lumbosacral ? ? ? Based On An Original Claim ?

[carlie]

In studying some BVA and Court cases, researching CUE for EED, I have come across several instances inwhere they refer to "Based on an original claim".

I don't understand this due to the fact that - since the original claim was made, appeal times have expired, Nod's have not been sent in nor perfected, old record's were miracuously found or obtained, service connection was denied several times prior, etc... The one common that I find in these cases that refer to "Based on an original claim", is that THE ORIGINAL Claim was filed within one year of Honorable separation.I'm going to cut & paste some brief info. here so manybe my buddies out there can help me grap an understanding of this and how it works.

Thanks in advance for all your wonderful help,

carlie

Citation Nr: 0321596

Decision Date: 08/28/03 Archive Date: 09/04/03

DOCKET NO. 00-13 932 ) DATE

)

)

On appeal from the

Department of Veterans Affairs Regional Office in Waco, Texas

THE ISSUE

Entitlement to an effective date earlier than February 10,

1997, for the award of service connection for chronic

lumbosacral strain.

REPRESENTATION

Appellant represented by: The American Legion

WITNESS AT HEARINGS ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

T. Douglas, Counsel

INTRODUCTION

The appellant is a veteran who served on active duty from

June 1951 to April 1952, from April 1953 to November 1953,

and from July 1961 to June 1962. This matter comes before

the Board of Veterans' Appeals (Board) on appeal from a March

2000 rating decision by the Montgomery, Alabama, Regional

Office (RO) of the Department of Veterans Affairs (VA). In

March 2003, the veteran testified at a personal hearing

before the undersigned. A transcript of that hearing is of

record.

FINDINGS OF FACT

1. The veteran first submitted an application for service

connection for residuals of a back injury on June 25, 1962;

his claim was received within one year of his discharge from

active service on June 22, 1962.

2. A November 1962 rating decision was clearly and

unmistakably erroneous in denying service connection for

chronic lumbosacral strain.

CONCLUSION OF LAW

An effective date of June 23, 1962, is warranted for the

award of service connection for chronic lumbosacral strain.

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

REASONS AND BASES FOR FINDINGS AND CONCLUSION

There has been a significant recent change in VA law. On

November 9, 2000, the Veterans Claims Assistance Act of 2000

(VCAA) (codified at 38 U.S.C.A. § 5100 et seq.) became law.

Regulations implementing the VCAA have also been published.

38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA and

implementing regulations apply in the instant case. See

VAOPGCPREC 11-2000. Although the record does not show the

veteran was adequately informed of the provisions of the VCAA

and how it applies to his claim, in light of the favorable

outcome of this decision the Board finds the veteran is not

prejudiced by this action.

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); 38 C.F.R.

§ 3.400. For an award involving error in a prior decision,

the effective date is the date benefits would have been

payable if made on the date of the reversed decision.

38 C.F.R. § 3.400(k).

Previous determinations which are final and binding,

including decisions of service connection, degree of

disability, age, marriage, relationship, service, dependency,

line of duty, and other issues, will be accepted as correct

in the absence of clear and unmistakable error (CUE). Where

evidence establishes such error, the prior decision will be

reversed or amended. 38 C.F.R. § 3.105(a).

The United States Court of Appeals for Veterans Claims

(Court) has held that CUE is a very specific and rare kind of

error, of fact or law, that when called to the attention of

later reviewers compels the conclusion, to which reasonable

minds could not differ, that the result would have been

manifestly different but for the error. Fugo v. Brown, 6

Vet. App. 40, 43 (1993). The Court established a three-part

test to determine whether CUE is present in a prior

determination; (1) either the correct facts, as they were

known at the time, were not fully adjudicated (i.e., more

than a simple disagreement as to how the facts were weighed

or evaluated), or statutory or regulatory provisions extant

at the time were incorrectly applied; (2) the error must be

"undebatable" and of the sort "which, had it not been

made, would have manifestly changed the outcome at the time

it was made;" and, (3) a determination that there was CUE

must be based on the record and the law that existed at the

time of the prior adjudication in question. Damrel v. Brown,

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

Vet. App. 310, 313-14 (1992) (en banc)).

In this case, a November 7, 1962, rating decision denied

service connection for chronic lumbosacral strain because

there was no record of a back injury during active service.

It was noted, however, that VA examination revealed a chronic

lumbosacral strain. Also, apparently of record at the time

of that decision, based upon its location in the claims file

and specific references in the rating decision, was a service

department hospital report signed by a physician on June 17,

1962, indicating the veteran sustained a back injury in March

1962. The report further noted that an extensive

neurosurgical service evaluation in April 1962 had been

normal, except for "some muscle spasm and tenderness in the

lumbosacral region."

Based upon the evidence then of record, the Board finds the

November 7, 1962, rating decision denying service connection

for chronic lumbosacral strain was clearly and unmistakably

erroneous. It is undebatable that existing service medical

records demonstrated at that time that the veteran had

incurred a back injury in March 1962, with objective evidence

of muscle spasm and lumbosacral tenderness in an April 1962

evaluation, and that an existing VA examination in October

1962 included a diagnosis of chronic lumbar spine strain.

This error had it not been made would have manifestly changed

the outcome of the previous rating determination.

The record also shows that the veteran first submitted an

application for service connection for residuals of a back

injury on June 25, 1962, within one year of his discharge

from active service on June 22, 1962. Therefore, as a result

of the reversal the November 7, 1962, rating decision based

upon CUE, the Board finds that an effective date of June 23,

1962, is warranted for the award of service connection for

chronic lumbosacral strain.

ORDER

An effective date of June 23, 1962, is granted for the award

of service connection for chronic lumbosacral strain.

____________________________________________

GEORGE R. SENYK

Veterans Law Judge, Board of Veterans' Appeals

IMPORTANT NOTICE: We have attached a VA Form 4597 that tells

you what steps you can take if you disagree with our

decision. We are in the process of updating the form to

reflect changes in the law effective on December 27, 2001.

See the Veterans Education and Benefits Expansion Act of

2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the

meanwhile, please note these important corrections to the

advice in the form:

? These changes apply to the section entitled "Appeal to

the United States Court of Appeals for Veterans

Claims." (1) A "Notice of Disagreement filed on or

after November 18, 1988" is no longer required to

appeal to the Court. (2) You are no longer required to

file a copy of your Notice of Appeal with VA's General

Counsel.

? In the section entitled "Representation before VA,"

filing a "Notice of Disagreement with respect to the

claim on or after November 18, 1988" is no longer a

condition for an attorney-at-law or a VA accredited

agent to charge you a fee for representing you.

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

OKAY NOW TO TAKE THIS ONE STEP FURTHER :

Currently I would think this would be diagnostic code 5295 -- Lumbar strain,

With Muscle Spasm it would be evaluated at 20 %. So would the vet be paid this 20 % retroactively from June 23, 1962, day following separation ?

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

Now as to the diagnostic code dated in 1962 - I don't know if it was the same code & qualifications or not BUT lets just say hypothetically muscle spasm

had a 10 % minimum compensable evaluation -- then would this mean the veteran would win retro at 10 % -- Effective date of the 10% compensation back to June 23, 1962, day following separation :due to

1) Direct Service connection,

2) Claim filed within one year of separation and

3) CUE that reversed the November 7, 1972 denial for service connection, due to the records of evidence at the time the ORIGINAL Claim was denied ?

I realize this is a lengthly read -- and hope I've not left you as confused as myself.

Thanks, carlie

[Berta]

That is a GREAT find Carlie!

It circumvented Bell too-

It is an obvious legal error on its face-this vet should have gotten retro back to 1962.

[Guest frank]

HI

In studying some BVA and Court cases, researching CUE for EED, I have come across several instances inwhere they refer to "Based on an original claim".

I don't understand this due to the fact that - since the original claim was made, appeal times have expired, Nod's have not been sent in nor perfected, old record's were miracuously found or obtained, service connection was denied several times prior, etc... The one common that I find in these cases that refer to "Based on an original claim", is that THE ORIGINAL Claim was filed within one year of Honorable separation.I'm going to cut & paste some brief info. here so manybe my buddies out there can help me grap an understanding of this and how it works.

Thanks in advance for all your wonderful help,

carlie

Citation Nr: 0321596

Decision Date: 08/28/03 Archive Date: 09/04/03

DOCKET NO. 00-13 932 ) DATE

)

)

On appeal from the

Department of Veterans Affairs Regional Office in Waco, Texas

THE ISSUE

Entitlement to an effective date earlier than February 10,

1997, for the award of service connection for chronic

lumbosacral strain.

REPRESENTATION

Appellant represented by: The American Legion

WITNESS AT HEARINGS ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

T. Douglas, Counsel

INTRODUCTION

The appellant is a veteran who served on active duty from

June 1951 to April 1952, from April 1953 to November 1953,

and from July 1961 to June 1962. This matter comes before

the Board of Veterans' Appeals (Board) on appeal from a March

2000 rating decision by the Montgomery, Alabama, Regional

Office (RO) of the Department of Veterans Affairs (VA). In

March 2003, the veteran testified at a personal hearing

before the undersigned. A transcript of that hearing is of

record.

FINDINGS OF FACT

1. The veteran first submitted an application for service

connection for residuals of a back injury on June 25, 1962;

his claim was received within one year of his discharge from

active service on June 22, 1962.

2. A November 1962 rating decision was clearly and

unmistakably erroneous in denying service connection for

chronic lumbosacral strain.

CONCLUSION OF LAW

An effective date of June 23, 1962, is warranted for the

award of service connection for chronic lumbosacral strain.

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

REASONS AND BASES FOR FINDINGS AND CONCLUSION

There has been a significant recent change in VA law. On

November 9, 2000, the Veterans Claims Assistance Act of 2000

(VCAA) (codified at 38 U.S.C.A. § 5100 et seq.) became law.

Regulations implementing the VCAA have also been published.

38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA and

implementing regulations apply in the instant case. See

VAOPGCPREC 11-2000. Although the record does not show the

veteran was adequately informed of the provisions of the VCAA

and how it applies to his claim, in light of the favorable

outcome of this decision the Board finds the veteran is not

prejudiced by this action.

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); 38 C.F.R.

§ 3.400. For an award involving error in a prior decision,

the effective date is the date benefits would have been

payable if made on the date of the reversed decision.

38 C.F.R. § 3.400(k).

Previous determinations which are final and binding,

including decisions of service connection, degree of

disability, age, marriage, relationship, service, dependency,

line of duty, and other issues, will be accepted as correct

in the absence of clear and unmistakable error (CUE). Where

evidence establishes such error, the prior decision will be

reversed or amended. 38 C.F.R. § 3.105(a).

The United States Court of Appeals for Veterans Claims

(Court) has held that CUE is a very specific and rare kind of

error, of fact or law, that when called to the attention of

later reviewers compels the conclusion, to which reasonable

minds could not differ, that the result would have been

manifestly different but for the error. Fugo v. Brown, 6

Vet. App. 40, 43 (1993). The Court established a three-part

test to determine whether CUE is present in a prior

determination; (1) either the correct facts, as they were

known at the time, were not fully adjudicated (i.e., more

than a simple disagreement as to how the facts were weighed

or evaluated), or statutory or regulatory provisions extant

at the time were incorrectly applied; (2) the error must be

"undebatable" and of the sort "which, had it not been

made, would have manifestly changed the outcome at the time

it was made;" and, (3) a determination that there was CUE

must be based on the record and the law that existed at the

time of the prior adjudication in question. Damrel v. Brown,

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

Vet. App. 310, 313-14 (1992) (en banc)).

In this case, a November 7, 1962, rating decision denied

service connection for chronic lumbosacral strain because

there was no record of a back injury during active service.

It was noted, however, that VA examination revealed a chronic

lumbosacral strain. Also, apparently of record at the time

of that decision, based upon its location in the claims file

and specific references in the rating decision, was a service

department hospital report signed by a physician on June 17,

1962, indicating the veteran sustained a back injury in March

1962. The report further noted that an extensive

neurosurgical service evaluation in April 1962 had been

normal, except for "some muscle spasm and tenderness in the

lumbosacral region."

Based upon the evidence then of record, the Board finds the

November 7, 1962, rating decision denying service connection

for chronic lumbosacral strain was clearly and unmistakably

erroneous. It is undebatable that existing service medical

records demonstrated at that time that the veteran had

incurred a back injury in March 1962, with objective evidence

of muscle spasm and lumbosacral tenderness in an April 1962

evaluation, and that an existing VA examination in October

1962 included a diagnosis of chronic lumbar spine strain.

This error had it not been made would have manifestly changed

the outcome of the previous rating determination.

The record also shows that the veteran first submitted an

application for service connection for residuals of a back

injury on June 25, 1962, within one year of his discharge

from active service on June 22, 1962. Therefore, as a result

of the reversal the November 7, 1962, rating decision based

upon CUE, the Board finds that an effective date of June 23,

1962, is warranted for the award of service connection for

chronic lumbosacral strain.

ORDER

An effective date of June 23, 1962, is granted for the award

of service connection for chronic lumbosacral strain.

____________________________________________

GEORGE R. SENYK

Veterans Law Judge, Board of Veterans' Appeals

IMPORTANT NOTICE: We have attached a VA Form 4597 that tells

you what steps you can take if you disagree with our

decision. We are in the process of updating the form to

reflect changes in the law effective on December 27, 2001.

See the Veterans Education and Benefits Expansion Act of

2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the

meanwhile, please note these important corrections to the

advice in the form:

? These changes apply to the section entitled "Appeal to

the United States Court of Appeals for Veterans

Claims." (1) A "Notice of Disagreement filed on or

after November 18, 1988" is no longer required to

appeal to the Court. (2) You are no longer required to

file a copy of your Notice of Appeal with VA's General

Counsel.

? In the section entitled "Representation before VA,"

filing a "Notice of Disagreement with respect to the

claim on or after November 18, 1988" is no longer a

condition for an attorney-at-law or a VA accredited

agent to charge you a fee for representing you.

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

OKAY NOW TO TAKE THIS ONE STEP FURTHER :

Currently I would think this would be diagnostic code 5295 -- Lumbar strain,

With Muscle Spasm it would be evaluated at 20 %. So would the vet be paid this 20 % retroactively from June 23, 1962, day following separation ?

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

Now as to the diagnostic code dated in 1962 - I don't know if it was the same code & qualifications or not BUT lets just say hypothetically muscle spasm

had a 10 % minimum compensable evaluation -- then would this mean the veteran would win retro at 10 % -- Effective date of the 10% compensation back to June 23, 1962, day following separation :due to

1) Direct Service connection,

2) Claim filed within one year of separation and

3) CUE that reversed the November 7, 1972 denial for service connection, due to the records of evidence at the time the ORIGINAL Claim was denied ?

I realize this is a lengthly read -- and hope I've not left you as confused as myself.

Thanks, carlie

HI CARLIE, I AM NO PRO LIKE YOU BUT WHAT YOU STATE AS TOLD TO ME FROM VA THE CLAIM GOES BACK TO THE QRIGINAL DATE OF CLAIM BUT UNDER THIS NEW LAW OPERATION FREEDOM ANY ONE CAN REOPEN A CLAIM NO MATTER WHAT THE DATE IS IF THEY HAVE NEW EVEDINCE, FRANK

[carlie]

Frank,

When you bring in NEW Evidence on the claim, you blow out the chance getting your EED (earlier effective date).

NEW and Marterial Evidence is used to re-open previous claim. Then your

Effective Date would be the date of the re-open.

That's how I understand it.

I'm going to cut and paste Status of Claim here from 38 CFR so you'll see what I mean.

There ary many more types of claims than what are listed below but this might clear some things up.

carlie

The following definitions are applicable to claims for pension, compensation, and dependency and indemnity compensation.

See §3.155.

((a) Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris 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 1 year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim.

( A communication received from a service organization, an attorney, or agent may not be accepted as an informal claim if a power of attorney was not executed at the time the communication was written.

© When a claim has been filed which meets the requirements of §3.151 or §3.152, an informal request for increase or reopening will be accepted as a claim.

Original claim. An initial formal application on a form prescribed by the Secretary. (See §§3.151, 3.152).

© Pending claim. An application, formal or informal, which has not been finally adjudicated.

(d) Finally adjudicated claim. An application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of 1 year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. (See §§20.1103 and 20.1104 of this chapter.)

(e) Reopened claim. Any application for a benefit received after final disallowance of an earlier claim, or any application based on additional evidence or a request for a personal hearing submitted more than 90 days following notification to the appellant of the certification of an appeal and transfer of applicable records to the Board of Veterans Appeals which was not considered by the Board in its decision and was referred to the agency of original jurisdiction for consideration as provided in §20.1304((1) of this chapter.

(Authority: 38 U.S.C. 501)

(f) Claim for increase. Any application for an increase in rate of a benefit being paid under a current award, or for resumption of payments previously discontinued.