veteran that it

must make reasonable efforts to help him get evidence

necessary to support his claim. The RO stated that if there

was evidence that the veteran wanted to have considered, he

would need to provide enough information about those records

so that VA could then request them from the person or agency

that has the records. The RO attached VA Forms 21-4142,

Authorization and Consent to Release Information to VA, to

the September 2001 letter and told the veteran that he should

complete one form for each doctor or hospital from where he

had received treatment and that VA would seek to obtain these

records. The RO noted that the veteran could assist VA with

his claim by obtaining the records himself and submitting

them.

Third, VA must make reasonable efforts to assist the claimant

in obtaining evidence necessary to substantiate the claim for

the benefit sought, unless no reasonable possibility exists

that such assistance would aid in substantiating the claim.

38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159©, (d)

(2003). Here, the RO had the veteran examined and requested

a medical opinion. The veteran submitted VA treatment

records. He has not alleged having received any additional

treatment for his headaches, and thus VA was not under a duty

to request treatment records either from VA or a private

facility.

For the reasons stated above, the Board finds that the

requirements of the VCAA have been met.

II. Decision

Service medical records show that the veteran sustained an

injury above the left eye in September 1973. That same

month, the veteran was seen with complaints of headaches. At

separation in August 1974, he complained of occasional

severe headaches, which were treated with aspirin with good

results.

The veteran submitted an original claim for compensation on

March 27, 1997. In his application, the veteran stated he

had sustained an injury on the left side of his face and

currently had blurred vision, dizzy spells, and headaches.

In a July 1997 rating decision, the RO granted service

connection for a sutured laceration scar above the left eye

and denied service connection for (1) residuals of a left eye

injury and (2) myopia. The veteran was notified of these

determinations in August 1997.

On November 20, 2000, the veteran submitted a VA Form 21-

4138, Statement in Support of Claim, stating that his

service-connected sutured laceration scar above the left eye

had worsened. In a December 2000 VA Form 21-4138, the

veteran stated that in seeking an increased evaluation for

his service-connected disability that he was claiming an eye

condition, headaches, and loss of memory as secondary to the

service-connected disability.

A January 2001 VA examination report shows that the veteran

stated that he had developed headaches about one month after

the head injury. He noted that the headaches had gotten

progressively worse. He described the headaches as having a

throbbing pain, sometimes unilaterally in the left frontal,

frontotemporal, and left occipital region. The veteran

reported that most of the time the headache was on the left

side but that, at times, it was bilateral. When asked to

rate the severity of the headaches on a scale from one to 10

with 10 being the worst, the veteran stated that his

headaches fell between a 7 or an 8 but could be as severe as

a 10. He stated that his headaches were associated with

dizziness/lightheadedness. He denied any nausea or vomiting.

Cerebellar examination revealed no dysmetria on finger-nose-

finger or heel-to-shin test on the left side. The examiner

entered a diagnosis of post-traumatic chronic muscle tension

headaches.

In a February 2001 VA Form 21-4138, the veteran stated that

he had developed headaches in service after the injury to his

left eye area but that his headaches had increased with

prolonged kneeling and bending. He added that his headaches

occurred daily.

A January 2002 VA examination report shows that the examiner

who had conducted the January 2001 examination interviewed

the veteran again as to his headaches. The veteran reported

that he used to work for a finance officer and would be in

front of a computer for 12 to 13 hours a day, which was a

strain to his eyes. He stated that when he would work on the

computer for that long, he would develop headaches. He noted

that his headaches usually occurred when he was under stress

and working on the computer.

In the veteran's substantive appeal, submitted in June 2002,

the veteran stated that his headaches had been frequent and

averaged at least once a month over the last several months.

A. Earlier effective date

The veteran asserts that he warrants an effective date of

March 27, 1997, for the grant of service connection chronic

muscle tension headaches because his headaches resulted from

the injury in service and that was the date that service

connection was granted for his suture laceration.

The assignment of effective dates of awards is generally

governed by 38 U.S.C.A. § 5110 (West 2002) and 38 C.F.R. §

3.400 (2003). Unless specifically provided otherwise, 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." 38 U.S.C.A. § 5110(a) (West 2002).

The implementing regulation clarifies this to mean that the

effective date of an award of compensation based on an

original claim will be, "[d]ate of receipt of claim or date

entitlement arose, whichever is later." 38 C.F.R. § 3.400.

In the January 2003 informal hearing presentation, the

veteran's representative asserted that the veteran had

complained of headaches in his March 27, 1997, claim for

compensation and that no neurological examination had been

requested. The representative noted that the July 1997

rating decision made no mention of headaches. Thus, he

stated that the claim for service connection for headaches

had been pending since March 27, 1997.

The Board has carefully reviewed the evidence of record and

finds that the evidence supports the grant of an effective

date of March 27, 1997, for the award of service connection

for chronic muscle tension headaches. As correctly pointed

out by the veteran's representative, the veteran clearly

stated that he had developed headaches as a result of the

inservice head injury in the March 27, 1997, VA Form 21-526.

Such statement on a VA Form 21-526 is not an informal claim,

but a formal claim, which has remained pending since the

submission of the March 27, 1997, application, as the claim

had not been adjudicated from that time until February 2002.

Thus, applying 38 U.S.C.A. § 5110(a) and 38 C.F.R. § 3.400 to

the facts before the Board, the Board finds that an effective

date of March 27, 1997, is warranted for the grant of service

connection for chronic muscle tension headaches.

The Board has determined, however, that an effective date

prior to March 27, 1997, for the grant of service connection

for chronic muscle tension headaches is legally precluded.

Regardless, the veteran has clearly stated that he was

seeking an effective date of March 27, 1997, for the award of

service connection for chronic muscle tension headaches.

Therefore, the claim has been granted in full, and the Board

need not address why an earlier effective date is not

available.

B. Increased evaluation

The veteran asserts that his headaches are worse than the

current 10 percent evaluation contemplates.

Under the applicable criteria, disability evaluations are

determined by the application of a schedule of ratings which

is based on average impairment of earning capacity. 38

U.S.C.A. § 1155; 38 C.F.R. Part 4 (2003). Separate

diagnostic codes identify the various disabilities. VA has a

duty to acknowledge and consider all regulations which are

potentially applicable through the assertions and issues

raised in the record, and to explain the reasons and bases

for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589

(1991).

The veteran is contesting the disability evaluation that was

assigned following the grant of service connection for

chronic muscle tension headaches. This matter therefore is

to be distinguished from one in which a claim for an

increased rating of a disability has been filed after a grant

of service connection. The United States Court of Appeals

for Veterans Claims has observed that in the latter instance,

evidence of the present level of the disability is of primary

concern, Fenderson v. West, 12 Vet. App. 119, 126 (1999)

(citing Francisco v. Brown, 7 Vet. App. 55 (1994)), and that

as to the original assignment of a disability evaluation, VA

must address all evidence that was of record from the date

the filing of the claim on which service connection was

granted (or from other applicable effective date). See

Fenderson, 12 Vet. App. at 126-127. Accordingly, the

evidence pertaining to an original evaluation might require

the issuance of separate, or "staged," evaluations of the

disability based on the facts shown to exist during the

separate periods of time. Id.

The RO has rated the veteran's service-connected chronic

muscle tension headaches by analogy to migraine headaches.

Migraines with characteristic prostrating attacks averaging

one in two months over the last several months warrant a 10

percent disability evaluation. 38 C.F.R. § 4.124a,

Diagnostic Code 8100 (2003). A 30 percent evaluation

requires more frequent prostrating attacks (about once a

month), and a 50 percent evaluation requires very frequent

completely prostrating and prolonged attacks productive of

severe economic inadaptability. Id.

When all the evidence is assembled, VA is responsible for

determining whether the evidence supports the claim or is in

relative equipoise, with the veteran prevailing in either

event, or whether a preponderance of the evidence is against

the claim, in which case, the claim is denied. Gilbert v.

Derwinski, 1 Vet. App. 49 (1990).

After having carefully reviewed the evidence of record, the

Board finds that the preponderance of the evidence is against

an initial evaluation in excess of 10 percent for chronic

muscle tension headaches. During service, the veteran

complained of headaches, for which he took aspirin and had

good results. In January 2001, the veteran stated that his

headaches had a throbbing pain in the frontal region. He

rated his headaches as a 7 or 8 on a scale from one to 10

with 10 being the worst. He noted that his headaches could

be as bad as a 10 and that he sometimes had dizziness/light-

headedness. He has denied nausea or vomiting. The veteran

has stated that his headaches occur daily. In June 2002, the

veteran asserted that he had headaches that averaged at least

a month over the last several months. The Board finds that

the above-described symptomatology is indicative of no more

than a 10 percent evaluation for chronic muscle tension

headaches. See 38 C.F.R. § 4.124a, Diagnostic Code 8100. A

10 percent evaluation is warranted when the characteristic

prostrating attacks average one in two months over the last

several months.

The Board must now consider whether an evaluation in excess

of 10 percent is warranted for the service-connected chronic

muscle tension headaches. The Board does not find that the

evidence establishes that the veteran has prostrating attacks

that consistently occur once a month. See id. A prostrating

attack means an attack that is incapacitating. The veteran

has not described his headaches as incapacitating him;

rather, he has asserted that he has daily headaches. As

noted above, the veteran's service-connected chronic muscle

tension headaches are rated by analogy to migraine headaches.

The RO granted the 10 percent evaluation on the basis that

the veteran has daily headaches. In order for a 30 percent

evaluation to be warranted, the veteran would need to have an

incapacitating headache about once a month. There is no

showing of such in the record, even based upon the veteran's

report of his headaches. The veteran has denied any nausea

or vomiting associated with his headaches. Based upon the

above, the Board finds that the veteran's headaches are no

more than 10 percent disabling. See 38 C.F.R. § 4.124a,

Diagnostic Code 8100.

The veteran is competent to report his symptoms; however,

even accepting his statements as true, the medical findings

do not support his contentions for a higher evaluation.

Taking the veteran's contentions into account and the medical

findings, an initial evaluation in excess of 10 percent for

chronic muscle tension headaches is not warranted.

Accordingly, the preponderance of the evidence is against his

claim, and there is no doubt to be resolved. Gilbert, 1 Vet.

App. at 55.

In view of the denial of entitlement to an initial evaluation

in excess of 10 percent for chronic muscle tension headaches,

the Board finds no basis for assignment of separate ratings

for separate periods during the appeal period. See

Fenderson, supra.

Review of the record reveals that the RO has expressly

considered referral of the case to the Under Secretary for

Benefits or the Director, Compensation and Pension Service

for the assignment of an extraschedular rating under

38 C.F.R. § 3.321(:((1) (2002). This regulation provides

that to accord justice in an exceptional case where the

schedular standards are found to be inadequate, the field

station is authorized to refer the case to the Under

Secretary or the Director, Compensation and Pension Service

for assignment of an extraschedular evaluation commensurate

with the average earning capacity impairment. The governing

criteria for such an award is a finding that the case

presents such an exceptional or unusual disability picture

with such related factors as marked interference with

employment or frequent periods of hospitalization as to

render impractical the application of the regular schedular

standards.

The Court has held that the Board is precluded by regulation

from assigning an extraschedular rating under 38 C.F.R.

§ 3.321(B)(1) in the first instance, however, the Board is

not precluded from raising this question, and in fact is

obligated to liberally read all documents and oral testimony

of record and identify all potential theories of entitlement

to a benefit under the law and regulations. Floyd v. Brown,

9 Vet. App. 88 (1996). The Court has further held that the

Board must address referral under 38 C.F.R. § 3.321(:)(1)

only where circumstances are presented which the Under

Secretary or Director of VA's Compensation and Pension

Service might consider exceptional or unusual. Shipwash v.

Brown, 8 Vet. App. 218, 227 (1995). Having reviewed the

record with these mandates in mind, the Board finds no basis

for further action on this question. VAOPGCPREC. 6-96

(1996).

ORDER

Entitlement to an effective date of March 27, 1997, for the

grant of service connection for chronic muscle tension

headaches is granted, subject to the controlling regulations

applicable to the payment of monetary benefits.

Entitlement to an initial evaluation in excess of 10 percent

for chronic muscle tension headaches is denied.

________________________________________

JEFF MARTIN

Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

YOUR RIGHTS TO APPEAL OUR DECISION

The attached decision by the Board of Veterans' Appeals (BVA or Board) is

the final decision for all issues addressed in the "Order" section of the

decision. The Board may also choose to remand an issue or issues to the

local VA office for additional development. If the Board did this in your

case, then a "Remand" section follows the "Order." However, you cannot

appeal an issue remanded to the local VA office because a remand is not a

final decision. The advice below on how to appeal a claim applies only to

issues that were allowed, denied, or dismissed in the "Order."

If you are satisfied with the outcome of your appeal, you do not need to do

anything. We will return your file to your local VA office to implement

the BVA's decision. However, if you are not satisfied with the Board's

decision on any or all of the issues allowed, denied, or dismissed, you

have the following options, which are listed in no particular order of

importance:

? Appeal to the United States Court of Appeals for Veterans Claims

(Court)

? File with the Board a motion for reconsideration of this decision

? File with the Board a motion to vacate this decision

? File with the Board a motion for revision of this decision based on

clear and unmistakable error.

Although it would not affect this BVA decision, you may choose to also:

? Reopen your claim at the local VA office by submitting new and

material evidence.

There is no time limit for filing a motion for reconsideration, a motion to

vacate, or a motion for revision based on clear and unmistakable error with

the Board, or a claim to reopen at the local VA office. None of these

things is mutually exclusive - you can do all five things at the same time

if you wish. However, if you file a Notice of Appeal with the Court and a

motion with the Board at the same time, this may delay your case because of

jurisdictional conflicts. If you file a Notice of Appeal with the Court

before you file a motion with the BVA, the BVA will not be able to consider

your motion without the Court's permission.

How long do I have to start my appeal to the Court? You have 120 days from

the date this decision was mailed to you (as shown on the first page of

this decision) to file a Notice of Appeal with the United States Court of

Appeals for Veterans Claims. If you also want to file a motion for

reconsideration or a motion to vacate, you will still have time to appeal

to the Court. As long as you file your motion(s) with the Board within 120

days of the date this decision was mailed to you, you will then have

another 120 days from the date the BVA decides the motion for

reconsideration or the motion to vacate to appeal to the Court. You should

know that even if you have a representative, as discussed below, it is your

responsibility to make sure that your appeal to Court is filed on time.

How do I appeal to the United States Court of Appeals for Veterans Claims?

Send your Notice of Appeal to the Court at:

Clerk, U.S. Court of Appeals for Veterans Claims

625 Indiana Avenue, NW, Suite 900

Washington, DC 20004-2950

You can get information about the Notice of Appeal, the procedure for

filing a Notice of Appeal, the filing fee (or a motion to waive the filing

fee if payment would cause financial hardship), and other matters covered

by the Court's rules directly from the Court. You can also get this

information from the Court's web site on the Internet at

www.vetapp.uscourts.gov, and you can download forms directly from that

website. The Court's facsimile number is (202) 501-5848.

To ensure full protection of your right of appeal to the Court, you must

file your Notice of Appeal with the Court, not with the Board, or any other

VA office.

How do I file a motion for reconsideration? You can file a motion asking

the BVA to reconsider any part of this decision by writing a letter to the

BVA stating why you believe that the BVA committed an obvious error of fact

or law in this decision, or stating that new and material military service

records have been discovered that apply to your appeal. If the BVA has

decided more than one issue, be sure to tell us which issue(s) you want

reconsidered. Send your letter to:

Director, Management and Administration (014)

Board of Veterans' Appeals

810 Vermont Avenue, NW

Washington, DC 20420

VA

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Remember, the Board places no time limit on filing a motion for

reconsideration, and you can do this at any time. However, if you also plan

to appeal this decision to the Court, you must file your motion within 120

days from the date of this decision.

How do I file a motion to vacate? You can file a motion asking the BVA to

vacate any part of this decision by writing a letter to the BVA stating why

you believe you were denied due process of law during your appeal. For

example, you were denied your right to representation through action or

inaction by VA personnel, you were not provided a Statement of the Case or

Supplemental Statement of the Case, or you did not get a personal hearing

that you requested. You can also file a motion to vacate any part of this

decision on the basis that the Board allowed benefits based on false or

fraudulent evidence. Send this motion to the address above for the

Director, Management and Administration, at the Board. Remember, the Board

places no time limit on filing a motion to vacate, and you can do this at

any time. However, if you also plan to appeal this decision to the Court,

you must file your motion within 120 days from the date of this decision.

How do I file a motion to revise the Board's decision on the basis of clear

and unmistakable error? You can file a motion asking that the Board revise

this decision if you believe that the decision is based on "clear and

unmistakable error" (CUE). Send this motion to the address above for the

Director, Management and Administration, at the Board. You should be

careful when preparing such a motion because it must meet specific

requirements, and the Board will not review a final decision on this basis

more than once. You should carefully review the Board's Rules of Practice

on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified

representative before filing such a motion. See discussion on

representation below. Remember, the Board places no time limit on filing a

CUE review motion, and you can do this at any time.

How do I reopen my claim? You can ask your local VA office to reopen your

claim by simply sending them a statement indicating that you want to reopen

your claim. However, to be successful in reopening your claim, you must

submit new and material evidence to that office. See 38 C.F.R. 3.156(a).

Can someone represent me in my appeal? Yes. You can always represent

yourself in any claim before VA, including the BVA, but you can also

appoint someone to represent you. An accredited representative of a

recognized service organization may represent you free of charge. VA

approves these organizations to help veterans, service members, and

dependents prepare their claims and present them to VA. An accredited

representative works for the service organization and knows how to prepare

and present claims. You can find a listing of these organizations on the

Internet at: www.va.gov/vso. You can also choose to be represented by a

private attorney or by an "agent." (An agent is a person who is not a

lawyer, but is specially accredited by VA.)

If you want someone to represent you before the Court, rather than before

VA, then you can get information on how to do so by writing directly to the

Court. Upon request, the Court will provide you with a state-by-state

listing of persons admitted to practice before the Court who have indicated

their availability to represent appellants. This information is also

provided on the Court's website at www.vetapp.uscourts.gov.

Do I have to pay an attorney or agent to represent me? Except for a claim

involving a home or small business VA loan under Chapter 37 of title 38,

United States Code, attorneys or agents cannot charge you a fee or accept

payment for services they provide before the date BVA makes a final

decision on your appeal. If you hire an attorney or accredited agent within

1 year of a final BVA decision, then the attorney or agent is allowed to

charge you a fee for representing you before VA in most situations. An

attorney can also charge you for representing you before the Court. VA

cannot pay fees of attorneys or agents.

Fee for VA home and small business loan cases: An attorney or agent may

charge you a reasonable fee for services involving a VA home loan or small

business loan. For more information, read section 5904, title 38, United

States Code.

In all cases, a copy of any fee agreement between you and an attorney or

accredited agent must be sent to:

Office of the Senior Deputy Vice Chairman (012)

Board of Veterans' Appeals

810 Vermont Avenue, NW

Washington, DC 20420

The Board may decide, on its own, to review a fee agreement for

reasonableness, or you or your attorney or agent can file a motion asking

the Board to do so. Send such a motion to the address above for the Office

of the Senior Deputy Vice Chairman at the Board.

VA

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[carlie]

More Cue granted for EED, hope I'm not boring anyone with these.

carlie

Citation Nr: 0404393

Decision Date: 02/17/04 Archive Date: 02/27/04

DOCKET NO. 00-18 679 ) DATE

)

)

On appeal from the

Department of Veterans Affairs Regional Office in New

Orleans, Louisiana

THE ISSUES

1. Entitlement to an effective date earlier than May 4,

2000, for the grant of service connection for post traumatic

headaches.

2. Entitlement to service connection for hemorrhoids.

REPRESENTATION

Appellant represented by: The American Legion

WITNESS AT HEARINGS ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

C. S. Freret, Counsel

INTRODUCTION

The appellant had active military service from September 1959

to August 1961. He also had subsequent service in the

National Guard.

This appeal comes before the Board of Veterans' Appeals

(Board) from July 2000 and October 2001 rating decisions by

the Department of Veterans Affairs (VA) New Orleans,

Louisiana, Regional Office (RO). In August 2000, the

appellant filed a notice of disagreement with the July 2000

rating decision that denied service connection for

hemorrhoids and headaches. Following the issuance of a

statement of the case to the appellant in August 2000, he

perfected his appeal of those issues to the Board by timely

filing a substantive appeal in August 2000.

After an October 2001 rating decision granted service

connection for headaches, the appellant submitted a notice of

disagreement in December 2001 with the effective date ( May

4, 2000) assigned by the RO for the grant of service

connection for headaches. Following the issuance of a

supplemental statement of the case to the appellant in July

2002, which included the issue of entitlement to an earlier

effective date for the grant of service connection for

headaches, the appellant perfected his appeal of that issue

to the Board by timely filing a substantive appeal in August

2002.

While the appellant and his representative have claimed that

the October 2001 rating decision was clearly and unmistakably

erroneous in not assigning an earlier effective date for the

grant of service connection for headaches, the Board notes

that the appellant's December 2001 statement was a notice of

disagreement with the effective date assigned by the October

2001 rating decision. The United States Court of Appeals for

Veterans Claims (Court) had held that a successful claimant

has not had his case fully adjudicated until there is a

decision as to all essential elements, i.e., status,

disability, service connection, rating, and when in question,

effective date. West v. Brown, 7 Vet. App. 329, 332 (1995);

Cf. Shipwash v. Brown, 8 Vet. App. 218, 224 (1995).

Therefore, the Board finds that the appellant's claim is one

of entitlement to an earlier effective date for the grant of

service connection for headaches rather than a claim of clear

and unmistakable error in the October 2001 rating decision.

As will be explained below, the issue of entitlement to

service connection for hemorrhoids is remanded to the RO via

the Appeals Management Center in Washington, DC. VA will

notify you if further action is required on your part.

FINDINGS OF FACT

1. Service medical records show that the appellant

complained of severe headaches in April 1985, one day after

sustaining an injury to his head and shoulders while

performing inactive duty for training, and in February 1989.

2. The appellant submitted a claim of entitlement to service

connection for residuals of head injury and a neck injury in

April 1991.

3. The veteran was awarded service connection for cervical

strain, but denied service connection for a head injury in a

January 1992 rating action.

4. An August 1992 statement from the veteran may be

construed as a notice of disagreement with the decision to

deny service connection for the residuals of a head injury,

(including headaches).

5. The appeal of the claim for service connection for the

residuals of a head injury including headaches remained

pending until service connection for post traumatic headaches

was established in an October 2001 rating action, effective

from May 2000.

CONCLUSION OF LAW

The criteria for an effective date from April 29, 1991, for

the award of service connection for post traumatic headaches

have been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §

3.400 (2003).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

On November 9, 2000, the President signed into law the

Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A.

§ 5100 et seq. (West 2002); see 38 C.F.R. §§ 3.102, 3.156(a),

3.159, 3.326(a) (2002). This law eliminated the concept of a

well-grounded claim, redefined the obligations of VA with

respect to the duty to assist, and imposed on VA certain

notification requirements.

First, VA has a duty to notify the veteran of any information

and evidence needed to substantiate and complete a claim.

38 U.S.C.A. §§ 5102 and 5103 (West 2002); 38 C.F.R.

§ 3.159(:( (2002); see Quartuccio v. Principi, 16 Vet. App.

183 (2002) (holding that both the statute, 38 U.S.C. §

5103(a), and the regulation, 38 C.F.R. § 3.159, clearly

require the Secretary to notify a claimant which evidence, if

any, will be obtained by the claimant and which evidence, if

any, will be retrieved by the Secretary). Second, VA has a

duty to assist the veteran in obtaining evidence necessary to

substantiate the claim. 38 U.S.C.A. § 5103A (West 2002);

38 C.F.R. § 3.159© (2003).

A VA General Counsel opinion, VA O.G.C. Prec. Op. No. 8-2003

(December 14, 2003), which terms are binding on the Board,

determined that VA was not required to notify a claimant of

the information and evidence necessary to substantiate an

issue first raised in a notice of disagreement submitted in

response to VA's notice of decision on a claim for which VA

had already notified the claimant of the information and

evidence necessary to substantiate the claim. The issue of

entitlement to an effective date earlier than May 4, 2000,

for the grant of service connection for headaches was raised

as a notice of disagreement in response to the October 2001

rating decision that granted service connection for

headaches. As such, the Board finds that VA O.G.C. Prec. Op.

No. 8-2003 is applicable in this case, and the notice

requirements as set out in the VCAA need not be further

discussed.

In addition, since the relevant evidence to be considered in

an effective date claim is essentially fixed by the evidence

already of record, no additional development is necessary.

Moreover, as explained below, the Board is granting the

benefit sought and no benefit in further developing the case

is apparent.

The appellant asserts that the grant of service connection

for headaches secondary to his service-connected cervical

strain should be earlier than the May 4, 2000, effective date

assigned by the October 2001 rating decision. He argues that

he has experienced headaches ever since sustaining injury to

his neck and head while on inactive duty for training in

April 1985.

An effective date for an award based on an original claim for

VA benefits "shall be fixed in accordance with the facts

found, but shall not be earlier than the date of receipt of

application therefor." 38 U.S.C.A. § 5110(a) (West 2002). 38

C.F.R. § 3.400 (2003). An exception to that rule, not

relevant here, applies only when an application for benefits

is received within one year from the date of the veteran's

discharge or release from service. In that situation, the

effective date of the award is made retroactive to "the day

following the date of discharge or release . . ." 38 U.S.C.A.

§ 5110(:((1) (West 2002); 38 C.F.R. § 3.400(B)(2) (2003).

An April 1985 service medical record (statement of medical

examination) shows that the appellant was struck on the head

and shoulders by a tent he was helping to load on a truck

during inactive duty for training the day before. The record

also indicated that the day after his injury the appellant

had notified his unit that he was experiencing neck pain and

severe headaches. A subsequently dated service medical

record, in February 1989, noted a complaint of headaches.

On April 29, 1991, the appellant submitted a claim for

service connection for residuals of head injury and neck

injury. Service connection was granted for cervical strain

and denied for residuals of a head injury in a January 1992

rating action. Following receipt of a notice of disagreement

and the issuance of a statement of the case, the veteran

perfected an appeal with respect to the disability evaluation

assigned for his cervical strain by the submission of a VA

Form 1-9 in August 1992. (This appeal was subsequently

denied by the Board.) In an attachment to the August 1992 VA

Form 1-9, however, the veteran also remarked that he had

severe and recurring headaches which he noted was not a

subject addressed in the statement of the case. This August

1992 document may be considered a notice of disagreement with

the January 1992 rating action that denied service connection

for the residuals of a head injury (including headaches).

This matter remained pending until the October 2001 rating

action at issue that awarded service connection for post

traumatic headaches, effective from May 2000. Viewed in this

way, a basis upon which to establish an effective date for

post traumatic headaches from the April 1991 claim for

benefits has been presented. Accordingly, the appeal is

granted.

ORDER

Entitlement to an effective date of April 29, 1991, for the

award of service connection for post traumatic headaches is

granted.

REMAND

The appellant argues that he has a hemorrhoid disability that

is related to service, either as having been initially

manifested in service or as being caused by his service-

connected anal fissure.

Service connection was granted for an anal fissure by an

October 1969 rating decision, based on findings in the

appellant's service medical records that showed treatment for

a fissure in anus in the posterior midline position with

associated bleeding in November 1959. Notification to the

appellant in November 1969 of the October 1969 rating

decision, erroneously indicated that service connection had

been granted for a hemorrhoid condition.

The appellant was diagnosed with internal and external

hemorrhoids at a July 2000 VA rectum and anus examination,

which noted that he had undergone a hemorrhoidectomy in 1997.

Upon review of the claims file, the Board does not find that

the appellant's contention that his hemorrhoids are secondary

to his service-connected anal fissure has been adequately

investigated.

When, during the course of review, the Board determines that

further evidence, or clarification of the evidence, or

correction of a procedural defect is essential for a proper

appellate decision, the Board shall remand the case and

specify the action to be undertaken. 38 C.F.R. § 19.9(a).

Where the record before the Board is inadequate to render a

fully informed decision, a remand to the RO is required in

order to fulfill the statutory duty to assist, as set forth

in 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.103(a). Ascherl v.

Brown, 4 Vet. App. 371, 377 (1993). When the Board believes

the medical evidence of record is insufficient, it may

supplement the record by ordering a medical examination.

Colvin v. Derwinski, 1 Vet. App. 171 (1991).

Accordingly, the appeal is remanded to the RO for the

following actions:

1. Ensure that all notice obligations have

been satisfied in accordance with 38 U.S.C.A.

§§ 5102, 5103, and 5103A and any other

applicable legal precedent. Particularly,

the appellant should be notified of what

evidence VA will develop, and what evidence

he must furnish.

2. The RO should contact the appellant and

request that he provide the names and

addresses of any health care providers from

whom he has received treatment for his

hemorrhoids since July 2000, and, if

possible, specify the appropriate dates of

treatment. Then, after any necessary

authorization is obtained from the appellant,

the RO should obtain copies of all treatment

records for the appellant from the health

care providers identified and associate them

with the claims file.

3. The RO should schedule the appellant for

a VA rectal examination to determine the

severity and likely etiology of any

hemorrhoid condition. The entire claims

folder and a copy of this Remand should be

made available to and reviewed by the

examiner prior to the examination. He should

be requested to express an opinion as to

whether it is more likely, less likely, or as

likely as not that the appellant's hemorrhoid

condition is related to his service-connected

anal fissure, or is otherwise related to

service. The examiner should also be

requested to present all opinions and

findings, and the reasons and bases therefor,

in a clear, comprehensive, and legible manner

on the examination report.

4. The appellant should be advised of the

provisions set forth at 38 C.F.R. § 3.655(:)

regarding failure to report for scheduled VA

examinations.

5. Following completion of the above

requested actions, the claim for service

connection for hemorrhoids should be re-

adjudicated. If the benefit sought on appeal

remains denied, the appellant and his

representative should be furnished a

supplemental statement of the case, and an

appropriate period of time to respond.

Thereafter, the case should be returned to

the Board for further appellate

consideration.

The appellant has the right to submit additional evidence and

argument on the matter the Board has remanded. Kutscherousky

v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law

requires that all claims that are remanded by the Board of

Veterans' Appeals or by the United States Court of Appeals

for Veterans Claims for additional development or other

appropriate action must be handled in an expeditious manner.

See The Veterans' Benefits Improvements Act of 1994, Pub. L.

No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.

§ 5101 (West 2002) (Historical and Statutory Notes). In

addition, VBA's Adjudication Procedure Manual, M21-1, Part

IV, directs expeditious handling of all cases that have been

remanded by the Board and the Court. See M21-1, Part IV,

paras. 8.43 and 38.02.

_________________________________________________

MICHAEL E. KILCOYNE

Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

YOUR RIGHTS TO APPEAL OUR DECISION

The attached decision by the Board of Veterans' Appeals (BVA or Board) is

the final decision for all issues addressed in the "Order" section of the

decision. The Board may also choose to remand an issue or issues to the

local VA office for additional development. If the Board did this in your

case, then a "Remand" section follows the "Order." However, you cannot

appeal an issue remanded to the local VA office because a remand is not a

final decision. The advice below on how to appeal a claim applies only to

issues that were allowed, denied, or dismissed in the "Order."

If you are satisfied with the outcome of your appeal, you do not need to do

anything. We will return your file to your local VA office to implement

the BVA's decision. However, if you are not satisfied with the Board's

decision on any or all of the issues allowed, denied, or dismissed, you

have the following options, which are listed in no particular order of

importance:

? Appeal to the United States Court of Appeals for Veterans Claims

(Court)

? File with the Board a motion for reconsideration of this decision

? File with the Board a motion to vacate this decision

? File with the Board a motion for revision of this decision based on

clear and unmistakable error.

Although it would not affect this BVA decision, you may choose to also:

? Reopen your claim at the local VA office by submitting new and

material evidence.

There is no time limit for filing a motion for reconsideration, a motion to

vacate, or a motion for revision based on clear and unmistakable error with

the Board, or a claim to reopen at the local VA office. None of these

things is mutually exclusive - you can do all five things at the same time

if you wish. However, if you file a Notice of Appeal with the Court and a

motion with the Board at the same time, this may delay your case because of

jurisdictional conflicts. If you file a Notice of Appeal with the Court

before you file a motion with the BVA, the BVA will not be able to consider

your motion without the Court's permission.

How long do I have to start my appeal to the Court? You have 120 days from

the date this decision was mailed to you (as shown on the first page of

this decision) to file a Notice of Appeal with the United States Court of

Appeals for Veterans Claims. If you also want to file a motion for

reconsideration or a motion to vacate, you will still have time to appeal

to the Court. As long as you file your motion(s) with the Board within 120

days of the date this decision was mailed to you, you will then have

another 120 days from the date the BVA decides the motion for

reconsideration or the motion to vacate to appeal to the Court. You should

know that even if you have a representative, as discussed below, it is your

responsibility to make sure that your appeal to Court is filed on time.

How do I appeal to the United States Court of Appeals for Veterans Claims?

Send your Notice of Appeal to the Court at:

Clerk, U.S. Court of Appeals for Veterans Claims

625 Indiana Avenue, NW, Suite 900

Washington, DC 20004-2950

You can get information about the Notice of Appeal, the procedure for

filing a Notice of Appeal, the filing fee (or a motion to waive the filing

fee if payment would cause financial hardship), and other matters covered

by the Court's rules directly from the Court. You can also get this

information from the Court's web site on the Internet at

www.vetapp.uscourts.gov, and you can download forms directly from that

website. The Court's facsimile number is (202) 501-5848.

To ensure full protection of your right of appeal to the Court, you must

file your Notice of Appeal with the Court, not with the Board, or any other

VA office.

How do I file a motion for reconsideration? You can file a motion asking

the BVA to reconsider any part of this decision by writing a letter to the

BVA stating why you believe that the BVA committed an obvious error of fact

or law in this decision, or stating that new and material military service

records have been discovered that apply to your appeal. If the BVA has

decided more than one issue, be sure to tell us which issue(s) you want

reconsidered. Send your letter to:

Director, Management and Administration (014)

Board of Veterans' Appeals

810 Vermont Avenue, NW

Washington, DC 20420

VA

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CONTINUED

Remember, the Board places no time limit on filing a motion for

reconsideration, and you can do this at any time. However, if you also plan

to appeal this decision to the Court, you must file your motion within 120

days from the date of this decision.

How do I file a motion to vacate? You can file a motion asking the BVA to

vacate any part of this decision by writing a letter to the BVA stating why

you believe you were denied due process of law during your appeal. For

example, you were denied your right to representation through action or

inaction by VA personnel, you were not provided a Statement of the Case or

Supplemental Statement of the Case, or you did not get a personal hearing

that you requested. You can also file a motion to vacate any part of this

decision on the basis that the Board allowed benefits based on false or

fraudulent evidence. Send this motion to the address above for the

Director, Management and Administration, at the Board. Remember, the Board

places no time limit on filing a motion to vacate, and you can do this at

any time. However, if you also plan to appeal this decision to the Court,

you must file your motion within 120 days from the date of this decision.

How do I file a motion to revise the Board's decision on the basis of clear

and unmistakable error? You can file a motion asking that the Board revise

this decision if you believe that the decision is based on "clear and

unmistakable error" (CUE). Send this motion to the address above for the

Director, Management and Administration, at the Board. You should be

careful when preparing such a motion because it must meet specific

requirements, and the Board will not review a final decision on this basis

more than once. You should carefully review the Board's Rules of Practice

on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified

representative before filing such a motion. See discussion on

representation below. Remember, the Board places no time limit on filing a

CUE review motion, and you can do this at any time.

How do I reopen my claim? You can ask your local VA office to reopen your

claim by simply sending them a statement indicating that you want to reopen

your claim. However, to be successful in reopening your claim, you must

submit new and material evidence to that office. See 38 C.F.R. 3.156(a).

Can someone represent me in my appeal? Yes. You can always represent

yourself in any claim before VA, including the BVA, but you can also

appoint someone to represent you. An accredited representative of a

recognized service organization may represent you free of charge. VA

approves these organizations to help veterans, service members, and

dependents prepare their claims and present them to VA. An accredited

representative works for the service organization and knows how to prepare

and present claims. You can find a listing of these organizations on the

Internet at: www.va.gov/vso. You can also choose to be represented by a

private attorney or by an "agent." (An agent is a person who is not a

lawyer, but is specially accredited by VA.)

If you want someone to represent you before the Court, rather than before

VA, then you can get information on how to do so by writing directly to the

Court. Upon request, the Court will provide you with a state-by-state

listing of persons admitted to practice before the Court who have indicated

their availability to represent appellants. This information is also

provided on the Court's website at www.vetapp.uscourts.gov.

Do I have to pay an attorney or agent to represent me? Except for a claim

involving a home or small business VA loan under Chapter 37 of title 38,

United States Code, attorneys or agents cannot charge you a fee or accept

payment for services they provide before the date BVA makes a final

decision on your appeal. If you hire an attorney or accredited agent within

1 year of a final BVA decision, then the attorney or agent is allowed to

charge you a fee for representing you before VA in most situations. An

attorney can also charge you for representing you before the Court. VA

cannot pay fees of attorneys or agents.

Fee for VA home and small business loan cases: An attorney or agent may

charge you a reasonable fee for services involving a VA home loan or small

business loan. For more information, read section 5904, title 38, United

States Code.

In all cases, a copy of any fee agreement between you and an attorney or

accredited agent must be sent to:

Office of the Senior Deputy Vice Chairman (012)

Board of Veterans' Appeals

810 Vermont Avenue, NW

Washington, DC 20420

The Board may decide, on its own, to review a fee agreement for

reasonableness, or you or your attorney or agent can file a motion asking

the Board to do so. Send such a motion to the address above for the Office

of the Senior Deputy Vice Chairman at the Board.

VA

FORM

JUN

2003

(RS)

4597

Page

2

[Guest Berta]

I sure am not bored Carlie-and I believe that there are many vets with CUE potential for more retro but they never file a CUE claim.

This is one of the problems with service officers too- they dont take the time to see if there is any CUE potential or probably discourage a vet who thinks there is.

That CUE claim with the retro back to 1953 shows how they can work.

I have 2 CUEs pending one is pretty obvious-the veteran had significant heart disease never rated by the VA during 6 years of VA medical care.

# 1-The doctors never diagnosed heart disease until the claim went to VA OGC in Washington.

I claimed that the VA in preparing my accrued benefits and Sec 1151 award violated their regs and never rated the veteran's heart disease which had been diagnosed by that time.

# 2 The other CUE is the VA when they prepared accrued benefits after Rod died, never awarded him SMC- they stated emphatically that he had no eligibility "under any circumstance"for SMC.

I CUEd this because I found a OG Pres Op that stated emphatically that 1151 awards will also consider SMC.

They did not consider this in the Sec 1151 award either.

By then the VA was fully aware that he had a 'NSC' condition at 100% which became an "as if" SC disability (plus the unrated and untreated heart disease which caused his death-and he should have gotten the "S" award at a minimum) after 1991, when his SC for PTSD went up to 100%.

(I am asking for SMC "M" from Oct 1991 to Oct 1994)

(They did not award that 100% for PTSD until 1997 so you can see how tricky this is)

The 'nsc' disabilities that he had to include undiagnosed DMII and heart disease added up to over 3 years at the "M" award.-under Nehmer.

I hope this all might help someone-

(1)If you have final decision

(my rights to file a NOD on the SMC were lost when they said "under NO circumstances was he eligible for SMC")I could not and did not appeal this. in the Cue # 2.

In the # 1 CUE, the fact that the VA didnt diagnose heart disease until after the veteran died does not alleviate their responsibility -as during the process of the Sec 1151 claim,they were fully aware of OGC and VACO report indicating the veteran's undiagnosed heart disease was one of 'multiple' deviations in proper med. care.

(2) that they broke their own regs (such as the OG Pres Op I sent them-CUE # 2)

(3)and that the error if remedied will manifestly alter the outcome-

in my case- about $18,000 under SMC and additional $18,000 under Nehmer.

My CUE claims were very brief and I sent them evidence to support-evidence from the VA itself.

If a Claimant focuses solely on the above 3 factors, they can win a CUE claim.

[foreveryoung]

Your right Berta, I have an SO who just told me today that my idea of filing a CUE will likely not work. He told me that BVA rulings are final, which I agreed, and I got the feeling that he felt it would be to much trouble and time to research my 1980 ruling.

I had a video hearing last week, with my SO and VA Rep. which lasted about 10 min. what a waste of time. It took me more time to drive to the hearing then to review my claim.

If I have to I will file the CUE on my own. You would think these SO's would be more helpful.

[foreveryoung]

Terry

I did state in the letter I gave the SO, This is not a reconsideration motion. I even told him I believe there is an error in my diagnosis code and some other issues from the 1980 ruling. I just have a feeling from the way he talks, that he thinks its to much research. I even have all the regs. sited that I believe make my claim for him.

He may be thinking, why should I spend so much time on this one claim when I could help 6 other vets. in the same amount of time.

This is almost like the time the SO told me 10 years ago, you don't have a solid claim, but I when and proved them wrong on my own. It looks like I may have to do it again.