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Fast Letter 12-08 Simplified Notification Letter

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carlie

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It works for me. I'm pretty sure this is what Veldrina was talking about not to long ago when she posted to one of my questions. Here's the link to our conversation. You'll need to scroll down to post #5. I hope this opens.

Coot

!!!BROKEN ARROW!!!

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cooter,

Yes - that is what it is.

The SNL has been brought up quite a few times now and I felt it

was time to see the info in black and white.

Carlie passed away in November 2015 she is missed.

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  • HadIt.com Elder

While I can see where time would be saved, I foresee a problem in that much of what is in the old notification letter, I believe, was required by the CAVC and specifically the "reasons and bases."

We should also note that any pending claim that is not addressed, in the SNL/decision is considered "decided" and "denied." jmo

pr

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I did get a new one and it is worth any thing. It did not tell me why the vet was given his rating at 0% for headaches. or why any of his other claims was denied but to say not do to service. This is a vet that did file for all of this has he was getting out!

Edited by Gulfvet45

James A. Bunker

Executive Director

National Gulf War Resource Center

Phone: 785-925-9887

Email: Do not post your email address.

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While I can see where time would be saved, I foresee a problem in that much of what is in the old notification letter, I believe, was required by the CAVC and specifically the "reasons and bases."

We should also note that any pending claim that is not addressed, in the SNL/decision is considered "decided" and "denied." jmo

pr

pr,

I agree COMPLETELY with your first part

BUT question the second part - I realize the following BVA case does not set precedence.

http://www.va.gov/ve...es1/1104456.txt

Citation Nr: 1104456

Decision Date: 02/03/11 Archive Date: 02/14/11

DOCKET NO. 04-08 905 ) DATE

On appeal from the

Department of Veterans Affairs Regional Office in Roanoke,

Virginia

THE ISSUE

Entitlement to an effective date earlier than September 14, 2001,

for service connection for residuals, right ophthalmic artery

aneurysm, post operative, associated with hypertension.

This matter comes before the Board of Veterans' Appeals (Board)

on appeal from an April 2003 rating decision issued by the

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

Roanoke, Virginia, which granted service connection for residuals

of a right periophthalmic/intracavernous aneurysm, effective

April 27, 2002. In May 2003, the Veteran filed a notice of

disagreement (NOD) with the effective date assigned.

In October 2003, the Veteran testified before a decision review

officer (DRO) at the RO. In a November 2003 rating decision, the

DRO granted an effective date of September 14, 2001 for the award

of service connection for residuals of the right ophthalmic

aneurysm.

In May 2005, the Veteran testified during a Board hearing in

Washington, D.C., before an Acting Veterans Law Judge who is no

longer employed by the Board. By correspondence dated in August

2008 the Veteran waived her right to an additional hearing. A

transcript of the hearing is of record.

In June 2006, the Board remanded the issue to the RO, via the

Appeals Management Center (AMC) for additional action. In a

September 2008 decision, the Board denied an earlier effective

date for the award of service connection for residuals of an

ophthalmic aneurysm, along with an earlier effective date for the

award of a 20 percent rating for residuals of a subarachnoid

hemorrhage. The Veteran, in turn, appealed the decision to the

United States Court of Appeals for Veterans Claims (the Court).

Pursuant to a March 2010 Joint Motion, the Court affirmed the

Board's decision denying an earlier effective date for the award

of a 20 percent rating for residuals of a subarachnoid hemorrhage

due to a cerebral artery aneurysm, and vacated the Board's

decision denying an earlier effective date for the award of

service connection for residuals of an ophthalmic aneurysm and

remanded the issue to the Board for further proceedings

consistent with the Joint Motion.

FINDINGS OF FACT

1. All notification and development action needed to fairly

adjudicate the claim on appeal has been accomplished.

2. The Veteran's initial claim for service connection for

residuals of a right ophthalmic aneurysm was received on

September 9, 1996; the claim remained pending and unadjudicated

until the April 2003 rating decision that awarded service

connection.

CONCLUSION OF LAW

The criteria for entitlement to an effective date of September 9,

1996, but no earlier, for the award of service connection for

residuals of a right ophthalmic aneurysm, have been met. 38

U.S.C.A. § 5110 (West 2002 & Supp. 2009); 38 C.F.R. § 3.400

(2010).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

VCAA

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No.

106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A.

§§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 &

Supp. 2009)) includes enhanced duties to notify and assist

claimants for VA benefits. VA regulations implementing the VCAA

were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159,

and 3.326(a) (2010). In this case the Veteran has requested an

effective date in September 1996 for the award of service

connection for residuals of a right ophthalmic aneurysm. Given

the favorable disposition of the claim, the Board finds that all

notification and development actions needed to fairly adjudicate

the claim have been accomplished.

Factual Background

On September 9, 1996, the Veteran submitted a claim for service

connection for "hypertension and also cerebral aneurysm as a

result of this problem." She indicated that an aortic aneurysm

occurred in August 1996 and that she would be having surgery at a

later date. Private medical records attached to her claim (from

Dr. N.) indicated that she had a subarachnoid hemorrhage

secondary to a cerebral aneurysm. It was also noted that the

Veteran had a "probable" right-sided aneurysm proximal to the

ophthalmic artery.

In October 1996, the Veteran submitted correspondence (VA Form

21-4138) indicating that she was submitting additional records

from Dr. N. relating to a second surgery in support of her

pending claim for service connection filed in September 1996.

The attached medical records indicated that the Veteran had an

incidental right ophthalmic artery aneurysm and that she

underwent an elective craniotomy and clipping of the aneurysm.

In a February 1997 rating decision, the RO denied service

connection for hypertension and for intracranial subarachnoid

hemorrhage secondary to a cerebral aneurysm. The rating decision

did not specifically mention the incidental right ophthalmic

aneurysm. The Veteran was notified of the denial in a letter

dated later that month.

Later in February 1997, the Veteran submitted additional service

treatment records and post-service medical records and requested

that her claim be reconsidered. In a February 1997 letter, Dr.

N. opined that in patients with aneurysms, hypertension may lead

to aneurysmal hemorrhage.

In a March 1997 rating decision, the RO again denied service

connection for hypertension and for intracranial subarachnoid

hemorrhage secondary to a cerebral aneurysm. The Veteran was

notified of the denial in a letter dated later that month.

In April 1997, the Veteran submitted additional medical evidence

and requested that her claims for service connection for

hypertension and for cerebral aneurysm be reconsidered. In an

attached April 1997 letter, Dr. D., a private physician, noted

that on three occasions during military service, it was noted

that the Veteran had high blood pressure. The physician further

opined that stress of military life can cause or worsen arterial

hypertension and that it was highly probable that the Veteran's

current conditions were related to military service.

In a September 1997 rating decision, the RO denied service

connection for hypertension and for subarachnoid hemorrhage. The

Veteran was notified of the decision in a letter dated that

month.

In October 1997, the Veteran submitted additional medical

evidence and requested reconsideration. The RO interpreted this

correspondence as a request to reopen her claims for service

connection, and, in a May 1998 rating decision, the RO found that

new and material evidence had not been received to reopen the

claim for service connection hypertension and for a secondary

subarachnoid hemorrhage. She was notified of the decision in a

letter dated in June 1998.

In July 1998, the Veteran filed a timely notice of disagreement

(NOD) with the decision "denying service connection for

hypertension with aneurysm." A statement of the case (SOC) was

issued in August 1998, and the Veteran filed a substantive appeal

in September 1998.

Subsequently, in an August 1999 rating decision, the RO granted

service connection for hypertension and for subarachnoid

hemorrhage middle cerebral artery aneurysm, PO, secondary to

hypertension. The Veteran was awarded a 10 percent disability

rating for each disability, effective April 10, 1997. In April

2000, she filed a NOD with the effective date assigned, and the

RO issued a SOC in October 2000. The Veteran filed a substantive

appeal in January 2001, which the RO determined was untimely.

Therefore, she did not perfect an appeal of either the effective

dates or the ratings awarded through this decision and they

became final in August 2000.

38 U.S.C.A. § 7105 (West 2002 & Supp. 2009); 38 C.F.R. § 3.104

(2010).

On September 14, 2001, the RO received correspondence from the

Veteran's Congressional representative. In a September 2001

letter, the Veteran requested assistance from her Congressional

representative with her claim for service connection for two

cerebral aneurysms. The RO interpreted this correspondence as an

informal claim for benefits.

In the April 2003 rating decision at issue on appeal, the RO

awarded service connection for right

periophthalmic/intracavernous aneurysm as secondary to the

Veteran's service-connected hypertension. The RO assigned a 30

percent rating, effective April 27, 2002. As mentioned, the RO

later assigned an effective date of September 14, 2001 (the date

of the informal claim for benefits).

Laws and Regulations

The effective date for an award of disability compensation based

on an original claim for direct service connection, if the claim

is received within one year after separation from service, shall

be the day following separation from active service or the date

entitlement arose; 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. Under VA law there is no basis for

a freestanding earlier effective date claim from matters

addressed in a final rating decision.

See Rudd v. Nicholson, 20 Vet. App. 296 (2006).

Under VA laws and regulations, a specific claim in the form

prescribed by VA must be filed in order for benefits to be paid

or furnished to any individual under laws administered by the VA.

38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). 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). 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®.

VA is required to identify and act on informal claims for

benefits. 38 U.S.C.A.

§ 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a). See also Servello

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

claimant, it will be considered filed as of the date of receipt

of the informal claim.

The Court has also held that VA is not required to conjure up

issues that were not raised by an appellant. See Brannon v.

West, 12 Vet. App. 32 (1998). To determine when a claim was

received, the Board must review all communications in the claims

file that may be construed as an application or claim. Quarles

v. Derwinski, 3 Vet. App. 129, 134 (1992).

Analysis

The Veteran asserts that she is entitled to an effective date in

September 1996 for the award of service connection for residuals

of a right ophthalmic artery aneurysm. She argues that she

originally filed a claim for service connection in September 1996

for hypertension and cerebral aneurysm and that medical records

associated with her claim clearly showed that she had two

aneurysms. Essentially, she argues that a claim for service

connection for a right ophthalmic aneurysm was reasonably raised,

that the RO never addressed the claim in its subsequent rating

decisions (in February 1997, March 1997, September 1997, May

1998, and August 1999), and that it remained pending until the

RO's April 2003 rating decision.

Initially the Board notes that the Federal Circuit has emphasized

that VA has a duty to fully and sympathetically develop the

Veteran's claim to its optimum, which includes determining all

potential claims raised by the evidence and applying all relevant

laws and regulations. See Szemraj v. Principi, 357 F.3d 1370,

1373 (Fed. Cir. 2004); Moody v. Principi, 360 F.3d 1306, 1310

(Fed. Cir. 2004); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir.

2001).

In this case, the Board finds that the Veteran's September and

October 1996 correspondence, read together with the accompanying

medical evidence, reasonably raised a claim for service

connection for an ophthalmic aneurysm. The Board points out that

the Veteran filed a claim for service connection for hypertension

and a cerebral aneurysm secondary to hypertension in September

1996. At that time she submitted medical evidence showing that

she also had a probable ophthalmic aneurysm. In October 1996,

she stated that she had had a second surgery and wished to submit

additional medical evidence in support of her claim for service

connection. This medical evidence related specifically to the

surgery associated with the right ophthalmic aneurysm.

Having determined that a claim for service connection for a

residuals of a right ophthalmic aneurysm was reasonably raised by

the record in September and October 1996, the next question at

issue is whether that claim remained unadjudicated and pending

until the RO's April 2003 rating decision that awarded service

connection.

The Board notes that the applicable case law on the question of

unadjudicated claims is conflicting. In Deshotel v. Nicholson,

457 F.3d 1258 (Fed. Cir. 2006), the United States Court of

Appeals for the Federal Circuit (Federal Circuit) held that where

a veteran files more than one claim at a time and the rating

decision acts on one claim but not another, the second claim is

deemed denied, and the appeal period begins to run.

In Ingram v. Nicholson, 21 Vet. App. 232 (2007), however, the Court held that

a reasonably raised claim remains pending until there is a

recognition of the substance of the claim in an RO decision from

which a claimant could deduce that the claim was adjudicated, or

an explicit adjudication of the subsequent claim for the same

disability.

Here, the RO's rating decisions in February 1997, March 1997,

September 1997, May 1998, and August 1999, addressed the

Veteran's claims for service connection for hypertension and for

subarachnoid hemorrhage resulting from cerebral aneurysm

(secondary to hypertension), but failed to specifically address a

claim for service connection for residuals of a right ophthalmic

aneurysm.

Under these circumstances, the Federal Circuit's holding in

Deshotel would support a finding that the claim for service

connection for residuals of a right ophthalmic aneurysm was

implicitly denied by the RO's rating decisions in February 1997,

March 1997, September 1997, May 1998, and August 1999.

The Board notes, however, that none of these rating decisions addressed the

substance of the claim for service connection for residuals of a

right ophthalmic aneurysm nor could it be reasonably deduced that

the claim had been adjudicated.

Hence, following the Court's holding in Ingram, the claim for service connection for residuals

of a right ophthalmic aneurysm would be an unadjudicated claim

that remained pending.

As noted above, the case law on this matter is unsettled, with apparently conflicting holdings in

Deshotel and Ingram, at least when applied to the facts of this

particular case.

To provide the Veteran with the greatest possible consideration, however, the Board will apply Ingram and

therefore finds that the September 1996 claim remained pending

until the April 2003 rating decision.

Consequently, the Board finds that September 9, 1996 is the date

of claim in this case and should be the effective date for the

establishment of service connection for residuals of a right

ophthalmic aneurysm. To this extent, the appeal is granted.

38 U.S.C.A. § 5107(b).

ORDER

Entitlement to an effective date from September 9, 1996, but no

earlier, for the award of service connection for residuals of a

right ophthalmic aneurysm is granted, subject to the regulations

governing the payment of monetary awards.

Carlie passed away in November 2015 she is missed.

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