ptsd 5 Bva Cue's Granted

[carlie]

Hope something here helps a vet. Remember BVA decision's do not set precedent,

but you may find something here beneficial to you claim.

carlie

CUE FOR EED _ N&M IN SMR'shttp://www.va.gov/vetapp06/files4/0620826.txtCitation Nr: 0620826

Decision Date: 07/18/06 Archive Date: 07/26/06

DOCKET NO. 04-14 216 ) DATE

)

)

On appeal from the

Department of Veterans Affairs Regional Office in Portland,

Oregon

THE ISSUE

Entitlement to an effective date earlier than January 31,

2002, for service connection for hepatitis-C.

REPRESENTATION

Appellant represented by: Paralyzed Veterans of America,

Inc.

ATTORNEY FOR THE BOARD

C.A. Skow, Counsel

INTRODUCTION

The appellant served on active duty from October 1967 to

October 1970.

This matter came before the Board of Veterans' Appeals (the

Board) on appeal from an April 2003 rating decision of the

Portland, Oregon, Department of Veterans Affairs (VA)

Regional Office (RO).

FINDINGS OF FACT

1. The RO denied service connection for hepatitis in a

November 1970 rating decision. The veteran was informed of

the determination and of the right to appeal. The veteran

did not appeal.

2. On January 31, 2002, the RO received a claim for

compensation based on service connection for hepatitis.

3. The AOJ received a supplemental report from the service

department documenting hospitalization for hepatitis and a

favorable line of duty determination.

4. The veteran's original claim for compensation was

received within one year of separation from service.

CONCLUSION OF LAW

The criteria for the assignment of an effective date of

October 24, 1970, for the award of service connection for

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

C.F.R. §§ 3.156©, 3.400 (2005).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. VCAA

Any VCAA violation is harmless as the case is herein granted.

II. Earlier Effective Dates

The appellant is seeking an earlier effective date for the

award of service connection for hepatitis-C. He essentially

contends that the effective date of that award should be the

date of his separation from service since he filed a claim

for benefits at separation from service.

Under 38 C.F.R. § 3.400(b)(2)(i), the effective date for a

grant of direct service connection will be the day following

separation from active service, or the date entitlement arose

if a claim is received within one year after separation from

service. Otherwise, the effective date is the date of

receipt of claim or date entitlement arose, whichever is

later. 38 U.S.C. 5110(a); 38 C.F.R. § 3.400. Unless

specifically provided, the effective date will be assigned on

the basis of the facts as found. 38 C.F.R. § 3.400(a).

Where service connection is established based upon the

receipt of new and material evidence received within an

appeal period or prior to an appellate decision, the

effective date will be as though the former decision had not

been rendered. 38 C.F.R. § 3.400(q). If new and material

evidence is received after final disallowance, the effective

date is the date of receipt of the new claim or the date

entitlement arose, whichever is later. 38 C.F.R. § 3.400(q),

®.

In this case, the appellant filed a claim for compensation

for hepatitis at service discharge in October 1970. His

application directed the RO to "SEE OFFICIAL MEDICAL

RECORDS" and noted hepatitis. A service separation

examination report received by the RO showed no complaints or

findings for hepatitis or residuals thereof. In a November

1970 rating decision, the RO denied service connection for

hepatitis. No appeal was filed and this decision became

final. 38 C.F.R. §§ 20.302, 20.1103.

On January 31, 2002, the RO received an application for

compensation from the appellant. In addition to other

disabilities, he claimed hepatitis-C and residuals thereof.

He reported that he was diagnosed and treated in service for

this condition.

In February 2002, private treatment records were received.

These records show a diagnosis for hepatitis-C. In July

2002, VA obtained additional service medical records. These

records show a diagnosis for infectious hepatitis in December

1968. A physical profile record dated January 1969 reflects

that the appellant was recovering from infectious hepatitis.

On VA examination in November 2002, hepatitis-C was

confirmed. In an addendum to this report, a VA physician

noted that the appellant was "formally diagnosed with

hepatitis-C in January 2002, having had hepatitis in service

that was thought to be infectious."

In an April 2003 rating decision, the RO awarded service

connection for hepatitis-C, effective from January 31, 2002.

This case is controlled by the provisions of 38 C.F.R.

§ 3.156©. In November 1970, service connection for

hepatitis was denied. At that time, it was noted that the

only service record was the discharge examination and that it

was negative for hepatitis. However, contained within the

same service department envelope was a dental record that

clearly indicated that the veteran had a history of

hepatitis. Although the decision was supportable, it is

abundantly clear that service medical records were

outstanding and eventually associated with the file in 2002.

The records referenced hepatitis and included a specific

hospital record establishing treatment for hepatitis that had

been incurred in line of duty. Under any stretch of the

imagination, the added service records are new and material

evidence. Section 3.156 provides that where the new and

material evidence consists of a supplemental report from the

service department, received before or after the decision has

become final, the former decision will be reconsidered.

Whether a specific evaluation is warranted during the

timeframe is a matter that is separately addressed in the

same subsection.

New and material evidence in the nature of a supplemental

report from the service department was received and the

former decision has been reconsidered and granted. The

effective date of the award of service connection is

controlled by the date of the original claim for benefits.

The fact that additional evidence was needed for a grant of

service connection does not seem to be controlling based upon

the wording of the regulation. The regulation establishes

that the prior decision shall be reconsidered when service

records are the new and material evidence. The fact that

current disability and the nexus opinion were associated

later has little bearing in the case as the Court has

established that the date of receipt of such evidence is not

a factor to be considered. McGrath v. Brown, 14 Vet.,

App.346 (1995). Furthermore, as in McGrath, the VA examiner

appears to establish an in-service misdiagnosis of the in-

service manifestations. In essence, the veteran had

hepatitis C during service and it continued thereafter.

ORDER

An effective date of October 24, 1970, for service connection

for hepatitis is granted.

____________________________________________

H. N. SCHWARTZ

Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs*************************************************************************

********************************************************************************

*

******** CUE for EED - 3.400 (b) (2) http://www.va.gov/vetapp06/files5/0637434.txtCitation Nr: 0637434

Decision Date: 12/04/06 Archive Date: 12/12/06

DOCKET NO. 04-13 216 ) DATE

)

)

On appeal from the

Department of Veterans Affairs Regional Office in St.

Petersburg, Florida

THE ISSUE

Entitlement to an effective date earlier than February 24,

1999, for the grant of service connection for post-traumatic

stress disorder (PTSD).

REPRESENTATION

Appellant represented by: Disabled American Veterans

ATTORNEY FOR THE BOARD

D. M. Ames, Associate Counsel

INTRODUCTION

The veteran had active service from February 1972 to April

1977.

This matter comes before the Board of Veterans' Appeals

(Board) on appeal from a July 2002 rating decision of the

Department of Veterans Affairs (VA) Regional Office (RO) in

St. Petersburg, Florida.

The veteran withdrew his claim for an increased evaluation

for PTSD in his March 2004 substantive appeal. Therefore,

that issue is not before the Board.

FINDING OF FACT

The veteran's original claim for service connection for PTSD

was received on March 12, 1992.

CONCLUSION OF LAW

An effective date of March 12, 1992, but not earlier, for the

grant of service connection for PTSD is warranted.

38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2006).

REASONS AND BASES FOR FINDING AND CONCLUSION

The effective date for an award of service connection is

governed by 38 U.S.C.A. § 5110(a), which states that unless

specifically provided otherwise, the effective date of an

award based on an original claim, a claim reopened after

final adjudication, or a claim for an increase of

compensation shall be fixed in accordance with the facts

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

of the application therefore. 38 U.S.C.A. § 5110(a). The

date of entitlement to an award of service connection is the

day following separation from active service or the date

entitlement arose if the claim is received within one year

after separation from service; otherwise, the date of receipt

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

38 C.F.R. § 3.400(b)(2)(i).

The effective date of an award based on a claim reopened

after final disallowance shall be fixed in accordance with

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

receipt of the new claim or the date entitlement arose,

whichever is later. See 38 U.S.C.A. § 5110(a); 38 C.F.R. §§

3.400(q)(1)(ii), 3.400®.

The veteran left service in April 1977 and filed his first

claim for service connection for PTSD on March 12, 1992, more

than one year after leaving service. In an August 1992

rating decision, the RO denied service connection. The

veteran appealed the decision, and in November 1998, the

Board denied service connection. In a June 1999 rating

decision, the RO implemented the Board decision and the

veteran filed a timely notice of disagreement. The decision

was appealed to the Board again, and in a June 2002 decision,

the Board granted service connection for PTSD. The RO

implemented the Board's decision in a July 2002 rating

decision and established February 24, 1999 as the effective

date, stating that it was the date the veteran was first

diagnosed with PTSD. The veteran filed a timely notice of

disagreement to that decision, which is now on appeal before

the Board. Thus, there are no unappealed rating actions in

this case. Simply stated, this claim has been active since

1992.

The veteran has made the same contention in each of his

notices of disagreement: that the RO was incorrect about when

he was first diagnosed with PTSD. The veteran submitted

duplicate copies of evidence already of record showing that

he was diagnosed with PTSD by a VA physical at a VA Medical

Center (VAMC) in December 1991.

Applying the pertinent VA regulations to the facts of this

claim, it is clear that an effective date of March 12, 1992,

but no earlier, is warranted. The provisions of 38 C.F.R.

§ 3.400(b)(2) specifically provide that the effective date of

an award of compensation, based on an original claim, will be

the date of receipt of the claim, or the date entitlement

arose, whichever is later.

Entitlement arose when the veteran was diagnosed with PTSD in

December 1991, and he filed his original claim on March 12,

1992, the later of the two dates. There is no evidence of

record dated prior to March 12, 1992, that could be construed

as an earlier original formal or informal claim for service

connection. 38 C.F.R. § 3.155. Thus, the Board finds that

an effective date of March 12, 1992, but no earlier, is

warranted for the grant of service connection for PTSD. The

nature and extent of this disorder at that time is not before

the Board.

The Duty to Notify and the Duty to Assist

Review of the claims folder reveals compliance with the

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

§ 5100 et seq. See 38 C.F.R.

§§ 3.102, 3.156(a), 3.159, 3.326(a). That is, by a letter

dated in March 2003 and a follow-up letter in December 2003,

the RO advised the veteran of the evidence needed to

substantiate his claim and explained what evidence VA was

obligated to obtain or to assist the veteran in obtaining and

what information or evidence the veteran was responsible for

providing. Thus, the Board finds that the RO has provided

all notice required by the VCAA. 38 U.S.C.A. § 5103(a). See

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

The Board observes that the RO did not issue VCAA notice

letters prior to the adverse determination on appeal.

Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). As

discussed above, the Board finds that the RO has ultimately

provided all notice required by § 5103(a).

Moreover, neither the veteran nor his representative has made

any showing or allegation that the timing of the VCAA notice

resulted in any prejudice to the veteran.

The RO did not specifically ask the veteran to provide any

evidence in his possession that pertains to the claim. Id. at

120-21. However, the Board is satisfied that the March 2003

and December 2003 VCAA notices otherwise fully notified the

veteran of the need to give VA any evidence pertaining to his

claim. Therefore, any failure to make the specific request

is non-prejudicial, harmless error. Bernard v. Brown, 4 Vet.

App. 384, 392-94 (1993). See Sutton v. Brown, 9 Vet. App.

553 (1996); see also 38 C.F.R. § 20.1102 (harmless error).

The Board finds that any deficiency in the notice to the

veteran or the timing of these notices is harmless error.

See Overton v. Nicholson, No. 02-1814 (September 22, 2006)

(finding that the Board erred by relying on various

postdecisional documents to conclude that adequate

38 U.S.C.A. § 5103(a) notice had been provided to the

appellant, the Court found that the evidence established that

the veteran was afforded a meaningful opportunity to

participate in the adjudication of his claims, and found that

the error was harmless, as the Board has done in this case.)

The Board is aware of the recent decision in Dingess v.

Nicholson, 19 Vet. App. 473 (2006), regarding notice

requirements. The RO will be responsible for addressing any

notice defect with respect to the effective date element when

effectuating the award.

With respect to the duty to assist, the RO has secured the

veteran's service medical records, VA medical records,

private medical records, and VA examinations. As there is no

other indication or allegation that relevant evidence remains

outstanding, the Board finds that the duty to assist has been

met. 38 U.S.C.A. § 5103A.

ORDER

An effective date of March 12, 1992, but no earlier, for the

grant of service connection for PTSD is granted.

____________________________________________

JOHN J. CROWLEY

Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs*************************************************************************

********************************************************************************

*

*********************** Cue- EED Granted -- Same condition as applied for earlier http://www.va.gov/vetapp06/files2/0604337.txt Citation Nr: 0604337 Decision Date: 02/15/06 Archive Date: 02/28/06DOCKET NO. 04-25 736 ) DATE ) )On appeal from theDepartment of Veterans Affairs Regional Office in Muskogee, OklahomaTHE ISSUES1. Whether an August 10, 1995, rating decision that denied entitlement to service connection for a skin rash contained clear and unmistakable error.2. Entitlement to an effective date prior to February 24, 1997, for the award of service connection for polymorphous light eruption.REPRESENTATIONAppellant represented by: The American LegionATTORNEY FOR THE BOARDC. Dillon, CounselINTRODUCTIONThe veteran served on active duty from November 1968 to December 1970.This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2003 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. FINDINGS OF FACT1. The statutory and regulatory provisions at the time of the August 1995 rating decision were incorrectly applied.2. The veteran's claim for entitlement to service connection for a skin rash was received by the RO on November 30, 1994. CONCLUSIONS OF LAW1. The August 1995 rating decision contains clear and unmistakable error in denying entitlement to service connection for a skin rash. 38 C.F.R. § 3.105(a) (2005).2. The criteria for an effective date of November 30, 1994, for the grant of service connection for polymorphous light eruption, have been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2005).REASONS AND BASES FOR FINDINGS AND CONCLUSIONSIn an August 10, 1995, rating decision, the RO denied entitlement to service connection for a skin rash, to include as due to Agent Orange exposure. The veteran was notified of this determination and of his appellate rights by letter dated August 15, 1995, and he did not appeal. Accordingly, the August 1995 determination by the RO is final. 38 U.S.C.A. § 7105© (West 2002); 38 C.F.R. §§ 3.104(a), 20.302(a), 20.1103 (2005).The law provides that previous determinations that are final and binding, including decisions of service connection, will be accepted as correct in the absence of clear and unmistakable error (CUE). Where evidence establishes such error, however, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). The Court has held that for there to be a valid claim of CUE, there must have been an error in the prior adjudication of the claim. See Russell v. Principi, 3 Vet. App. 310, 313 (1992) (en banc). Either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were improperly applied. Id. CUE is error that is 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. Id. at 313-14. A determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Id. at 314. CUE is 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). The error must be one that, had it not been made, would have manifestly changed the outcome at the time that it was made. Kinnaman v. Derwinski, 4 Vet. App. 20, 26 (1993). See Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir.) (explaining that to prove the existence of CUE, a claimant must show that an error occurred that was outcome-determinative, that is, an error that would manifestly have changed the outcome of the prior decision). To simply claim CUE on the basis that previous adjudication had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993).The veteran essentially contends that CUE exists in the August 1995 rating decision at issue because the very same skin condition that was granted service connection in August 1997 existed in August 1995 and that the correction of such an error would warrant a grant of service connection effective November 29, 1994, the date of the original claim. While such an argument appears to be an assertion that the previous adjudicator improperly weighed and evaluated the evidence, a review of the August 1997 rating decision in which the RO granted service connection indicates the evidence before the RO at that time was identical to the evidence before the RO at the time of the August 1995 adjudication. Most significantly, the evidence included the report of a December 1994 VA examination and the service medical records, which in conjunction served as the basis for a grant of service connection in August 1997. It cannot be ignored in this case that the August 1997 VA adjudicator who granted service connection certified that CUE had been committed and that [e]ntitlement to service connection should have been granted for polymorphous light eruption as it appeared in the service medical records. Each assigned effective date of this corrected rating corresponds to the date from which benefits would have been payable if it had been made on the date of the reversed decision (38 C.F.R. § 3.400(k)). However, the RO assigned the date of receipt of the claim received on February 24, 1997, as the effective date for the grant of service connection, rather than the date of receipt of the original claim in 1994. The August 1995 rating decision determined that the veteran's skin disorder was a congenital or developmental defect, despite no competent evidence of characterizing the skin disorder as such. Conversely, the RO found in its August 1997 rating decision, based on the same facts considered in 1995, that the service medical records documented skin complaints associated with light exposure and that such a disorder was found in the 1994 VA examination. See 38 C.F.R. § 3.303 (2005). In other words, with precisely the same limited evidence of record, there appears to be no reasonable basis for the difference in conclusion reached by the August 1995 rating decision than that reached by the August 1997 rating decision - other than the existence of CUE as certified by the August 1997 rating decision. Accordingly, the August 10, 1995, rating decision denying service connection for polymorphous light eruption was clearly and unmistakably erroneous.The date of entitlement to an award of service connection is the day following separation from active service or the date entitlement arose, if the claim is received within one year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(b)(2).A "claim" is defined in the VA regulations as "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) (2005). An informal claim is "[a]ny communication or action indicating an intent to apply for one or more benefits." 38 C.F.R. § 3.155(a) (2005). In the instant case, the veteran's claim for entitlement to service connection for a rash was received on November 30, 1994. Since the claim was not received within one year of service separation, the effective date for service connection would be the date of receipt of claim or date entitlement arose, whichever is later. Accordingly, an effective date of November 30, 1994, the date of receipt of the veteran's original claim is warranted.As this decision is a grant of the benefit sought on appeal, a discussion of the Veterans Claims Assistance Act of 2000 and the effect it had on the veteran's claim is not needed.ORDERBased on a finding of CUE in an August 1995 rating decision, an effective date of November 30, 1994, for the award of service connection for polymorphous light eruption is granted, subject to the laws and regulations governing the payment of monetary benefits. ___________________________________________JOY A. MCDONALDVeterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs*************************************************************************

*************************************CUE - EED - TDIUhttp://www.va.gov/vetapp06/files2/0608909.txtCitation Nr: 0608909 Decision Date: 03/28/06 Archive Date: 04/04/06DOCKET NO. 03-11 644 ) DATE ) )On appeal from theDepartment of Veterans Affairs Regional Office in Reno, NevadaTHE ISSUEEntitlement to an effective date earlier than April 14, 2000, for the assignment of a total rating for compensation purposes based on individual unemployability (TDIU).REPRESENTATIONAppellant represented by: Disabled American VeteransWITNESS AT HEARING ON APPEALAppellantATTORNEY FOR THE BOARDJoseph Michael Horrigan, CounselINTRODUCTIONThe veteran had active military service from November 1966 to September 1970 and from July 1973 to July 1977.This appeal is before the Board of Veterans' Appeals (Board) from a May 2002 rating decision from the Reno, Nevada, Department of Veterans Affairs (VA) Regional Office (RO) that granted TDIU from April 14, 2000. In a February 2005 decision the Board denied entitlement to an effective date prior April 14, 2000, for a grant of TDIU. The veteran appealed this Board decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2005 Order, the Court vacated the Board's February 2005 decision and remanded the case back to the Board for further adjudication. The issue of entitlement to an effective date prior April 14, 2000, is now before the Board for further appellate consideration. FINDING OF FACTA claim for a TDIU was received at the RO on November 7, 1997 and a statement from a VA social worker was received on November 17, 1997 indicating that the veteran's PTSD rendered him unemployable. CONCLUSION OF LAWThe criteria for an effective date of November 17, 1997, for the grant of a TDIU have been met. 38 U.S.C.A. §§ 1155, 5110 (West 2002); 38 C.F.R. §§ 3.151, 3.400 (2005).REASONS AND BASES FOR FINDING AND CONCLUSIONThe Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2004).In Pelegrini v. Principi, 18 Vet. App. 112, 120-1 (2004) the United States Court of Appeals for Veterans Claims (Court) found that a VCAA notice letter consistent with 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) (2003) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession. During the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, Nos. 01-1917 and 02-1506, which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that the VCAA notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In the present appeal, the VCAA notice to the veteran dated in July 2004 specifically addressed the veteran's claim for an earlier effective date. This letter, in conjunction with the February 2003 Statement of the Case, described the law and regulations governing, and described the type of evidence necessary to establish, an effective date for the assignment of a TDIU. The July 2004 letter also informed him of who was responsible for obtaining what evidence and told the veteran to submit all relevant evidence and information in his possession. In Pelegrini the majority also held that the VCAA notice, as required by 38 U.S.C.A. § 5103(a), should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, the VCAA notice was sent to the appellant subsequent to the initial rating action currently being appealed. However, the appellant has had ample opportunity to submit additional argument and evidence after the VCAA notice was provided. The delayed notice did not, therefore, prejudice him. See also Mayfield v. Nicholson, 19 Vet. App. 103, 123-4 (2005) (per curium) (en banc) (holding that delayed notice is generally not prejudicial to a claimant).In addition, it does not appear that any evidence is available but not yet associated with the record. It is noted in this regard that, in a 90-Day Letter Response Form signed by the veteran and dated February 22, 2006, it was indicated that no relevant evidence was outstanding in this case. Accordingly, the Board will now adjudicate the veteran's claim for an earlier effective date for a TDIU based on the evidence of record. A September 1977 rating decision granted service connection and a noncompensable rating for bilateral chondromalacia from July 2, 1977. A June 1991 rating decision granted service connection and a noncompensable rating for malaria. A March 1997 hearing officer decision granted service connection and an initial 10 percent rating for PTSD from May 16, 1994. A June 1998 rating decision increased the rating for PTSD to 50 percent from May 16, 1994. A December 7, 1999 Board decision increased the rating for PTSD to 70 percent, and a January 2000 rating decision assigned the 70 percent rating from May 16, 1994. The May 2002 rating decision granted TDIU from April 14, 2000.Review of the record indicates a VA Form 21-8940 (Veteran's Application For Increased Compensation Based On Unemployability) signed by the veteran and dated November 7, 1997. This was accompanied by a statement from the veteran in which he clearly claimed to be unemployable due to his service connected psychiatric disability. The record also contains a statement from a social worker dated November 6, 1997 that indicated, in essence, that the veteran was in receipt of a Global Assessment of Functioning score (GAF) of 45 due to his psychiatric disability. (A GAF score of 45 indicates psychiatric symptomatology of such severity as to render the veteran unable to work.)Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for an increase will be the date of receipt of the claim or the date entitlement arose, whichever is later 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2004). For disability compensation stemming from direct service connection, the effective date will be the day following separation from active service or date entitlement arose if claim is received within 1 year of separation from active service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i) (2004).If an increase in disability occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C.A. 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. 3.400 (o)(1)(2); VAOPGCPREC 12-98 (1998). In making this determination the Board must consider all of the evidence, including that received prior to previous final decisions. Hazan v. Gober, 10 Vet App 511 (1997). Because the date of the veteran's claim was prior to the date the entitlement to a TDIU was factually ascertainable, the effective date for a grant of a TDIU in this case is November 17, 1997, the date of receipt of the statement from the social worker indicating that the veteran was unemployable with a GAF score of 45 due to service connected disability. An effective date earlier than November 1997 is not warranted because the record does not disclose a formal or informal claim for TDIU prior to that time. Moreover, the evidence does not clearly demonstrate unemployability prior to that date. For example, psychological tests performed in September 1995 included the Shipley Institute of Living Scale, Minnesota Multiphasic Personality Inventory-2, and the Personality Assessment Inventory revealed a GAF score of "55/60." VA clinical records reveal that the veteran's PTSD was assessed as having a GAF score of "50-55." GAF scores such as these do not demonstrate that the veteran's PTSD rendered him unemployable. Accordingly, the effective date for a grant of a TDIU in this case is November 17, 1997. ORDEREntitlement to an effective date of November 17, 1997 for the assignment of a TDIU is granted.____________________________________________WARREN W. RICE, JR.Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs*************************************************************************

**************************************CUE - EED - 3.157http://www.va.gov/vetapp06/files4/0622719.txtCitation Nr: 0622719 Decision Date: 07/31/06 Archive Date: 08/10/06DOCKET NO. 04-36 660 ) DATE ) )On appeal from theDepartment of Veterans Affairs Regional Office in Montgomery, AlabamaTHE ISSUEEntitlement to an effective date earlier than August 22, 2000, for the grant of service connection for major depression and generalized anxiety disorder.REPRESENTATIONAppellant represented by: Disabled American VeteransWITNESS AT HEARING ON APPEALAppellantATTORNEY FOR THE BOARDNathan Paul Kirschner, Associate CounselINTRODUCTIONThe veteran served on active duty from July 1956 to December 1976.This matter comes before the Board of Veteran's Appeals (Board) on appeal from a January 2004 rating decision of the Regional Office (RO) of the Department of Veterans' Affairs (VA) in Montgomery, Alabama, which denied entitlement to an effective date earlier than August 22, 2000, for service connection for major depression and generalized anxiety disorder. In December 2005 the veteran was afforded a Travel Board hearing before the undersigned Veterans Law Judge, who is rendering a determination in this claim.FINDINGS OF FACT1. In an April 27, 1998, decision the RO denied entitlement to service connection for a nervous condition; that determination has become final.2. In an April 2003 rating decision the RO granted entitlement to service connection for major depression and generalized anxiety; a 100 percent disability rating was assigned effective August 22, 2000.3. The veteran received psychiatric treatment at a VA facility on September 21, 1999.CONCLUSION OF LAWAn effective date of September 21, 1999, is warranted for the award of entitlement to service connection for major depression and generalized anxiety. 38 U.S.C.A. § 5110 (West 2002 & West Supp. 2005); 38 C.F.R. § 3.400 (2005).REASONS AND BASES FOR FINDINGS AND CONCLUSIONEarlier Effective DateThe veteran asserts that an effective date earlier than August 22, 2000, is warranted for his award of service connection for major depression and generalized anxiety disorder. Under the applicable regulations the Board finds that service connection was warranted as of September 21, 1999.VA regulations provide that the effective date for an award of disability compensation based on an original claim for direct service connection shall be the day following separation from active service or the date entitlement arose, if the claim is received within one year after separation from service; otherwise, and for reopened claims, it 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 2002); 38 C.F.R. § 3.400(b)(2)(i), ® (2005).VA regulations also provide that the terms claim and application mean 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) (2005). Generally, the date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1® (2005).Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA may be considered an informal claim. Such informal claim must identify the benefit sought and demonstrate an intent to apply for that identified benefit. If an executed application form is submitted to VA within one year after the date it was sent to the claimant, it will be deemed filed on the date the informal claim was received. See 38 C.F.R. § 3.155(a) (2005).The United States Court of Appeals for Veterans Claims (Court) has held that the failure to consider evidence which may be construed as an earlier application or claim, formal or informal, that would have entitled the claimant to an earlier effective date is remandable error. See Lalonde v. West, 7 Vet. App. 537, 380 (1999).A report of examination or hospitalization that meets the requirements of 38 C.F.R. § 3.157 will be accepted as an informal claim for benefits, if the report relates to a disability that may establish entitlement. Once a formal claim for compensation has been disallowed, receipt of one of the following will be accepted as an informal claim to reopen a previously denied claim: (1) Report of examination or hospitalization by VA or uniformed services. The date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim, only when such reports relate to examination or treatment of a disability for which service connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission. (2) Evidence from a private physician or layman. The date of receipt of such evidence will be accepted when the evidence furnished by or in behalf of the claimant is within the competence of the physician or layperson and shows the reasonable probability of entitlement to benefits. 38 C.F.R. § 3.157.The RO denied the veteran's claim for service connection for a nervous condition in an April 1998 decision. The RO issued the notice of its decision to the veteran in April 1998; however, he did not file a timely appeal. Therefore, that decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2005).As the veteran has not submitted a motion claiming clear and unmistakable error in the prior RO decision, the RO's April 27, 1998, decision is final as to the evidence then of record and as to any claim for service connection for a nervous condition filed prior to this date. 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400(q)(1)(ii) and ®. The date that the veteran filed an application for compensation benefits prior to this decision cannot serve as the effective date of his recent award of service connection for major depression and generalized anxiety disorder. See Hazan v. Gober, 10 Vet. App. 511, 520 (1997) (holding that for effective date purposes, the application must be the application on the basis of which the rating was awarded); Washington v. Gober, 10 Vet. App. 391, 393 (1997) ("The fact that the appellant had previously submitted claim applications, which had been denied, is not relevant to the assignment of an effective date based on a current application."); Wright v. Gober, 10 Vet. App. 343, 346-47 (1997) (holding that an application that had been previously denied could not preserve an effective date for a later grant of benefits based on a new application). Although the veteran may have suffered from a psychiatric disorder prior to receipt of his August 2000 claim, the effective date for service connection based on a reopened claim cannot be the date of receipt of any claim which was previously and finally denied. Lalonde v. West, 12 Vet. App. 377 (1999) (holding that "the effective date of an award of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA.")The facts in this case as to events after April 27, 1998, are undisputed. A list of VA treatment records showed that there was a Psychiatry Clinic Note in the file dated September 21, 1999. His diagnosis in a November 1999 VA treatment note was depression in partial remission. On August 22, 2000, the RO received a claim for service connection for a mental disorder. In a March 2002 rating decision the RO denied entitlement to service connection for a mental condition, previously claimed as a nervous condition. A Board decision in January 2003 found that new and material evidence had been submitted to reopen the veteran's claim for service connection for a psychiatric disorder and granted service connection for a psychiatric disorder, namely anxiety and depression. An April 2003 decision by the RO granted service connection for major depression and generalized anxiety with an evaluation of 100 percent effective August 22, 2000.Based upon the evidence of record, the Board finds that the April 27, 1998, RO decision is final and that the veteran's VA Mental Health treatment records from September 21, 1999, constituted an informal claim to reopen his claim for entitlement to service connection for a psychiatric disorder. Therefore, the veteran's claim for entitlement to an earlier effective date is granted, effective September 21, 1999.Duties to Notify and AssistThe Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) redefined the obligations of VA with respect to the duty to assist, and superseded the decision of the United States Court of Appeals for Veterans Claims (Court) in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam order) (holding that VA cannot assist in the development of a claim that is not well grounded). It also includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. In this case, in a letter, dated in June 2004, the veteran was notified of the VCAA, and of the respective duties to obtain evidence. As the Board has granted in part the veteran's claim for an earlier effective date and there is no allegation that additional evidence exists, a detailed discussion of the VCAA is unnecessary. Any failure of VA in fulfilling its duties to notify and assist the veteran is essentially harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDEREntitlement to an effective date of September 21, 1999, for the award of entitlement to service connection for major depression and generalized anxiety disorder is granted.____________________________________________MARK GREENSTREETVeterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs*************************************************************************

*************************************

[Trooper83]

Any advise on this matter would be greatly appreciated:

I am service connected at 30% for right ankle sprain. I had a permanent profile while in service that excluded running, jumping, standing for long periods of time and any other thing that would effect my ankle. I had to attend physical therapy up until I was discharged. I was discharged in October 2003, a few months later, maybe (3-4) I filed a disability claim for my ankle. I was homeless around that time and was never notified of a C&P exam, however in my records I saw that an exam was in deed scheduled. In my claims file its noted that I was denied benefits and notified of the decision on 5-02-2004. Records indicated that I was denied because VA did not receive evidence of complaints of treatment for this condition since leaving active duty. My question is, since I had just left the service and had stacks of medical evidence for my condition, is it a CUE because VA did not rate the evidence of record? ?????? 1) When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination, and the exam was scheduled in conjunction with an original compensation claim, the claim will be rated based on the evidence of record.

[carlie]

Any advise on this matter would be greatly appreciated:

I am service connected at 30% for right ankle sprain. I had a permanent profile while in service that excluded running, jumping, standing for long periods of time and any other thing that would effect my ankle. I had to attend physical therapy up until I was discharged. I was discharged in October 2003, a few months later, maybe (3-4) I filed a disability claim for my ankle. I was homeless around that time and was never notified of a C&P exam, however in my records I saw that an exam was in deed scheduled. In my claims file its noted that I was denied benefits and notified of the decision on 5-02-2004. Records indicated that I was denied because VA did not receive evidence of complaints of treatment for this condition since leaving active duty. My question is, since I had just left the service and had stacks of medical evidence for my condition, is it a CUE because VA did not rate the evidence of record? ?????? 1) When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination, and the exam was scheduled in conjunction with an original compensation claim, the claim will be rated based on the evidence of record.

Welcome,

This is a duplicate post.