Citation Nr: 0418096 Decision Date: 07/07/04 Archive Date: 07/21/04 DOCKET NO. 95-15 902 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an effective date prior to August 8, 1989, for the award of service connection for systemic lupus erythematosus (lupus), to include whether clear and unmistakable error was committed in February 1993 and March 1994 rating decisions. 2. Entitlement to service connection for ulcers. 3. Entitlement to service connection for lumbar spine stenosis. 4. Entitlement to a separate disability rating for service- connected post-traumatic stress disorder (PTSD). 5. Entitlement to a separate disability rating for service- connected anti-phospholipid syndrome. REPRESENTATION Appellant represented by: National Veterans Legal Services Program, Inc. WITNESS AT HEARINGS ON APPEAL The veteran ATTORNEY FOR THE BOARD M. Siegel, Counsel INTRODUCTION The veteran served on active duty from May 1966 to December 1969. This case first came before the Board of Veterans' Appeals (Board) on appeal from rating decisions rendered by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In February 1993, the RO granted entitlement to service connection for lupus and assigned a 30 percent rating therefor, effective as of March 27, 1992. An RO hearing officer, in a February 1994 decision, increased the disability rating for lupus to 100 percent, and a March 1994 rating decision assigned an effective date of March 27, 1992, for that rating. The March 1994 rating decision also found no clear and unmistakable error in a December 1970 rating decision in which the Hartford, Connecticut, RO denied service connection for "fever." In an April 1997 rating decision, the Muskogee RO found that the February 1993 and March 1994 rating decisions were clearly and unmistakably erroneous by failing to assign an effective date of August 8, 1989, for service connection for lupus. In a November 1998 decision, the Board, in pertinent part, denied entitlement to an effective date earlier than August 8, 1989, for the award of service connection for lupus. In reaching that decision, the Board found that questions of clear and unmistakable error in February 1993 and March 1994 rating decisions were also resolved. The veteran appealed that determination to the United States Court of Veterans Appeals (now the United States Court of Appeals for Veterans Claims) (Court) which, by means of an Order issued in June 2003, in part vacated the Board's November 1998 decision, and remanded to the Board the veteran's claims of entitlement to en earlier effective date and of clear and unmistakable error. In its June 2003 Order, the Court noted that the Board, in its November 1998 decision, had remanded a claim of entitlement to an increased disability evaluation for dysthymic disorder, which was rated at that time as 50 percent disabling, and that this matter was therefore not subject to Court consideration. In November 1999, while this issue was on remand status, the RO increased the rating for this disorder to 70 percent. The veteran, in April 2000, withdrew further appeal of that decision and indicated that he did not seek a higher rating for that disorder, or an earlier effective date for the award of compensation therefor. That issue, accordingly, is no longer in appellate status, and need not be considered by the Board. In June 2002, the RO denied claims of entitlement to service connection for ulcers and for lumbar spine stenosis. The RO at that time also, in essence, awarded service connection for PTSD and anti-phospholipid syndrome; the evaluation of PTSD was combined with the rating assigned for dysthymic disorder, for which service connection had already been established, while the rating for anti-phospholipid syndrome was combined with the rating already assigned for service-connected lupus. The veteran thereafter indicated disagreement with those denials of service connection, and the combining of those various disabilities for rating purposes. As explained below, review of the veteran's claims file does not demonstrate that a Statement of the Case (SOC) was thereafter issued on these matters. Accordingly, the issues of entitlement to service connection for ulcers, entitlement to service connection for lumbar spine stenosis, entitlement to a separate disability rating for service-connected PTSD, and entitlement to a separate disability rating for service- connected anti-phospholipid syndrome, are addressed in the remand portion of the decision below and are remanded to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. The veteran's response in April 1971 to the Hartford RO's December 1970 denial of service connection for "fever" was a valid and timely Notice of Disagreement (NOD). The RO did not furnish the veteran with a Statement of the Case in response thereto. 2. Service connection was granted in February 1993 for lupus based in part on evidence of record in December 1970, to include service medical records; a date of August 8, 1989, was ultimately assigned as the date that service connection for this disorder became effective. 3. The veteran's claim of entitlement to service connection for a disability eventually characterized as lupus had been pending since his claim of entitlement to service connection for "fever" that was denied in December 1970; that claim was filed by the veteran in August 1970, within one year of his separation from service on December 18, 1969. CONCLUSION OF LAW Entitlement to an effective date of December 19, 1969, for the award of service connection for lupus is established. 38 C.F.R. § 3.400(b) (2003); 38 C.F.R. § 19.113 (1970). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran contends, essentially, that an effective date earlier than August 8, 1989, for the award of service connection for lupus should be assigned. After a review of the evidence, and for the reasons set forth below, the Board will grant the claim, and assign an effective date of December 19, 1969 for service connection for lupus. There is no question as to the essential facts in this matter. The veteran was discharged from active military service on December 18, 1969. In August 1970 he filed a claim of entitlement to service connection for "fever." In December 1970, the RO denied the veteran's claim, and by letter dated the following month, notified him of its decision and of his appellate rights and procedures. In April 1971, the veteran submitted a Statement in Support of Claim, in which he indicated that he sought transfer of his file to the jurisdiction of another RO, and in which he advised VA that he would "ask for a reconsideration of denial of service connected for (fever), which you indicate was not incurred in, or aggravated by service." The veteran cited a medical report from a named physician, which was forwarded to the RO, and which indicated the onset of his condition, and subsequent hospitalization, within seven months of my release from the veteran's active duty. The veteran argued that such evidence indicated that he had the disorder "under the one year presumption of good health." In separate and contemporaneous correspondence to the receiving RO, the veteran reiterated his contentions. Review of the veteran's claims file reveals that neither the forwarding or receiving ROs thereafter furnished the veteran with an SOC in response to these statements; rather, he was notified by letter by each RO that the evidence of record did not provide a basis for establishing service connection for fever through presumption. In August 1989, the veteran submitted a letter to VA in which he referenced having been diagnosed with autoimmunity or chemically induced acquired immuno-deficiency syndrome. In February 1993, the Muskogee RO granted service connection for lupus, effective as of March 27, 1992. In that rating decision, the RO noted that the veteran's service medical records referenced treatment for pleurisy, and that a private physician had linked the veteran's inservice symptoms to the post-service manifestation of lupus. The effective date of this grant was subsequently revised to August 8, 1989, the date of receipt by VA of the letter in which he first cited his diagnosis of acquired immuno-deficiency syndrome, on the basis that this was in fact a reference to his lupus. Given these facts of record, the Board must conclude that the veteran's claim of service connection for lupus has been in active appellate status since April 1971, thus placing the effective date for the grant of service-connected compensation at December 19, 1969 - the date the veteran was separated from active military service. The law provides that except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase, will be the date of receipt of the claim or the date entitlement arose, whichever is the latter. If a claim is received within one year after separation from service, the effective date will be the day following separation from active service; otherwise, the effective date is the date of receipt of the claim, or the date entitlement arose, whichever is latter. If the claim is based on a presumption of service connection, the effective date is the date that entitlement arose, if the claim is received within one year after separation from active duty; otherwise, the effective date is the date of receipt of the claim or the date that entitlement arose, whichever date is later. 38 C.F.R. § 3.400(b)(2). With regard to appellate procedures, an appeal consists of a timely filed Notice of Disagreement (NOD) and, after an SOC has been issued, a timely filed Substantive Appeal. 38 C.F.R. § 20.200. That is, following submission by the claimant of an NOD, the RO is to issue an SOC; see 38 C.F.R. § 19.26. Current regulations define an NOD as a written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result. While special wording is not required, an NOD must be in terms that can reasonably be construed as disagreement with that determination and a desire for appellate review. 38 C.F.R. § 20.201. Significantly as to the present matter, when the veteran first filed a claim for service connection following his separation from service in December 1969, the law required merely that the claimant submit a written communication expressing dissatisfaction or disagreement with an adjudicative determination, and it was to be in terms that could be reasonably construed as evidencing a desire for review of that determination. 38 C.F.R. § 19.113 (1970). Thus, the veteran's claim has been pending since he first filed a claim of entitlement to service connection for "fever" in August 1970. As discussed above, in April 1971 he submitted statements in which he requested that the RO's adverse December 1970 decision be reconsidered. These statements clearly constitute a written communication "expressing dissatisfaction or disagreement" with the RO's December 1970 denial of his claim, and can be reasonably construed as "evidencing a desire for review of that determination." 38 C.F.R. § 19.113 (1970). Because these statements constituted an NOD within the meaning of then- applicable law, it was incumbent upon the RO to have thereafter furnished the veteran with an SOC. No SOC was provided by the RO to the veteran. It is clear from a review of the medical evidence that the medical disability for which the veteran sought service connection in 1970 ("fever") is deemed to be a manifestation of the same medical disability (lupus) for which service connection was eventually granted, and which had been variously diagnosed beginning in service in 1968. In sum, the veteran filed a claim for service connection within one year after separating from service, that claim has been pending since he filed that claim, and that claim was ultimately granted. The effective date for the award of service connection for the disability that was the subject of that claim (lupus) accordingly is, under the regulations that govern the assignment of effective dates, no later than the date of that claim, since the claim was filed subsequent to the date of entitlement. (As noted above, the RO eventually determined that the disability had initially been manifested during service.) Since the veteran filed his claim within one year after his separation from service, the appropriate effective date is the first day following his last day of active service. The correct effective date for the award of service connection for lupus is therefore December 19, 1969. The Board notes that the veteran has also raised claims as to whether the February 1993 and March 1994 rating decisions contained clear and unmistakable error. The Board's decision herein renders such inquiry irrelevant, inasmuch as any favorable decision by the Board regarding such error is superseded by the Board's findings in this case. The Board has considered whether further development and notice under the Veterans Claims Assistance Act of 2000 or other law should be undertaken. However, given that the veteran cannot by law receive a date earlier than December 19, 1969, further consideration of the VCAA will not avail the veteran. ORDER An effective date of December 19, 1969, for the award of service connection for systemic lupus erythematosus (lupus) is granted, subject to the laws and regulations governing the disbursement of VA compensation. REMAND As noted above, the RO, in June 2002, denied claims of entitlement to service connection for ulcers and lumbar spine stenosis. The RO at that time also, in essence, awarded service connection for PTSD and anti-phospholipid syndrome; the evaluation of PTSD was combined with the rating assigned for dysthymic disorder, for which service connection had already been established, while the rating for anti- phospholipid syndrome was combined with that assigned for the already service-connected lupus. The veteran thereafter indicated disagreement with those denials of service connection, and the combining of those various disabilities for rating purposes. Review of the veteran's claims file, however, does not demonstrate that an SOC was thereafter issued on these matters. In such situations, according to the Court, the Board must remand the claims to the agency of original jurisdiction for the issuance of a SOC. Manlincon v. West, 12 Vet. App. 238 (1999). This case is therefore remanded to the Veterans Benefits Administration (VBA) for the following action: With specific regard to the veteran's claims of entitlement to service connection for ulcers, entitlement to service connection for lumbar spine stenosis, entitlement to a separate disability rating for service-connected PTSD, and entitlement to a separate disability rating for service-connected anti-phospholipid syndrome, VBA must issue an SOC pertaining to those four issues. The veteran should be provided with appropriate notice of his appellate rights and accorded the appropriate period of time within which to submit a substantive appeal. If a timely substantive appeal is received with regard to any or all of these issues, those issues should be forwarded to the Board for appellate consideration. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). ______________________________________________ Vito A. Clementi Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2