Citation Nr: 0108451	
Decision Date: 03/22/01    Archive Date: 03/29/01

DOCKET NO.  99-20 228	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, 
Tennessee


THE ISSUE

Entitlement to an effective date earlier than September 16, 
1993, for the award of VA disability compensation for 
residuals of multiple sclerosis.


REPRESENTATION

Appellant represented by:	William K. Randolph, Attorney


ATTORNEY FOR THE BOARD

D. Jeffers, Counsel


INTRODUCTION

The veteran served on active duty from July 1967 to March 
1971.

The Board of Veterans' Appeals (Board) denied entitlement to 
service connection for residuals of multiple sclerosis in 
April 1991.  The veteran subsequently filed an application to 
reopen on September 16, 1993.  The Board granted the 
veteran's application to reopen in a July 1997 decision.

This current matter comes to the Board on appeal an April 
1998 rating decision of the Nashville, Tennessee, Department 
of Veterans Affairs (VA), Regional Office (RO), which granted 
service connection and a 30 percent evaluation for multiple 
sclerosis, effective from September 16, 1993.

In August 1998, following additional evidentiary development, 
the RO granted service connection for several disabilities 
due to multiple sclerosis: weakness and sensory deficit of 
the right upper extremity (30%); weakness and sensory deficit 
of the left upper extremity (30%); weakness and sensory 
deficit of the right lower extremity (40%); weakness and 
sensory deficit of the left lower extremity (40%); optic 
neuritis of the right eye (30%); and neurogenic bladder (10%) 
for a combined evaluation of 100 percent.  The veteran was 
awarded special monthly compensation based on the need for 
aid and attendance.  The RO also determined that he was 
eligible for Dependent's Educational Assistance.  The 
effective date of all of the above-mentioned evaluations was 
determined to be September 16, 1993.

Parenthetically, it is noted that the veteran filed a claim 
for a total rating based on individual unemployability due to 
service-connected disabilities (TDIU), requesting an award of 
this benefit from September 16, 1993.  Insofar as the August 
1998 rating decision essentially granted entitlement to a 
combined 100 percent schedular evaluation for residuals of 
multiple sclerosis, effective from September 16, 1993, the 
TDIU issue has been rendered moot.  

The Board has restyled the issue on appeal to more accurately 
reflect the benefit being sought by the veteran.



FINDINGS OF FACT

1.  The Board denied entitlement to service connection for 
residuals of multiple sclerosis in April 1991.  The veteran 
did not initiate an appeal, and the decision became final.

2.  The veteran filed a formal application to reopen on 
September 16, 1993.

3.  The record does not show communication from the veteran 
between 1991 and September 1993 that might demonstrate an 
earlier date of receipt of a claim, and it was not factually 
ascertainable that multiple sclerosis was related to service 
prior to September 1993.


CONCLUSION OF LAW

An effective date earlier than September 16, 1993, for the 
award of VA disability compensation for residuals of multiple 
sclerosis is not warranted.  38 U.S.C.A. § 5110 (West Supp. 
2000); 38 C.F.R. § 3.400 (2000).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

There has been a significant change in the law during the 
pendency of this appeal with the enactment of the Veterans 
Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 
114 Stat. 2096 (2000).  This law eliminates the concept of a 
well-grounded claim, redefines the obligations of VA with 
respect to the duty to assist, and supersedes the decision of 
the United States Court of Appeals for Veterans Claims (CAVC) 
in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub 
nom. Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 
2000) (per curiam order) (holding that VA cannot assist in 
the development of a claim that is not well grounded).  The 
new law also includes an enhanced duty to notify a claimant 
as to the information and evidence necessary to substantiate 
a claim for VA benefits.  

The VCAA is applicable to all claims filed on or after the 
date of enactment, November 9, 2000, or filed before the date 
of enactment and not yet final as of that date.  Veterans 
Claims Assistance Act of 2000, Pub. L. No. 106-475, § 7, 
subpart (a), 114 Stat. 2096, 2099 (2000).  See also Karnas v. 
Derwinski, 1 Vet. App. 308 (1991).

In the circumstances of this case, however, a remand would 
serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. 
App. 540, 546 (1991) (strict adherence to requirements in the 
law does not dictate an unquestioning, blind adherence in the 
face of overwhelming evidence in support of the result in a 
particular case; such adherence would result in unnecessarily 
imposing additional burdens on VA with no benefit flowing to 
the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) 
(remands which would only result in unnecessarily imposing 
additional burdens on VA with no benefit flowing to the 
veteran are to be avoided).  The appellant was notified in 
the April 1991 Board decision that there was no evidence 
demonstrating that multiple sclerosis was shown in active 
service or was manifested to a degree of 10 percent following 
discharge.  Attached to said decision was a Board of Veterans 
Appeals Notice which essentially informed the veteran of his 
right to appeal the decision to the United States Court of 
Veterans Appeals (now the CAVC), as well as his right to 
reopen his claim by submitting new and material evidence.  In 
this case, the veteran did not appeal the Board decision and 
he did not file an application to reopen prior to September 
16, 1993.  Insofar as the date of his application to reopen 
is controlling in this case, further development and further 
expending of VA's resources is not warranted.

As noted above, the uncontroverted evidence of record 
establishes that the Board denied the veteran's 'original' 
claim for service connection for multiple sclerosis in an 
April 1991 decision.

On September 16, 1993, the veteran filed an application to 
reopen the service connection claim.  Although initially 
denied by the RO, the Board granted the veteran's application 
to reopen in a July 1997 decision based in significant part 
on the positive medical nexus opinion of C. Bash, M.D. a 
neuroradiologist associated with the service organization 
that had been representing him at that time.  However, the 
claim was remanded to the RO for consideration of Dr. Bash's 
opinion, as there was no indication that initial 
consideration of this issue by the RO was waived.

On remand, the veteran was accorded VA examination in March 
1998.  The VA examiner essentially agreed with Dr. Bash's 
conclusion that it is very likely that the veteran was 
suffering from the early effect of his multiple sclerosis in 
service.

In an April 1998 decision, the RO established service 
connection for multiple sclerosis and assigned a 30 percent 
disability rating effective from September 16, 1993 insofar 
as the veteran had continuously prosecuted his claim since 
that time.

As noted above, following additional evidentiary development, 
the RO granted service connection for several disabilities 
due to multiple sclerosis in an August 1998 rating decision.  
The combined evaluation of these disabilities is 100 percent 
and their effective date was again determined to be September 
6, 1993.  

After a contemporaneous review of the evidence of record, the 
Board finds that entitlement to an effective date earlier 
than September 16, 1993, for the award of VA disability 
compensation for residuals of multiple sclerosis is not 
warranted.

As a preliminary matter, it is noted that by operation of 38 
U.S.C.A. §§ 7103(a) and 7104(a), decisions of the Board are 
final.  A Board decision is only subject to revision on the 
grounds of clear and unmistakable error (CUE) and will be 
reversed or revised if evidence establishes such error.  38 
U.S.C.A. § 7111(a) (West Supp. 2000).  Motions for review of 
Board decisions on the grounds of CUE are adjudicated 
pursuant to recently published regulations.  38 C.F.R. §§ 
20.1400-1411 (2000).  In his September 1999 substantive 
appeal, the veteran's private attorney takes exception with 
the weight accorded to the June 1979 VA examination 
reflecting the presence of positive neurological signs. The 
Board notes, however, that a mere disagreement with how the 
RO evaluated the facts before it does not constitute an 
allegation that is adequate to raise a CUE claim.  See 
Luallen v. Brown, 8 Vet. App. 92(1995).

Except as otherwise provided, the effective date of an 
evaluation and award of compensation based on 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 U.S.C.A. § 5110(a), (i) (West Supp. 2000); 
38 C.F.R. §§ 3.400, (h)(2), (q), (r) (2000); see also Link v. 
West, 12 Vet. App. 39 (1998)(effective date of a reopened 
claim is fixed in accordance with the facts but is not 
earlier than the date of receipt of the claim).  "Date of 
receipt" means "the date on which a claim, information or 
evidence was received in [VA]".  38 C.F.R. § 3.1(r) (2000); 
see also 38 C.F.R. §§ 3.108, 3.153, 3.201 (2000); Wells v. 
Derwinski, 3 Vet. App. 307 (1992).

The applicable statutory and regulatory provisions require 
that VA look to all communications from the appellant which 
may be interpreted as applications or claims - formal and 
informal - for benefits.  In particular, VA is required to 
identify and act on informal claims for benefits.  38 
U.S.C.A. § 5110(b)(3) (West Supp. 20000); 38 C.F.R. §§ 
3.1(p), 3.155(a) (2000), see also Servello v. Derwinski, 3 
Vet. App. 196, 198-200 (1992).  VA is held to have 
constructive notice of documents generated by VA, even if the 
documents have not been made part of the record in a claim 
for benefits.  Bell, 2 Vet. App. at 613.

The record clearly documents receipt of a formal claim for 
reopening on September 16, 1993.  This date of receipt 
matches the definition of "date of receipt" provided at 38 
C.F.R. § 3.1(r) ("the date on which a claim, information or 
evidence was received in [VA]").

The Board recognizes that the date of a VA outpatient or 
hospital examination or the date of hospital admission to a 
VA or uniformed services hospital, or the date of the 
veteran's admission to a non-VA hospital, where the veteran 
was maintained at VA expense, will be accepted as the date of 
receipt of a claim under certain circumstances.  See 38 
C.F.R. § 3.157(b)(1) (2000).  However, the Board does not 
find pertinent records that could be construed as a claim or 
an informal application to reopen.

The important facts in this case are that the Board's April 
1991 denial of his claim for service connection for multiple 
sclerosis is final, and he did not file a claim to reopen 
until September 16, 1993.  Under the regulatory provisions, 
entitlement to an earlier effective date for the award of VA 
disability compensation for residuals of multiple sclerosis 
is not warranted.  Accordingly, the benefits sought on appeal 
are not established.  


ORDER

An effective date earlier than September 16, 1993, for the 
award of VA disability compensation for residuals of multiple 
sclerosis is denied.



		
	THOMAS J. DANNAHER
	Member, Board of Veterans' Appeals