The following is from select CAVC cases showing that if you were awarded benefits, and you told your doctor before the effective date of your claim you were unemployed, then you can appeal an effective date:
Else vs West
On appeal, the
appellant essentially contends that the RO, in 1990, had treated the
appellant's submission of the 1989 private medical records as an
Previous Hitinformal claimNext Hit for an increase and that, because the RO never forwarded to
the appellant a formal application form, the time for filing a formal
Question
broncovet
The following is from select CAVC cases showing that if you were awarded benefits, and you told your doctor before the effective date of your claim you were unemployed, then you can appeal an effective date:
Else vs West
On appeal, the
appellant essentially contends that the RO, in 1990, had treated the
appellant's submission of the 1989 private medical records as an
Previous Hitinformal claimNext Hit for an increase and that, because the RO never forwarded to
the appellant a formal application form, the time for filing a formal
application was tolled.
http://search.vetapp.gov/isysquery/3583606...a4fa2cf6/2/doc/
Mingo vs Nicholson
http://search.vetapp.gov/isysquery/3583606...a4fa2cf6/3/doc/
<a name="term1_9">
VA is required to identify and act on informal claims for benefits. 38 U.
S.C. 5110(
(3) (2006); 38 C.F.R. 3.1(p), 3.155(a). The Board
commits remandable error when it fails to consider evidence that may be
construed as an earlier application or claim, formal or informal,
entitling the claimant to an EED See 38 U.S.C. 7104(
a); Servello v. Derwinski, 3 Vet.App. 196, 198-99 (1992).
Although "[t]he mere existence of medical records generally cannot be
construed as an informal claim such records may constitute an informal claim"when an underlying claim has been awarded . . . or when an
underlying claim has been denied and the medical records evidence new and
material evidence to reopen the claim." Criswell v. Nicholson, 20 Vet.App.
501, 504 (2006). In the case of a report of examination or
hospitalization by VA, "when such reports relate to examination or
treatment of a disability for which service-connection has previously been
established," "[t]he date of outpatient or hospital examination or date of
admission to a VA . . . hospital will be accepted as the date of receipt
of a claim." 38 C.F.R. 3.157(
(1) (2007). An for a
rating increase triggered by receipt of medical records may implicate
consideration of TDIU. See Norris v. West, 12 Vet.App. 413, 420-22 (1999);
see also Sears v. Principi, 16 Vet.App. 244, 249-50 (2002), aff'd, 349 F.
3d 1326 (Fed. Cir. 2003).
In this case, the appellant alleges that, because "VA is the primary
source of [her] health care, and since she was already service-connected,
the VA had a continuing obligation to adjudicate any claims for additional
benefits related to her service-connected conditions based on . . . VA
medical treatment." Appellant's Br. at 7. The Secretary responds that "
evidence may exist that could be used to establish a claim for an
EED for TDIU; however, there is no assertion that actual
evidence does, indeed, exist." Secretary's Br. at 12. He goes on to
state that "[t]he mere existence of evidence prior to May 1998 . . . would
not create an informal claim nor would it constitute a claim outright."
Secretary's Br. at 12. The Secretary's argument is unavailing; if there
are medical records that document a worsening of the appellant's service-
connected sinus condition prior to the
appellant's inquiry in May 1998, such records might constitute an
informal claim for an increased rating based on 38 C.F.R. 3.157(:D.
Indeed, the appellant notes that the RO relied on VA treatment reports
from March 1998 throughout its claim evaluation. Appellant's Br. at 6 (
citing R. at 72-73, 75-77, and 79-82). Because the Board did not consider
these treatment records as potentially raising an informal claim and
because the record before the Court is devoid of evidence that VA
considered additional prior-treatment records, the Court cannot conclude
that records relevant to establishing an
earlier effective date
do not
exist. ....
Jones-Shinseki
http://search.vetapp.gov/isysquery/e76aa21...dd3db/2/hilite/
Mr. Jones argues that, under Myers v. Principi, 16 Vet.App. 228 (2002), a VA procedural
error can cause a claim stream to remain open. In particular, he contends that once he filed an NOD
with the February 1974 RO decision, that claim, then in appellate status, remained open and pending
until issuance of an SOC or Board decision adjudicating that claim. He argues that no finality
attached to the subsequent adjudications as a result of VA's failure to issue an SOC following his
March 1974 NOD.
Once a decision is issued by the RO, a claimant has the right to "one review on appeal to the
Secretary." 38 U.S.C. § 7104(a). The appeals process begins with a claimant's filing of an NOD
from an RO decision, which triggers VA's duty to issue an SOC. See 38 U.S.C. § 7105(a), (d)(1).
Only after an SOC has been issued may a claimant file a Substantive Appeal to the Board. See
38 U.S.C. § 7105(d)(1).
If the Secretary fails to act on a claim or if he fails to provide the veteran with information
or material critical to the appeal, that claim remains pending. See Cook v. Principi, 318 F.3d 1340,
1334 (2002) (citing Hauck v. Brown, 6 Vet.App. 518 (1994)); Norris v. West, 12 Vet.App. 413, 422
(1999); see also 38 C.F.R. § 3.160© (2008) (defining a "pending claim" as "[a]n application, formal
or informal, which has not been finally adjudicated"). Here, the Secretary does not contest
Mr. Jones's contention that his September 1973 claim was put into appellate status by a March 1974
NOD and remained pending through subsequent adjudications because of VA's failure to issue an
SOC; the Court will not hold otherwise. See Tablazon v. Brown, 8 Vet.App. 359 (1995)
(determining that a 1975 RO decision never became final, because without an SOC, the appellant
was unable to file an appeal to the Board).
This Court has indicated, however, that where the claim was placed into appellate status by
virtue of an NOD, subsequent RO decisions cannot resolve the pending claim. "[O]nce an NOD has
been filed, further RO decisions, which do not grant the benefit sought, cannot resolve the appeal
that remains pending before the Board. Only a subsequent Board decision can resolve an appeal that
was initiated but not completed." Juarez, 21 Vet.App. at 543. The Court agrees that Juarez's
reasoning applies here: An appeal can only be resolved by an appellate body, i.e., the Board. In other
words, VA's failure to provide appellate review can only be cured by subsequent Board adjudication
of the same claim.
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