carlie Posted October 19, 2005 Share Posted October 19, 2005 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 Link to comment Share on other sites More sharing options...
carlie Posted October 19, 2005 Author Share Posted October 19, 2005 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 FORM JUN 2003 (RS) 4597 Page 1 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 Link to comment Share on other sites More sharing options...
carlie Posted October 19, 2005 Author Share Posted October 19, 2005 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 FORM JUN 2003 (RS) 4597 Page 1 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 Link to comment Share on other sites More sharing options...
Guest Berta Posted October 19, 2005 Share Posted October 19, 2005 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. Link to comment Share on other sites More sharing options...
foreveryoung Posted October 19, 2005 Share Posted October 19, 2005 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. Link to comment Share on other sites More sharing options...
foreveryoung Posted October 20, 2005 Share Posted October 20, 2005 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. Link to comment Share on other sites More sharing options...
Question
carlie
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
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