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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

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Quarles V. Derwinski 1992



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"III. Conclusion

The Board's conclusion that the veteran is not entitled to an effective date prior to November 9, 1984, is a clearly erroneous finding of fact which must be set aside. 38 U.S.C. ù 7261(a)(4) (formerly ù 4061 ). In addition, the Board's unsubstantiated opinion regarding the level of the veteran's back pain must be set aside, pursuant to 38 U.S.C. ù 7261( a)(3)(A). An effective date of not later than October 25, 1984, must be assigned in accordance with the facts of record.

Because the Court has found that the Board's analysis of the veteran's symptoms arising prior to October 25, 1984, does not contain an adequate statement of reasons or bases and is deficient in its failure to consider or discuss the impact of the veteran's pain on the severity of his low back disability prior to 1984, the Court is presented with an inadequate record to review in connection with the question of the appropriate effective date for the increase. Consequently, the Board's decision is reversed, and the matter is remanded to the Board for prompt readjudication of the effective-date question, in accordance with this opinion, including a critical examination of all of the evidence of record and a full written justification. See Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). On remand, the appellant will be free to submit additional evidence and argument on the

question at issue, and the Board will "seek any other evidence it feels is necessary" to the timely resolution of this claim. Ibid. When all of this evidence has been assembled, the Board must assess whether the veteran is entitled to the benefit of the doubt with regard to an effective date in February 1984, or earlier, for his increased disability rating. See 38 U.S.C. ù 5107(B); Gilbert, 1 Vet.App. at 55.

Accordingly, the motion by the Secretary of Veterans Affairs for summary affirmance is denied. A final decision by the Board following the remand herein ordered will constitute a new decision which may be appealed to this Court only upon the filing of a new Notice of Appeal with the Court not later than 120 days after the date on which notice of the new BVA decision is mailed to the appellant."



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