Interesting Bva Case On Statement At C&p Exam As Informal Claim To Reopen

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http://www.va.gov/vetapp03/Files/0317038.txt

Citation Nr: 0317038

Decision Date: 07/22/03 Archive Date: 07/31/03

DOCKET NO. 00-19 727 ) DATE

)

)

On appeal from the

Department of Veterans Affairs Regional Office in

Indianapolis, Indiana

THE ISSUE

Entitlement to an effective date prior to August 29, 1997 for

a grant of service connection for numbness of the fingers of

the left hand diagnosed as cubital tunnel syndrome of the

left wrist.

REPRESENTATION

Appellant represented by: Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Kelli A. Kordich, Counsel

INTRODUCTION

The veteran served on active duty from May 1987 to January

1991.

This matter comes before the Board of Veterans' Appeals

(Board) on appeal from a December 1999 rating decision of the

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

Indianapolis, Indiana, which granted service connection for

cubital tunnel syndrome, left wrist, and assigned an

evaluation of 20 percent effective August 29, 1997.

In an order issued January 2003, the United States Court of

Appeals for Veterans Claims (Court) vacated the Board's

decision to the extent that it failed to discuss the 1995 C &

P examination report and the extent this report could be

considered an informal claim to reopen. Therefore, the

statement of reasons or bases for the Board's conclusion that

"there were no informal claims filed" is inadequate to

"facilitate judicial review" citing Gilbert v. Derwinski, 1

Vet. App. 49, 57 (1990), and the decision of the Board was

vacated and remanded.

FINDINGS OF FACT

1. The veteran filed a claim for service connection for

numbness of the fingers of the left hand in February 1991.

2. A Board decision dated March 1995 denied the veteran's

claim for service connection for numbness of the fingers of

the left hand.

3. When examined at a VA facility on July 12, 1995, the

veteran reported left hand numbness; this statement is an

informal request to reopen the claim of service connection

for numbness of the fingers of the left hand, diagnosed as

cubital tunnel syndrome of the left wrist

4. A physician's report dated in 1998 and VA examination

reports dated in 1998 and 1999 were added to the record;

these reports constituted new and material evidence

warranting reopening of the claim for service connection for

numbness of the fingers of the left hand.

5. In a December 1999 rating decision, the RO resolved the

veteran's claim of service connection for numbness of the

fingers of the left hand by granting service connection for

cubital tunnel syndrome.

CONCLUSION OF LAW

The requirements for an effective date of July 12, 1995, for

the grant of service connection for cubital tunnel syndrome

have been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002);

38 C.F.R. §§ 3.1(p), 3.155, 3.157, 3.400(q) (2002).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The veteran filed his original claim in February 1991. His

claim was denied by a June 1991 rating decision. He was

notified of the decision and his appellate rights by RO

letter dated in July 1991. The veteran appealed this

decision. The Board, in a March 1995 decision, found that

the veteran's claim was not well grounded. The veteran did

not appeal the Board's decision.

The veteran had a VA examination on July 12, 1995. According

to the report of the examination, the veteran reported that

his left hand was numb, and he had left shoulder pain with

abduction.

On August 29, 1997, the veteran requested that his claim for

service connection for numbness of the fingers of the left

hand diagnosed as cubital tunnel syndrome of the left wrist

be reopened. A December 1999 rating decision granted service

connection for cubital tunnel syndrome and assigned a 20

percent evaluation effective August 29, 1997. The veteran

appealed the assigned effective date for the grant of service

connection.

In two January 1999 letters addressed to the veteran's

Senators, the veteran indicated that he began the appeal

process at his RO by filling out a VA Form 9 to be "hand

carried to the VA office down the hall." In an October 1999

letter from the veteran to the editor of the Indianapolis

Star Newspaper, he indicated that soon after he received the

March 1995 Board decision, he went to his representative and

filled out the necessary paperwork to appeal the adverse

decision. He further indicated that his appeal was lost. In

his November 2000 RO hearing, he testified that in April 1995

he took time out of class and initiated an appeal of the

March 1995 Board decision.

Except as otherwise provided, the effective date of an

evaluation and award of compensation based on an original

claim or a claim reopened after final disallowance, will be

the date of receipt of the claim or the date entitlement

arose, whichever is the later. 38 C.F.R. § 3.400.

The effective date of an award of disability compensation to

a veteran shall be the day following the date of discharge or

release if application is received within one year from such

date of discharge or release. Otherwise, when disability

compensation is granted when new and material evidence is

received after a final disallowance, the effective date will

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

arose, whichever is later. 38 U.S.C.A. § 5110 (a), (b) (1),

(i); 38 C.F.R. § 3.400 (q) (1) (ii), ®.

Any communication from or action by a veteran indicating an

intent to apply for a benefit under laws administered by VA

may be considered an informal claim. 38 C.F.R. § 3.155. A

report of examination or hospitalization will be accepted as

an informal claim for benefits if the report relates to a

disability which may establish entitlement, but only in a

claim for increase or to reopen. 38 C.F.R. § 3.157.

In the present case, the veteran's claim for numbness of the

fingers of the left hand was denied by a Board decision in

March 1995. At his July 12, 1995, VA examination, the

veteran reported that his left hand was numb. Under the

provisions of 38 C.F.R. § 3.157, reports of a VA examination

may be accepted as an informal request to reopen a claim for

service connection. Sears v. Principi, 16 Vet. App. 244

(2002).

It is found that the veteran's report of numbness in his left

hand at his July 12, 1995, VA examination is an informal

request to reopen his claim for entitlement to service

connection for numbness of the fingers of the left hand

diagnosed as cubital tunnel syndrome of the left wrist.

Under the provisions of 38 C.F.R. § 3.155, if an informal

claim results in a grant of benefits, the date of the

informal claim will be taken as the date of claim for

purposes of establishing an effective date. Therefore,

entitlement to an effective date of July 12, 1995, for the

grant of service connection for cubital tunnel syndrome of

the left wrist is granted.

The veteran contends that an effective date earlier than 1995

is warranted. However, the Board of Veterans' Appeals

decision of March 1995 was not appealed. The veteran states

that he took steps to appeal the March 1995 decision, but the

record is devoid of documentary evidence of a request for

reconsideration filed with the Board of Veterans' Appeals or

a Notice of Appeal filed with the Court of Appeals for

Veterans Claims. Furthermore, the veteran's allegation that

his service representative should have initiated the

appellate process does not state a viable basis for

overcoming the finality of the Board's decision. If the

veteran in fact gave information or documents to the service

representative, they were not forwarded to VA or to the

Court. Because the service representative is not a VA

employee, furnishing such documents or information to the

service representative, without direct contact with VA or the

Court, cannot serve as a request for reconsideration or a

notice of appeal.

Under the applicable effective date provisions, the effective

date cannot be earlier than the date of the first claim after

the Board denial of March 1995. As has been noted by the

Court, a VA examination report can serve as an informal claim

for either an increased rating or a request to reopen a

claim, but, once the informal claim is accepted, the

effective dates for a reopened claim must be established

under regulatory provisions that are different from the

provisions applicable to increased ratings. Sears v.

Principi, 16 Vet. App. 244 (2002).

Under the provisions applicable to requests to reopen claims

for service connection, the effective date may not be earlier

than the date of claim, unless the new and material evidence

warranting the reopening was received within the appeal

period or prior top the appellate decision. 38 C.F.R.

§ 3.400(q). In this case, however, the new and material

evidence was received no earlier than 1998. At the VA

examination of July 12, 1995, the veteran stated he had

numbness of the left hand, but the purpose of the examination

was to determine the nature of a back disability, and the

examiner did not report findings pertaining to the hand,

wrist, or fingers. Thus the 1995 examination report was an

informal claim, but it did not include new and material

evidence. The requisite new and material evidence was not

added to the record until the physician's report of 1998 and

the VA examination reports of 1998 and 1999. Therefore,

effective date, under the provisions of 38 C.F.R. § 3.400, is

July 12, 1995, the earliest date on which a claim, either

formal or informal, was presented after the final Board

decision of March 1995. Accordingly, an effective date of

July 12, 1995, but no earlier, is warranted.

ORDER

Entitlement to an effective date of July 12, 1995, for the

grant of service connection for cubital tunnel syndrome of

the left wrist is granted.

____________________________________________

G. H. SHUFELT

Veterans Law Judge, Board of Veterans' Appeals