Citation Nr: 0429212	
Decision Date: 10/25/04    Archive Date: 11/08/04

DOCKET NO.  95-04 999	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, 
Arizona


THE ISSUES

1.  Entitlement to an earlier effective date prior to April 
9, 2001 for a 100 percent rating for major depressive 
disorder and dysthymia.

2.  Entitlement to service connection for post-traumatic 
stress disorder (PTSD).

3.  Entitlement to a total disability rating based on 
individual unemployability due to service-connected 
disabilities (TDIU) prior to April 9, 2001.


WITNESSES AT HEARINGS ON APPEAL

Appellant and A. S.


ATTORNEY FOR THE BOARD

M. Vavrina, Counsel


INTRODUCTION

The veteran served on active duty from October 1970 to 
October 1976.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from rating decisions issued by the 
Phoenix, Arizona, Regional Office (RO) of the Department of 
Veterans Affairs (VA).  

In September 1994, the RO, in pertinent part, denied 
entitlement to service connection for PTSD, depression, 
dysthymia, and an Achilles tendon injury.  Subsequently, the 
veteran perfected an appeal as to these issues.

Following an April 1996 RO hearing on appeal, the veteran 
withdrew his appeal as to the issue of entitlement to service 
connection for PTSD in written correspondence dated April 29, 
1996.

A February 1997 hearing officer's decision granted 
entitlement to service connection for tendonitis of the left 
ankle (claimed as an Achilles tendon injury) and denied 
entitlement to service connection for depression and 
dysthymia.  

In a September 1997 supplemental statement of the case (SSOC) 
the RO noted the veteran had retracted his withdrawal of the 
appeal as to the issue of entitlement to service connection 
for PTSD.  

In an April 1999 rating decision, the RO granted entitlement 
to service connection for major depressive disorder and 
dysthymia as secondary to the veteran's service-connected 
left ankle disability and assigned a 30 percent disability 
rating, effective from May 3, 1994.  That rating decision 
also continued the denial of entitlement to service 
connection for PTSD.  

In May 2001, the Board affirmed an initial 30 percent rating 
for major depressive disorder and dysthymia and remanded the 
veteran's service-connection claim for PTSD to the RO for 
further development.  The Board also noted that statements 
provided at the veteran's November 1999 personal hearing 
might be construed as a claim for entitlement to a TDIU and 
referred this matter to the RO for appropriate action.  
Although the veteran requested a personal hearing before a 
Veterans Law Judge in a January 1995 VA Form 9, in a VA Form 
21-4138, Statement in Support of Claim, received following 
the November 1999 hearing, the veteran stated that the latter 
hearing satisfied his request for a personal hearing.  Thus, 
the Board construes this statement as a withdrawal of his 
former request for a Board hearing.  38 C.F.R. § 20.704 
(2003).

In a July 2002 rating decision, the RO, in pertinent part, 
assigned a 100 percent rating for major depressive disorder 
and dysthymia, effective from April 9, 2001 and dismissed the 
veteran's TDIU claim as moot.  

In a Brief in Support of Notice of Disagreement Dated July 
22, 2002 received in December 2002, the veteran's then 
attorney raised a claim for entitlement to a TDIU as of the 
date the veteran filed his original claim for service 
connection for depression, dysthymia and PTSD.  In a March 
2003 statement of the case (SOC), the RO denied entitlement 
to a TDIU and to an effective date prior to April 9, 2001 for 
a 100 percent rating for major depressive disorder and 
dysthymia and for a TDIU.  

In October 2003, the RO informed the veteran that VA has 
revoked the authority of Mr. R. Edward Bates to represent VA 
claimants effective July 28, 2003.  The veteran was informed 
that therefore Mr. Bates, who had represented the veteran, 
could no longer represent him.  The veteran was also informed 
of what choices he had, as well as what he needed to do.  No 
response was received from the veteran, thus, the Board 
assumes that the veteran wants to represent himself and will 
continue with appellate review.

The issues 2 and 3 listed above 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.  VA 
will notify the veteran if further action is required.


FINDINGS OF FACT

1.  The VA has fulfilled, to the extent possible, its notice 
and duty to assist to the appellant by obtaining and fully 
developing all relevant evidence necessary for the equitable 
disposition of the earlier effective date issue addressed in 
this decision.

2.  On May 3, 1994, the RO received the veteran's claim 
original claim for service connection for depression, 
dysthymia and PTSD.

3.  In an April 1999 rating decision, the RO reconsidered a 
September 1994 denial and granted entitlement to service 
connection for major depressive disorder and dysthymia as 
secondary to the veteran's service-connected left ankle 
disability and assigned a 30 percent disability rating, 
effective from May 3, 1994. 

4.  In June 1999, the veteran filed a NOD with the initial 30 
percent rating for major depressive disorder and dysthymia 
assigned by the RO in an April 1999 rating decision, 
indicating that it should be higher.

5.  At a November 1999 RO hearing, the veteran claimed that 
his service-connected major depressive disorder and dysthymia 
rendered him unemployable.

6.  In a September 12, 2001 VA psychiatric examination 
report, the examiner opined that the veteran was unable to be 
gainfully employed or socially involved due to the chronicity 
of his depressive state and assigned a Global Assessment of 
Functioning (GAF) score of 45 over the past year.

7.  In a July 2002 rating decision, the RO assigned a 100 
percent rating for major depressive disorder and dysthymia 
effective from April 9, 2001, the date of the veteran's 
formal claim for a TDIU. 




CONCLUSION OF LAW

Resolving all doubt in the veteran's favor, the criteria for 
an effective date for the assignment of September 12, 2000, 
and no earlier, for a 100 percent rating for major depressive 
disorder and dysthymia have been met.  38 U.S.C.A. §§ 5107, 
5110 (West 2002); 38 C.F.R. § 3.400 (2003).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

On November 9, 2000, the Veterans Claims Assistance Act 
(VCAA) was enacted and became effective.  38 U.S.C.A. §§ 
5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002).  The 
VCAA essentially eliminated the requirement that a claimant 
submit evidence of a well-grounded claim and provides that VA 
will notify the claimant and the claimant's representative, 
if any, of information required to substantiate a claim and 
will assist the claimant in obtaining evidence necessary to 
substantiate a claim.  VA also revised the provisions of 38 
C.F.R. § 3.159 in view of the VCAA statutory changes.  See 66 
Fed. Reg. 45,620-32 (Aug. 29, 2001).  The amendments were 
effective November 9, 2000, except for the amendment to 38 
C.F.R. § 3.156(a), which was effective August 29, 2001.  

Initially, the Board notes that the VA General Counsel has 
held that the notice provisions of the VCAA are not 
applicable to earlier effective date claims.  See VAOPGCPREC 
8-2003 (holding that "[i]f, in response to notice of its 
decision on a claim for which VA has already given the 
section 5103(a) notice, VA receives a notice of disagreement 
that raises a new issue, section 7105(d) requires VA to take 
proper action and issue a statement of the case if the 
disagreement is not resolved, but section 5103(a) does not 
require VA to provide notice of the information and evidence 
necessary to substantiate the newly raised issue"); see also 
Livesay v. Principi, 15 Vet. App. 165 (2001).  However, in 
this case  the finding in Huston v. Principi, 17 Vet. 
App. 195, 202 (2003), applies as the section 5103(a) notice 
was not received by the veteran prior to grant of service 
connection for major depressive disorder and dysthymia and 
assignment of an initial disability rating.

In this case, there is no possibility that any evidence could 
be obtained that would be relevant to the legal question 
involved.  In other words, there is no evidence that could be 
obtained that would have any effect on the outcome of this 
claim.

There is, by law, no additional relevant evidence to be 
obtained with a claim for an earlier effective date involving 
the assignment of an increased rating as the effective date 
can be no earlier than the date of entitlement.  As discussed 
more fully below, the effective date of an evaluation "will 
be the date of receipt of the claim or the date entitlement 
arose, whichever is the later."  38 C.F.R. § 3.400 (2003).  
Therefore, it is legally impossible to get an effective date 
any earlier than the date of entitlement to the higher 
rating, when a claim was filed prior to that date.

The Board is satisfied that all relevant facts have been 
properly developed, to the extent possible, and no further 
assistance to the appellant is required to comply with the 
duty to assist mandated by 38 U.S.C.A. § 5103A (West 2002) 
regarding the issue addressed in this decision.  The veteran 
was afforded the opportunity to provide lay or medical 
evidence, which might support his claim.  VA treatment 
records from January 1993 to June 2001 and Social Security 
Administration (SSA) records from February 1992 to April 1994 
have been associated with the claims file.  These records, 
along with service medical records for the veteran and VA 
examination reports dated in July 1994, September 1998, May 
2000, September 2001, and February 2004 and Vet Center 
records have been associated with the claims file.  The Board 
notes that for a short period of time the veteran was 
participating in VA vocational rehabilitation training under 
Chapter 31 of Title 38 of the United States Code; however, a 
search for a separate Chapter 31 folder was unsuccessful.  
The Board observes that, where records are unavailable, "VA 
has no duty to seek to obtain that which does not exist."  
Counts v. Brown, 6 Vet. App. 473, 477 (1994); Porter v. 
Brown, 5 Vet. App. 233, 237 (1993).  In a May 8, 2003 letter, 
a March 2003 SOC, and a January 2003 SSOC, the RO informed 
the veteran of what was needed to establish entitlement to a 
higher rating and to an earlier effective date for a 100 
percent rating and he was given additional chances to supply 
any pertinent information.  Copies of April 1996 and November 
1999 RO hearing transcripts are associated with the record.  
Lay statements from the veteran and his former attorney also 
have been associated with the file.  Thus, the Board finds 
that VA has obtained, or made reasonable efforts to obtain, 
all evidence, which might be relevant to the earlier 
effective date claim discussed in this decision.  
Accordingly, the Board finds that no further assistance to 
the veteran in acquiring evidence is required by statute.  
38 U.S.C.A. § 5103A.  Under these circumstances, the Board 
finds that the service medical records, VA treatment records, 
SSA medical records, a rating action, hearing transcripts, 
and lay statements and testimony, are adequate for 
determining whether the criteria for an earlier effective 
date for a 100 percent rating have been met.  

The VCAA requires that VA must provide notice that informs 
the claimant (1) of any information and evidence not of 
record that is necessary to substantiate the claim, (2) of 
the information and evidence that VA will seek to provide, 
and (3) of the information and evidence that the claimant is 
expected to provide.  Furthermore, VA must "also request 
that the claimant provide any evidence in the claimant's 
possession that pertains to the claim."  38 U.S.C.A. 
§ 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2003).  

In this case, the initial agency of original jurisdiction 
(AOJ) decision was made after November 9, 2000, the date the 
VCAA was enacted.  However, the Board finds that any defect 
with respect to the VCAA notice requirement in this case was 
harmless error for the reasons specified below.  See 
VAOPGCPREC 7-2004.

In the present case, regarding the issue of entitlement to an 
earlier effective date for a 100 percent rating, a 
substantially complete application for a TDIU was received in 
April 2001.  Thereafter, in a July 2002 rating decision, the 
RO assigned a 100 percent rating for the veteran's service-
connected psychiatric disorders and denied the appellant's 
claim for a TDIU as moot.  Only after this rating action was 
promulgated, in a March 2003 SOC and a May 2003 letter, did 
the RO provide initial notice of the provisions of the VCAA.  
In a March 2003 SOC and in a January 2004 SSOC and their 
cover letters, the RO provided additional notice to the 
appellant regarding what information and evidence must be 
submitted by the claimant and the need for the claimant to 
submit any evidence in his possession that pertains to his 
claim.  In various letters, an SOC, and an SSOC, VA also 
informed the appellant of what information and evidence is 
needed to substantiate his claim and what information he 
needed to submit and what VA would do.  In particular, in a 
May 2003 letter, the RO gave the veteran an opportunity to 
tell VA about any evidence the RO might not have considered, 
informed him of what information VA had received and was 
responsible for obtaining, what information was needed to 
establish an earlier effective date for his service-connected 
psychiatric disorders and to show that he met the schedular 
criteria for a TDIU, and what the veteran needed to do to 
help VA and asked him to specify the date he was unemployable 
due to his service-connected disabilities.  The May 2003 
letter also provided the veteran with a VA Form 21-4138, if 
he wished to state that he had no further information or 
evidence to provide.  In a February 2004 VA Form 21-4138, the 
veteran requested that his case for an "early eff date for 
S/C depressive disorder & dysthymia" be forwarded to the 
Board.

There is no basis for concluding that harmful error occurs 
simply because a claimant receives VCAA notice after an 
initial adverse adjudication.  See 38 U.S.C. § 7261(b)(2) 
(West 2002); see also Conway v. Principi, 353 F.3d 1369 (Fed. 
Cir. 2004) (There is no implicit exemption for the notice 
requirements contained in 38 U.S.C.A. § 5103(a) from the 
general statutory command set forth in section 7261(b)(2) 
that the Veterans Claims Court shall "take due account of 
the rule of prejudicial error.")  

In reviewing the AOJ determination on appeal, the Board is 
required to review the evidence of record on a de novo basis 
and without providing any deference to the AOJ's decision.  
As provided by 38 U.S.C.A. § 7104(a), all questions in a 
matter which under 38 U.S.C.A. § 511(a) are subject to 
decision by the Secretary shall be subject to one review on 
appeal to the Secretary, and such final decisions are made by 
the Board.  Because the Board makes the final decision on 
behalf of the Secretary with respect to claims for veterans 
benefits, it is entirely appropriate for the Board to 
consider whether the failure to provide a pre-AOJ initial 
adjudication notice constitutes harmless error, especially 
since an AOJ determination that is "affirmed" by the Board 
is subsumed by the appellate decision and becomes the single 
and sole decision of the Secretary in the matter under 
consideration.  See 38 C.F.R. § 20.1104 (2003).  There simply 
is no "adverse determination" for the appellant to 
overcome.  Similarly, a claimant is not compelled under 
38 U.S.C.A. § 5108 to proffer new and material evidence 
simply because an AOJ decision is appealed to the Board.  
Rather, it is only after a decision of either the AOJ or the 
Board becomes final that a claimant has to surmount the 
reopening hurdle.  

Here, the Board finds that any defect with respect to the 
timing of the VCAA notice requirement was harmless error.  In 
a May 2003 letter to the veteran, a March 2003 SOC and a 
January 2004 SSOC, the RO informed him of what information he 
needed to establish entitlement to a 100 percent rating and 
an earlier effective date, that he should send in information 
describing additional evidence or the evidence itself.  While 
the notice the AOJ provided to the appellant in March and May 
2003 and later was not given prior to the initial AOJ 
adjudication of the claim, the notice was provided by the RO 
prior to the transfer and certification of the appellant's 
case to the Board following the Board's May 2001 decision, 
and the content of that notice and various duty to assist 
letters, along with the SOC and SSOC, fully complied with the 
requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. 
§ 3.159(b).  In February 2004, after VCAA content-complying 
notice was given, the case was readjudicated and an SSOC was 
provided to the veteran.  The claimant has been provided with 
every opportunity to submit evidence and argument in support 
of his claim and to respond to VA notices.  Therefore, to 
decide the appeal on the veteran's claim would not be 
prejudicial error to the claimant.  See VAOPGCPREC 7-2004.

In this case, although the May 2003 VCAA notice letter that 
was provided to the appellant does not contain the "fourth 
element" per se, the Board finds that the appellant was 
otherwise fully notified of the need to give to VA any 
evidence pertaining to his claim.  By the May 2003 letters, 
an SOC, an SSOC and their accompanying notice letters, VA 
satisfied the fourth element of the notice requirements.

All the VCAA requires is that the duty to notify is 
satisfied, and that claimants are given the opportunity to 
submit information and evidence in support of their claims.  
Once this has been accomplished, all due process concerns 
have been satisfied.  See Bernard v. Brown, 4 Vet. App. 384 
(1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 
38 C.F.R. § 20.1102 (harmless error).  In this case, because 
each of the four content requirements of a VCAA notice has 
been fully satisfied, any error in not providing a single 
notice to the appellant covering all content requirements is 
harmless error.  See VAOPGCPREC 7-2004.  Moreover, the 
veteran and his former attorney have provided arguments in 
support of his appeal, thus curing (or rendering harmless) 
any previous omissions.  Finally, in light of the Board's 
decision granting an earlier effective date of September 12, 
2000, the veteran's procedural rights have not been abridged, 
and the Board will proceed with appellate review of his 
earlier effective date claim.  See Bernard, 4 Vet. App. at 
393-94; VAOPGCPREC 16-92 (57 Fed. Reg. 49,747 (1992)).

Background

Service medical records dated in December 1971 show the 
veteran's mental status was basically within normal limits 
except some seeming detachment concerning difficulty with a 
left leg injury.  The examiner noted there was no evidence of 
psychosis or homicidal or suicidal tendencies.  The diagnoses 
included conversion reaction.  The veteran's July 1976 
separation examination revealed a normal clinical psychiatric 
evaluation.

VA medical records dated in January 1985 show the veteran 
requested treatment for chronic alcoholism and 
anxiety/depression.  It was noted the veteran had a history 
of a grand mal seizure in January 1978 when he was admitted 
after a suicide attempt.  The diagnoses included chronic 
alcoholism and chronic anxiety/
depression.  

Vet Center records dated from June 1988 to July 1993 include 
a diagnosis of alcohol dependency.  The records show the 
veteran reported feelings of depression and anxiety related 
to problems with his girlfriend and their children.  A 
September 1992 evaluation reflects that the veteran displayed 
depression, anger, and guilt, but had no significant 
vegetative signs of depression.  He appeared to have passive-
aggressive traits.

In July and August 1988, the veteran was treated for alcohol 
dependency and from May to September 1992 he was treated for 
alcohol dependency, depressive disorder, tobacco and 
substance abuse at the VA Domiciliary.

VA medical records dated in November 1992 show the veteran 
reported a history of dysthymic symptoms and alcohol and 
cocaine abuse.  He stated he was unemployed and had been 
discharged from a vocational rehabilitation program because 
he was not doing very well in it.  He reported that he lived 
with his girlfriend and stayed home all day caring for her 
children. 

SSA records show the veteran was awarded entitlement to 
disability benefits due to severe depression, personality 
disorder, and history of alcohol and polysubstance abuse.  A 
March 1994 administrative decision found the veteran had not 
engaged in substantial gainful activity since November 15, 
1990.  It was noted that an April 1993 psychiatric 
examination had revealed diagnoses of alcohol dependence, 
dysthymia, malingering, and personality disorder, and that 
the veteran had good functional capacity with the exception 
of a serious limitation in the area of tolerance to work 
stresses.

On May 3, 1994, the veteran submitted an application for 
entitlement to service connection for PTSD, depression, 
dysthymia, and personality disorder.  He reported that he 
last worked in November 1990.

Private medical correspondence dated in May 1994 reveals that 
the veteran had been treated for potential readjustment 
difficulties with depressive and anxious features.  

VA medical records dated in July 1994 show that the veteran 
reported he had been arrested again and charged with 
assaulting his girlfriend in front of the children.  The 
examiner noted the veteran was depressed but not suicidal.

At a July 1994 VA PTSD examination, the veteran reported he 
had been depressed since 1971 and that the disorder was 
manifested by disturbance of sleep, appetite, and 
concentration.  He stated he had difficulty trusting others 
and that he had no friends.  The veteran indicated that he 
last worked in 1989.  He reported he had survival guilt, was 
hypervigilant, and had suicidal thoughts.  The veteran stated 
he did not experience nightmares but that he occasionally 
experienced flashbacks.  He reported problems with alcohol, 
drugs, and spousal abuse.  He added that he was receiving 
treatment for depression at a mental health clinic and was 
taking Zoloft and anti-anxiety medication.  The examiner 
noted the veteran was marginally groomed and that the veteran 
stated he was depressed most of the time.  His affect was 
appropriate but blunted.  There was no evidence of homicidal 
or suicidal ideation or psychosis.  His cognitive functions 
were grossly intact.  The diagnoses included chronic severe 
PTSD and substance abuse disorders.  The examiner assigned a 
GAF score of 35.

A May 1995 VA hospital discharge summary noted the veteran 
had completed a treatment program for drug and alcohol abuse.  
It was indicated he had experienced suicidal thoughts prior 
to treatment and was on probation from a domestic violence 
charge.  The diagnoses included alcohol dependence, substance 
abuse, and depression.

A September 1995 VA hospital summary report shows that the 
veteran completed his second treatment for drug and alcohol 
abuse at the Prescott Substance Abuse Treatment Program 
(SATP).  On admission to the Domiciliary Aftercare Program, 
it was noted that the veteran had recent suicidal thoughts 
before beginning his treatment in SATP.  The veteran was 
followed by Psychiatry for his depression.  The veteran was 
in group therapy but the group participants voted to expel 
him because he was still in denial about his alcoholism.

A January 1996 private psychological evaluation included an 
Axis I diagnosis of alcohol dependence without physiological 
dependence in early full remission.  A GAF score of 52 was 
provided and described symptoms as moderate.  

At an April 1996 RO hearing, the veteran, in essence, stated 
his belief that his depression had been manifest during 
active service and was related to his left leg injury.  He 
testified that he had been admitted to the Albuquerque VA 
Medical Center (VAMC) after a suicide attempt in 1977, but 
that he received no other psychiatric treatment prior to 
1994.  

In an April 1996 statement, the veteran stated that during 
service he was antisocial, a loner, passive-aggressive, and 
violent, symptoms he claimed were the manifestations of 
mental illness.  He stated that after service he drank 
excessively and was arrested for driving under the influence 
three times in one month in California.  The veteran reported 
that he had attempted suicide in 1977 and that he had been 
homeless and unable to maintain employment.  He stated that 
he had lost contact with his family for over 10 years and had 
been in jail and prison.  The veteran reported that he had 
been sober for approximately one year but still experienced 
depression and anxiety.  He stated that medication helped 
with anxiety and sleeping problems but that he still 
experienced headaches, irritability, and had difficulty with 
relationships.

In an April 1996 affidavit, three members of the veteran's 
family reported that the veteran had returned from Vietnam 
with his left leg in a cast and displayed sadness that 
remained after the cast was removed.  They stated he had not 
been active and had few friends.  They recalled the veteran 
had been admitted to the Albuquerque VAMC after a suicide 
attempt.  They stated that, although the veteran displayed a 
lot of discomfort, he was attending Alcoholics Anonymous (AA) 
meetings and his outlook had improved after he was awarded 
custody of his 7 year old son.  

In December 1996, the RO received a report from the 
Albuquerque VAMC indicating a search for medical records for 
the period from 1977 to 1978 had been unsuccessful.  It was 
noted the search included a search of the federal archives. 

In a September 1997 statement, the veteran's sister, R.J., 
recalled having received a telephone call from the veteran in 
1978 while he was hospitalized at a VAMC after a suicide 
attempt.  

VA medical records dated in May 1998 show the veteran was 
attending school and doing well.  He stated his sleep, 
appetite, and concentration were good.  The examiner noted 
the veteran was alert with normal speech.  His thoughts were 
goal-directed but his mood was impatient and his affect was 
slightly blunted.  There was no evidence of hallucinations or 
suicidal ideation.  The diagnosis was recurrent depression, 
improved/stable overall.

A July 1998 VA psychiatric clinic report noted that the 
veteran requested medication to help him sleep and reported 
minimal anxiety symptoms.  The examiner noted he was dressed 
casually but looked tired.  His speech was spontaneous, 
coherent, and relevant.  The veteran's mood was variable and 
his affect was full range.  There was no evidence of 
psychosis or suicidal or homicidal ideation.  Insight and 
judgment were not impaired.  The diagnoses included recurrent 
major depression, in partial remission, and anxiety disorder.  
A GAF score of 65 was assigned.

At a September 1998 VA psychiatric examination, the veteran 
reported that since active service he had experienced 
depressed mood, helplessness, hopelessness, suicidal thoughts 
with two prior attempts, difficulty concentrating, little 
interest, low energy or motivation, sleep difficulty, social 
avoidance, and low self-esteem.  The veteran had noticed an 
improvement in feelings of hopelessness, suicidal thoughts, 
interest, energy and motivation, sleep, and social avoidance 
since he began taking psychotropic medication in 1992.  The 
examiner noted the veteran was well groomed without evidence 
of tics or unusual mannerisms.  His speech fluency, 
articulation, tone, and rate appeared within normal limits.  
The veteran described his mood as OK.  His affect was 
constricted and he appeared to be depressed.  He was oriented 
to person, place, time, and situation.  Intelligence was 
estimated to be average.  His thought processes were logical, 
goal-directed, and coherent.  There was no evidence of 
psychosis or homicidal or suicidal ideation.  Judgment was 
intact and insight into his current life situation was 
apparent.  The veteran was able to complete cognitive 
processing tasks with few errors, his remote memory was 
largely intact, and short-term memory was intact.  Diagnoses 
included recurrent major depressive disorder, current episode 
moderate, dysthymia, and alcohol dependence, in full 
remission.  The examiner noted that the major depressive and 
dysthymia disorders appeared to be related to the veteran's 
Achilles tendon injury.  The examiner added that the veteran 
had a social and vocational impairment consistent with the 
diagnoses but that the veteran was presently attending school 
part-time with a 3.5 grade point average and was raising his 
9 year old son, who had been diagnosed with ADHD and fetal 
alcohol syndrome.  A GAF score of 55 was assigned for the 
current and past year.

VA medical records dated in February 1999 show that a mental 
status examination revealed the veteran was alert and 
oriented times three, but that he easily became defensive and 
mildly irritable.  He complained of sad mood and irregular 
sleep.  There was no evidence of suicidal or homicidal 
ideation, hallucinations, or psychomotor upset.  His memory 
was intact; intelligence was estimated in the average range.  
The diagnoses included dysthymic disorder, substance 
use/abuse disorder, and passive-dependent-aggressive traits.
 
In an April 1999 rating decision, the RO granted entitlement 
to service connection for major depressive disorder and 
dysthymia as secondary to the veteran's service-connected 
left ankle disability and assigned an initial 30 percent 
disability rating, effective from May 3, 1994.

In a June 1999 NOD, the veteran requested entitlement to a 
higher disability rating.  In an August 1999 substantive 
appeal, the veteran stated that a higher rating was 
warranted, in essence, because of employment and relationship 
problems.

An August 1999 VA record reflects that the veteran had failed 
a class at school and was pessimistic.  He attended AA three 
to four times per week, was going to services at the 
Salvation Army, and was lonely.  

At a November 1999 RO hearing, the veteran testified that his 
service-connected psychiatric disability prevented his 
obtaining or sustaining gainful employment.  The veteran 
reported he received irregular treatment for his psychiatric 
disorders, primarily to have his medications refilled.  He 
stated that on a typical day he would send his son to school 
and spend the rest of the day shopping and napping.  The 
veteran stated that A.S. was his only close friend and that 
he had difficulty establishing relationships.  He reported he 
lived alone with his son.  A.S. testified that the veteran 
was paranoid and would only eat in restaurants where he could 
watch the cooks.  A.S. also stated that the veteran 
experienced occasional episodes of depression when he would 
not answer the door.  

A January 2000 VA treatment record reflects that the veteran 
had tried Zoloft before Prozac with little effect.  The 
veteran reported no side effects with taking Prozac and no 
suicidal or homicidal ideation.  On examination, he was 
oriented times three and he was neither psychotic nor using 
alcohol or drugs.  The veteran reported that his history of 
alcohol abuse was prior to starting Prozac in 1994 and he 
felt his drinking was related to his depression.  He was 
assigned a GAF score of 65.  A February 2000 VA treatment 
record  shows the veteran with stable depression and past 
alcohol abuse.  In March 2000, the veteran's dosage of Prozac 
was increased to 80 milligrams.  At a May 2000 appointment, 
the veteran denied side effects, suicidal or homicidal 
ideation, and drug or alcohol abuse.  He was oriented times 
three and was not psychotic.  The veteran was pleasant and 
calm but still had some residual depressive symptoms in spite 
of an increased Prozac dose.  He felt anergic and 
amotivational.  His Wellbutrin was increased and his Prozac 
was decreased. 

At a May 2000 VA psychiatric examination, the veteran 
reported his chief complaints were lack of motivation, loss 
of interest, irritability, and excessive sleep.  He stated he 
had never been married and that he lived with his 10 year old 
son.  The veteran reported he had one close friend and that 
reading was his only hobby.  He stated that he had not worked 
since 1989 but was currently attending school part-time to 
receive a certificate as a medical administrative assistant.  
The veteran reported feelings of hopelessness and suicidal 
thoughts but denied current plan or intent.  He stated he was 
depressed most of the time.  The veteran reported excessive 
sleep, fluctuation in appetite, irritability, and impaired 
concentration and memory.  On examination, the veteran was 
well groomed and wore casual attire.  There was no evidence 
of unusual tics or mannerisms.  The veteran was able to 
articulate his thoughts with rate and volume of speech within 
normal limits.  His mood appeared depressed with constricted 
affect.  He was oriented to person, place, approximate date, 
and situation.  Intelligence was estimated in the average to 
above average range.  His thought processes were goal-
directed, logical, and coherent.  There was no evidence of 
suicidal or homicidal ideation, paranoia, or psychosis.  
Judgment was intact and insight was largely apparent.  The 
veteran was able to perform cognitive processing tasks 
without error and his remote and short-term recall were 
intact.  Diagnoses included recurrent major depressive 
disorder, current episode moderate, dysthymia, and alcohol 
dependence.  The examiner noted the veteran had a social and 
vocational impairment consistent with the diagnoses but that 
the veteran was presently attending school and was raising 
his 10 year old son, who had been diagnosed with ADHD and 
fetal alcohol syndrome.  The examiner's impression was that 
the veteran's functioning was in the low moderate range but 
was not a severe impairment.  A GAF score of 53 was assigned 
for both the current and past year.

In August 2000, the veteran submitted a copy of a report of 
SSA earnings from 1969 to 1999, showing that he had some 
earnings from 1969 to 1989, with only $60 in 1990 and none 
after 1990.  

At a March 2001 VA visit, the veteran reported some stability 
but still felt somewhat sluggish in the morning with some 
residual sexual dysfunction.  He was taking courses in 
medical administration.  On examination, the veteran was 
oriented times three and appropriately dressed.  Speech was 
fluent, goal-directed, cohesive, and logical.  There was no 
evidence of a disorder in thought process or content.  His 
mood was subdued and somewhat depressed.  His affect was 
stable and appropriate but somewhat constricted.  There was 
no evidence of suicidal ideation or plan.  Memory and 
cognition were intact.  Judgment and insight were adequate.  
The assessment was major depressive disorder with a GAF score 
of 65.  At a May 2001 appointment, the veteran reported that, 
since an increase in Wellbutrin, he felt less sluggish, he 
felt like doing more things, and he felt like his 
concentration had improved somewhat as well.  He added that 
suicidal ideation had diminished greatly and he was enjoying 
reading more as well.  The veteran still felt somewhat 
isolated and a loner but stated that he would be going to 
church.  He was drinking one beer a day and was cautioned not 
to go above that.  On examination, he was alert and oriented 
times three and cooperative.  Speech was concise, clear, 
linear and goal-directed.  There was no evidence of 
psychomotor retardation or agitation or of disorder of 
thought process or content.  The veteran denied perceptual 
impairments.  Mood was described as euthymic.  Affect was 
still somewhat constricted but he did spontaneously offer 
more; affect was appropriate.  He denied current suicidal or 
homicidal ideation or plan.  Insight and judgment were 
adequate.  The assessment was major depressive disorder, 
recurrent.

On April 9, 2001, the RO received a formal application from 
the veteran for increased compensation based on 
unemployability. 

In May 2001, the Board affirmed an initial 30 percent rating 
for major depressive disorder and dysthymia and also noted 
that statements provided at the veteran's November 1999 
personal hearing might be construed as a claim for 
entitlement to a TDIU and referred this matter to the RO for 
appropriate action.

Responses received in July 2001 from former employers did not 
elicit any history of the veteran working for them within the 
past five years.

At an August 2001 VA general medical examination, the veteran 
was described as somewhat lethargic and somewhat difficult to 
interview.  He seemed distant and withdrawn.  The veteran 
reported that he had never had a regular job because of this 
alcohol abuse.  He was taking Wellbutrin and Prozac for major 
depressive illness.  On examination, the veteran seemed 
oriented and his memory seemed adequate, but he seemed 
lethargic, withdrawn and possibly low affect.  Diagnoses 
included major depression, alcohol, cocaine and marijuana 
abuse.

A September 12, 2001 VA social work evaluation reflects that 
the veteran had a noticeable body odor, which he attributed 
to not wanting to shower on a regular basis.  His hair was 
unkempt and his clothes did not appear clean.  He reported 
that he had worked as a mail clerk, miner, boiler room 
operator, and in construction after his discharge from 
service.  His jobs were of short duration, the longest 11 
months.  The veteran related that his jobs ended due to his 
problems with alcoholism, anger management, or lack of 
confidence due to altered self-image.  He last worked in 
1989.  The veteran believed his life began to fall apart in 
the military when his ankle was not taken care of properly 
and his self-image was altered.  He stated that he had 
difficulty being around other people ever since he was in 
service.  The veteran added that his anger had caused 
problems in the past.  At that time, his only activities were 
one course at the local college and raising his son.  The 
social worker added that the veteran remained isolated from 
others due to his continued difficulty establishing 
relationships, his anxiety when he is around others, and his 
long-term difficulties dealing with angry feelings.  He saw 
his feelings in a very negativistic way.  Most notable was 
the veteran's unusually poor problem-solving skills.  When he 
was presented with situations during this interview about how 
he might go about solving problems in his life, he had no 
idea where to begin.  His overall community adjustment was 
poor.  His social skills were poor.  He lacked good judgment 
and had limited insight into his affect on others.  The 
examiner concluded that the veteran's life had been 
compromised by his chronic depression.  He was not positive 
about any aspect of his life, and had not been for many 
years.  The veteran focused on the fact that he was not 
getting any younger and therefore he could only expect that 
things would get worse.  He had returned to drinking one beer 
per day.  Given the veteran's current state, he was not seen 
as employable.

At a September 12, 2001 VA psychiatric examination, the 
veteran reported that he had completed his GED and had taken 
some college-level classes.  He stated that he had no close 
friends, although he has a friendly acquaintance in a 
neighbor downstairs from where he lived.  The veteran had no 
hobbies.  Over the past year, he reported smoking package of 
cigarettes a day and consuming one beer a day and having no 
involvement with illicit drugs.  The veteran stated that he 
has not been gainfully employed since 1989, when he worked as 
a part-time boiler room operator at Flagstaff hospital.  He 
held that job for four months and was fired because of a 
drinking problem.  The longest he has held a job since 
leaving the service was at a senior center, where he was in 
charge of transportation, that job lasted 11 months.  He 
reported staying home most of the time, isolating himself, 
and added he is a loner.  He gets up in the morning and takes 
his son to school and then comes home and spends most of the 
day watching television.  His son catches the bus home from 
school.  The veteran was beginning to operate a computer, 
which he had at home, that his son also enjoyed.  The veteran 
reported having problems remembering things and lack of 
interest in day-to-day activities.  He felt detached from 
people around him and found it difficult to experience loving 
feelings or closeness of others other than his son.  He had 
little or no expectations for the future.  The veteran also 
reported frequent difficulty with sleeping.  Occasionally, he 
had outbursts of anger and frustration.  The veteran had 
difficulty with concentration.  He reported anxiety attacks, 
which bring a feeling of doom, a few times a month.  When 
that happens, he avoids going outside and doing anything that 
would increase the intensity of this feeling of doom.  He 
stated that his depression is so intense sometimes that he 
could not even get out of bed and this happens as frequently 
as twice or three times a month.  He related that he always 
felt sad and unmotivated.  On examination, his dress and 
grooming were adequate.  He was quite fluent with good 
articulation.  His speech tone and rate were normal.  He was 
cooperative with good eye contact.  The veteran described his 
mood as sad, which was consistent with the overall effect.  
In general, his affect was constricted and flat.  He did 
appear depressed.  He was oriented times four.  His 
intelligence was estimated to be average.  The veteran 
reported having attempted suicide twice.  He did not report 
homicidal thoughts or paranoia ideation.  His thought 
processes were logical and coherent.  There were no signs of 
psychosis during the interview.  His judgment for 
hypothetical situations was intact.  His insight into his 
current life situation was apparent.  His remote memory was 
intact.  His short-term recall was intact with three items at 
five minutes.  Diagnoses included major depressive disorder 
and dysthymia.  His GAF score was 45, both current and over 
the past 12 months.  The examiner added that the veteran was 
nearly immobilized from his chronic depressive state.  That 
he seemed only able to do parenting of his 12-year-old son.  
Otherwise the veteran remained at home and struggled to get 
the laundry done and watched television.  His support system 
was extremely shallow and predictably would not get better.  
He was unable to be gainfully employed or socially involved 
in the examiner's opinion due to the chronicity of his 
depressive state.

In a July 2002 rating decision, the RO, in pertinent part, 
assigned a 100 percent rating for major depressive disorder 
and dysthymia, effective from April 9, 2001 and dismissed the 
veteran's TDIU claim as moot.  

In a Brief in Support of Notice of Disagreement Dated July 
22, 2002 received in December 2002, the veteran's then 
attorney raised a claim for entitlement to a TDIU as of the 
date the veteran filed his original claim for service 
connection for depression, dysthymia and PTSD.  In a March 
2003 SOC, the RO denied entitlement to a TDIU and to an 
effective date prior to April 9, 2001 for a 100 percent 
rating for major depressive disorder and dysthymia and for a 
TDIU.  

In August 2003 response, the U.S. Armed Services Center for 
Unit Records Research (CRUR) stated that official Army 
records verify that the veteran's unit was subjected to 
mortar attacks when stationed at Bien Hoa in August and 
September 1971.

A February 2004 VA PTSD examination report reflects that the 
veteran has had significant problems with emotional issues 
throughout his life.  He had psychiatric treatment while in 
service.  The veteran continued to have problems with 
alcoholism up until 1995.  He has been able to maintain 
sobriety but continues to suffer from significant depression 
and anxiety, which is disabling to the point that he is 
unable to work.  The veteran denied delusions or 
hallucinations.  He made reasonable eye contact.  His affect 
was rather flat, dysphoric.  He did not smile.  The veteran 
spoke in brief telegraphic statements.  He seemed to have a 
great deal of difficulty recalling.  The veteran was 
appropriately and neatly dressed and cooperative.  He denied 
current suicidal or homicidal ideation.  The veteran 
indicated that he had difficulty with maintaining his 
personal hygiene at times and that he neglected his 
activities of daily living for two or three days at a time 
because of his depression.  He added that he could not leave 
the house for two or three days at a time due to his anxiety.  
He was fully oriented times three.  The veteran stated that 
he had memory difficulties for which he compensated.  He 
stated that he was somewhat agoraphobic was afraid to go out.  
The veteran reported no irrelevant, illogical, or obscure 
speech patterns.  He was clearly depressed.  The veteran had 
feelings of helplessness, worthlessness and anxiety.  He 
reported very significant sleep difficulty.  The examiner 
stated that the veteran did not appear to suffer from a 
personality disorder.  The examiner opined that the veteran's 
profile was more consistent with a significant depressive 
disorder, perhaps with psychotic features, than PTSD.  The 
diagnoses included major depressive disorder and alcohol 
dependence, in full sustained remission.  His GAF score 
ranged from 45 to 50 in the last year with a current score of 
50.



I.  Pertinent Criteria

A. Finality

VA regulations provide that, an appeal consists of an NOD 
filed in writing within one year of decision notification, 
and, after a statement of the case has been furnished, a 
timely filed substantive appeal.  38 C.F.R. §§ 20.200, 
20.201, 20.202 (2003).

A decision of a duly constituted rating agency or other 
agency of original jurisdiction shall be final and binding on 
all VA field offices as to conclusions based on evidence on 
file at the time VA issues written notification of such.  38 
U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.1103 
(2003).

VA regulations also provide that previous determinations, 
which are final and binding, will be accepted as correct in 
the absence of CUE.  Where evidence establishes such error, 
the prior decision will be reversed or amended.  38 C.F.R. 
§ 3.105(a) (2003).

A final and binding agency decision shall not be subject to 
revision on the same factual basis except by duly constituted 
appellate authorities or except as provided in 38 C.F.R. § 
3.105.  38 C.F.R. § 3.104(a) (2003).

Any application for a benefit that is received after final 
disallowance of an earlier claim will be considered a 
reopened claim if accompanied by new and material evidence.  
38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.160(e) (2003).

If new and material evidence is presented or secured with 
respect to a claim which has been disallowed, the Secretary 
shall reopen the claim and review the former disposition of 
the claim.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 
3.156(a) (effective prior to August 29, 2001).  New and 
material evidence is defined as evidence not previously 
submitted to agency decisionmakers which bears directly and 
substantially upon the specific matter under consideration; 
which is neither cumulative nor redundant; and which, by 
itself or in connection with evidence previously assembled, 
is so significant that it must be considered in order to 
fairly decide the merits of the claim.  38 C.F.R. § 3.156(a) 
(effective prior to August 29, 2001).

B.  Effective Dates

A specific claim in the form prescribed by the Secretary must 
be filed in order for benefits to be paid to any individual 
under the laws administered by VA.  See 38 U.S.C.A. § 5101(a) 
(West 2002); 38 C.F.R. § 3.151(a) (2003).

Any communication or action, indicating an intent to apply 
for one or more benefits under the laws administered by VA, 
from a claimant, his or her duly authorized representative, a 
Member of Congress, or some person acting as next friend of a 
claimant who is not sui juris may be considered an informal 
claim.  Such informal claim must identify the benefit sought.  
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.  38 C.F.R. § 
3.155 (2003).

A VA examination report will be accepted as an informal claim 
for benefits once a formal claim for pension or compensation 
has been allowed or a formal claim for compensation 
disallowed for the reason that the service-connected 
disability is not compensable in degree.  38 C.F.R. § 
3.157(b) and (b)(1) (2003).  The date of outpatient or 
hospital examination or date of admission to a VA or 
uniformed services hospital will be accepted as the date of 
receipt of a claim.  The date of a uniformed service 
examination which is the basis for granting severance pay to 
a former member of the Armed Forces on the temporary 
disability retired list will be accepted as the date of 
receipt of claim.  The date of admission to a non-VA hospital 
where a veteran was maintained at VA expense will be accepted 
as the date of receipt of a claim, if VA maintenance was 
previously authorized, but if VA maintenance was authorized 
subsequent to admission, the date VA received notice of 
admission will be accepted.  The provisions of this paragraph 
apply only when such reports relate to examination or 
treatment of a disability for which service-connection has 
previously been established or when a claim specifying the 
benefit sought is received within one year from the date of 
such examination, treatment or hospital admission.  38 C.F.R. 
§ 3.157(b) (2003).  Similarly, the date of receipt of 
evidence from a private physician or layman will be accepted 
when the evidence furnished by or on behalf of the claimant 
is within the competence of the physician or lay person and 
shows the reasonable probability of entitlement to benefits.  
Moreover, when authenticated evidence from state and other 
institutions is submitted by or on behalf of the veteran and 
entitlement is shown, date of receipt by the VA of 
examination reports, clinical records, and transcripts of 
records will be accepted as the date of receipt of a claim if 
received from State, county, municipal, recognized private 
institutions, or other Government hospitals.  Benefits will 
be granted if the records are adequate for rating purposes; 
otherwise findings will be verified by official examination.  
38 C.F.R. § 3.157.

A report of examination or hospitalization which meets the 
requirements of 38 C.F.R. § 3.157 will be accepted as an 
informal claim for benefits under an existing law or for 
benefits under a liberalizing law or VA issue, if the report 
relates to a disability which may establish entitlement.  
Such evidence will also be accepted as an informal claim for 
pension previously denied for the reason the disability was 
not permanently and totally disabling.  Acceptance of a 
report of examination or treatment as a claim for increase or 
to reopen is subject to the requirements of 38 C.F.R. § 3.114 
with respect to action on VA initiative or at the request of 
the claimant and the payment of retroactive benefits from the 
date of the report or for a period of one year prior to the 
date of receipt of the report.

The VA is considered to have constructive notice of medical 
records in VA's possession.  See Bell v. Derwinski, 2 Vet. 
App. 611 (1992).  The doctrine of "constructive possession" 
of VA records laid out by the Court in Bell is not applicable 
prior to Bell, which was decided in 1992.  See Lynch v. 
Gober, 10 Vet. App. 127 (1997).

The award of benefits based on a finding of error in a prior 
decision under 
38 C.F.R. § 3.105 is the date from which benefits would have 
been payable if the corrected decision had been made on the 
date of the reversed decision.  38 C.F.R. 
§ 3.400(k).

Further, unless specifically provided otherwise, the 
effective date of an award of compensation based on a claim, 
which has been reopened after final adjudication, shall be 
fixed in accordance with the facts found, but shall not be 
earlier than the date of the receipt of the application.  38 
U.S.C.A. § 5110(a); 38 C.F.R. 
§ 3.400(q)(1)(ii), (r).

The effective date for an increased rating will be the 
earliest date as of which it is factually ascertainable that 
an increase in disability had occurred, provided a claim is 
received within one year from such date; otherwise, the 
effective date for an increased rating will be the date of 
receipt of the claim, or the date entitlement arose, 
whichever is later.  38 U.S.C.A. § 5110(a)(b) (West 2002); 38 
C.F.R. 
§ 3.400(o) (2003).  A claim for a TDIU is, in essence, a 
claim for an increased rating and vice versa.  Norris v. 
West, 12 Vet. App. 413, 420 (1999).  A TDIU claim is an 
alternate way to obtain a total disability rating without 
recourse to a 100 percent evaluation under the VA Schedule 
for Rating Disabilities (Rating Schedule).  See, e.g., Parker 
v. Brown, 7 Vet. App. 116, 118 (1994).  Any claim for an 
increased rating is also a claim for a 100 percent evaluation 
under the Rating Schedule.  See, e.g., AB v. Brown, 6 Vet. 
App. 35 (1993).

C.  Increased Rating

Disability evaluations are determined by evaluating the 
extent to which a veteran's service-connected disability 
adversely affects his ability to function under the ordinary 
conditions of daily life, including employment, by comparing 
his symptomatology with the criteria set forth in the VA 
Rating Schedule.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. 
§§ 4.1, 4.2, 4.10 (2003).  Separate diagnostic codes identify 
the various disabilities and the criteria for specific 
ratings.  If two evaluations are potentially applicable, the 
higher evaluation will be assigned if the disability picture 
more nearly approximates the criteria required for that 
evaluation; otherwise, the lower rating will be assigned.  
38 C.F.R. § 4.7.  After careful consideration of the 
evidence, any reasonable doubt remaining is resolved in favor 
of the veteran.  38 C.F.R. § 4.3.  The veteran's entire 
history is reviewed when making a disability evaluation.  38 
C.F.R. § 4.1.  Where service connection has already been 
established and an increase in the disability rating is at 
issue, it is the present level of disability that is of 
primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 
(1994).  

According to the current regulations, a mental disorder shall 
be evaluated "based on all the evidence of record that bears 
on occupational and social impairment rather than solely on 
the examiner's assessment of the level of disability at the 
moment of examination."  38 C.F.R. § 4.126(a) (2003).

Under the current regulations, a 30 percent evaluation is 
warranted where the disorder is manifested by occupational 
and social impairment with an occasional decrease in work 
efficiency and intermittent periods of inability to perform 
occupational tasks (although generally functioning 
satisfactorily, with routine behavior, self-care, and 
conversation normal), due to such symptoms as depressed mood; 
anxiety; suspiciousness; panic attacks (weekly or less 
often); chronic sleep impairment; mild memory loss (such as 
forgetting names, directions, and recent events).  A 50 
percent evaluation is assigned if there is occupational and 
social impairment with reduced reliability and productivity 
due to such symptoms as: flattened affect; circumstantial, 
circumlocutory, or stereotyped speech; panic attacks more 
than once a week; difficulty in understanding complex 
commands; impairment in short-term and long-term memory 
(e.g., retention of only highly learned material, forgetting 
to complete tasks); impaired judgment; impaired abstract 
thinking; disturbances of motivation and mood; or difficulty 
in establishing and maintaining effective work relationships.  
A 70 percent evaluation is assigned if there is occupational 
and social impairment with deficiencies in most areas, such 
as work, school, family relations, judgment, thinking or 
mood, due to such symptoms as: suicidal ideation; obsessional 
rituals which interfere with routine activities; speech 
intermittently illogical, obscure, or irrelevant; near-
continuous panic or depression affecting the ability to 
function independently, appropriately and effectively; 
impaired impulse control (such as unprovoked irritability 
with periods of violence); spatial disorientation; neglect of 
personal appearance and hygiene; difficulty in adapting to 
stressful circumstances (including work or a worklike 
setting); and an inability to establish and maintain 
effective relationships.  A 100 percent evaluation is 
assigned if there is total social and occupational impairment 
due to symptoms including gross impairment in thought 
processes or communication; persistent delusions or 
hallucinations; grossly inappropriate behavior; persistent 
danger of hurting self or others; intermittent inability to 
perform activities of daily living (including maintenance of 
minimal personal hygiene); disorientation to time or place; 
or memory loss for names of close relatives, own occupation, 
or own name.  38 C.F.R. § 4.130, Diagnostic Code 9434 (2003).

II. Analysis

Normally, the effective date assignable for an increased 
rating rests on two separate, relatively simple 
determinations.  See 38 C.F.R. § 3.400(o)(1) and (2).  First, 
there needs to be a finding as to the date on which the 
appellant initiated his increased rating/TDIU claim by formal 
or informal claim.  Second, there needs to be a finding 
regarding on what date the medical evidence of record showed 
that the appellant's entitlement to a higher rating, here a 
100 percent rating, arose.  See 38 U.S.C.A. 
§ 5111(b) (West 2002); 38 C.F.R. §§ 3.151, 3.400(o), (q)(ii), 
(r) (2003).

Once, as here, the appellant has filed a formal claim for 
disability compensation under 38 C.F.R. § 3.151, he obtained 
the procedural benefits bestowed by 38 C.F.R. § 3.155(c), 
which provides that an informal request for increase or 
reopening will be accepted as a claim.  Norris, 12 Vet. App. 
at 417.  See, e.g., Servello v. Derwinski, 3 Vet. App. 196, 
200 (1992) (holding that a VA examination report constituted 
an informal claim for a TDIU).  Thus, once a veteran: (1) 
submits evidence of a medical disability; (2) makes a claim 
for the highest rating possible; and (3) submits evidence of 
unemployability, the requirement in 38 C.F.R. 
§ 3.155(a) that an informal claim "identify the benefit 
sought" has been satisfied and VA must consider whether the 
veteran is entitled to a 100 percent rating or a TDIU.  
Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see 
also Norris, 12 Vet. App. at 420; VAOPGCPREC 12-2001.

In this case, the RO has determined that a VA Form 21-8940 
submitted by the appellant and received on April 9, 2001, 
constituted a formal claim for TDIU benefits.  The question 
arises whether the record shows that, prior to that date, it 
was factually ascertainable that the veteran was entitled to 
a 100 percent schedular rating and that there was an informal 
claim for a higher rating of record, including any 
communication received from the veteran evidencing a belief 
in entitlement to that benefit.  38 C.F.R. §§ 3.1(a), 
3.157(b); Servello, 3 Vet. App. at 199.

On May 3, 1994, the RO received the veteran's claim for 
service connection for depression and dysthymia.  In April 
1999, the RO granted entitlement to service connection for 
major depressive disorder and dysthymia and assigned a 30 
percent rating from the date of claim.  The veteran perfected 
an appeal to the initial 30 percent rating.  During the 
appeal period, at a November 1999 hearing, the veteran 
indicated that his service-connected psychiatric disorder 
made him unemployable.  On April 9, 2001, the RO received the 
veteran's formal application for a TDIU.  In a May 2001 
decision, the Board affirmed the initial 30 percent rating 
and that decision became final upon issuance.  In its 
decision, the Board indicated that it appeared that the 
veteran's November 1999 testimony constituted a claim for a 
TDIU and referred it back to the RO for appropriate action.

The Board finds that the appellant had filed an informal 
claim for an increased rating, following the Board's May 2001 
decision on September 12, 2001, the date of two VA 
evaluations finding him unemployable due to his depressive 
disorder.  38 C.F.R. § 3.157(b).

But the VA regulations governing the award of effective dates 
require that the Board must look to the evidence regarding 
the veteran's service-connected disability dated during the 
one-year period prior to his claim to determine whether it 
was "ascertainable that an increase in disability had 
occurred."  See 38 C.F.R. § 3.400.  
The Board must now determine at what point in time the 
appellant's service-connected psychiatric disorders warranted 
a 100 percent rating.

After careful review of the record, and with the resolution 
of all reasonable doubt in the veteran's favor, the Board 
finds that the evidence of record supports the grant of a 100 
percent rating for the veteran's service-connected 
psychiatric disorders, effective from September 12, 2000.  
The Board acknowledges the fact that SSA found the veteran 
was disabled under its regulations since November 15, 1990, 
due to severe depression, a personality disorder and a prior 
history of alcohol and polysubstance abuse.  It was noted, in 
an April 1993 psychiatric examination, that the veteran had 
good functional capacity with the exception of a serious 
limitation in the area of tolerance to work stresses.  But it 
was not until September 12, 2001 that VA medical records, 
evaluations and examination reports found that the veteran 
met the requirements of a 100 percent rating for his service-
connected psychiatric disorders.  Both VA social worker and 
psychiatric examination reports concluded that the veteran 
was unemployable due to his service-connected depressive 
disorder.  In the VA examiner's opinion, the veteran was 
unable to be gainfully employed or socially involved due to 
the chronicity of his depressive state.  His GAF score was 
45, both current and over the past 12 months.  The Board 
observes that a GAF score of 41-50 indicates serious symptoms 
and serious impairment in social, occupational, or school 
functioning (e.g., no friends), while a GAF score of 31 to 40 
indicates major impairment in several areas, such as work or 
school, family relations, judgment, thinking, or mood (e.g., 
depressed man avoids friends, neglects family, and is unable 
to work). See Diagnostic and Statistical Manual of Mental 
Disorders, (4th ed. 1994) ((DSM- IV) adopted by VA at 38 
C.F.R. §§ 4.125 and 4.126 (2003)).  The Board is cognizant 
that a GAF score is not determinative by itself.  The 
September 2001 examiner added that the veteran was nearly 
immobilized from his chronic depressive state.  

Resolving all doubt in the veteran's favor, based on the 
September 2001 VA examiner's findings and the assignment of a 
GAF score of 45 over the previous 12 months, the Board 
concludes that the medical evidence shows that the veteran 
met the criteria for a 100 percent rating effective one year 
prior to that examination.  Thus, the Board finds that the 
date of entitlement to a 100 percent rating is September 12, 
2001.  Except for a July 1994 VA PTSD examination report 
reflecting a GAF score of 35 for chronic severe PSTD and 
substance abuse disorders, prior to September 12, 2001, the 
veteran's GAF scores generally had ranged between 32 and 65 
and his service-connected psychiatric disorders were felt to 
be moderate in degree.  The Board observes, however, that the 
most recent VA examiner has determined that the veteran does 
not meet the criteria for a diagnosis of PTSD. 

In summary, the evidence shows that, after September 12, 
2000, the veteran's service-connected psychiatric disorder 
was manifested by total occupational and social impairment 
characterized by irritability, easy to anger, difficulty 
getting along with others, continuous depression, anxiety, 
chronic sleep impairment, some suicidal ideation, 
unemployability, and social isolation.  These findings 
support a conclusion that his major depressive disorder and 
dysthymia resulted in total occupational and social 
impairment and that he was demonstrably unable to obtain and 
retain employment as of September 12, 2000, one year prior to 
the date of the September 2001 VA examination; thus 
warranting a 100 percent rating under Diagnostic Code 9434.  
Accordingly, the criteria to assign an earlier effective date 
of September 12, 2000, and no earlier, for a 100 percent 
rating for major depressive disorder and dysthymia have been 
met.  


ORDER

An effective date of September 12, 2000 for major depressive 
disorder and dysthymia is granted, subject to the laws and 
regulations governing the payment of monetary benefits.


REMAND

The veteran claims that he should be service connected for 
PTSD.  As noted above, the last VA examiner determined that 
the veteran did not meet the criteria for PTSD, but that 
opinion appears to be based on an incomplete summary of the 
veteran's claimed stressors.  In particular, the Board notes 
that the veteran claims that while stationed at Fort Carson 
he was assaulted by five Native American soldiers, which 
resulted in a broken nose.  An April 1975 X-ray report notes 
that the veteran was seen due to an "assault - on post" and 
it was determined that he had a fractured nasal bone.  In a 
September 1994 rating decision, the RO granted service 
connection for a fracture of the nasal bone and assigned a 
noncompensable rating from May 1994.

The Board notes that VA has changed the criteria set forth in 
38 C.F.R. § 3.404(f) pertaining to service connection for 
PTSD twice since 1998.  The first amendments became effective 
on June 18, 1999.  See 64 Fed. Reg. 32,808 (June 18, 1999).  
The second amendments became effective March 7, 2002.  See 
Post-Traumatic Stress Disorder Claims Based on Personal 
Assault, 67 Fed. Reg. 10,330, 10,332 (Mar. 7, 2002) (codified 
as amended at 38 C.F.R. § 3.304(f) (2003)).  The 1998 and 
1999 criteria for evaluating PTSD claims are substantially 
the same, as both versions of the regulations require medical 
evidence establishing a diagnosis of the condition, credible 
supporting evidence that the claimed in-service stressor 
occurred, and a link, established by medical evidence, 
between current symptomatology and the claimed in-service 
stressor.  See 38 C.F.R. § 3.304(f) (1998), (2001).  The 1999 
amendments primarily codified the decision of the Court in 
Cohen v. Brown, 10 Vet. App. 128 (1997), and brought 38 
C.F.R. § 3.304(f) in line with the governing statute, 38 
U.S.C.A. § 1154(b) (West 1991), which relaxed certain 
evidentiary requirements for PTSD claimants who have combat-
related stressors.  The Board notes that the 2002 amendments 
codified manual procedures pertaining to PTSD claims 
resulting from personal assault.

With regard to PTSD, VA regulations reflect that symptoms 
attributable to PTSD are often not manifest in service.  
Accordingly, service connection for PTSD requires a current 
medical diagnosis of PTSD (presumed to include the adequacy 
of the PTSD symptomatology and the sufficiency of a claimed 
in-service stressor), credible supporting evidence that the 
claimed in-service stressor(s) actually occurred, and medical 
evidence of a causal nexus between current symptomatology and 
the specific claimed in-service stressor(s).  See 38 C.F.R. § 
3.304(f) (2003).

Because it appears that the veteran did not engage in combat 
with the enemy, his lay testimony or statements alone are not 
enough to establish the occurrence of the alleged stressors, 
including one of personal assault.  See Zarycki v. Brown, 6 
Vet. App. 91, 98 (1993).  Instead, the record must contain 
service records or other credible evidence, which 
corroborates the stressor.  38 U.S.C.A. § 1154(b) (West 
2002); 38 C.F.R. § 3.304(d), (f) (2003); Gaines v. West, 11 
Vet. App. 353, 357-58 (1998).  The corroboration of every 
detail is not required.  Pentecost v. Principi, 16 Vet. App. 
124 (2002) (citing Suozzi v. Brown, 10 Vet. App. 307 (1997).  
Such corroborating evidence cannot consist solely of after-
the-fact medical nexus evidence.  See Moreau v. Brown, 9 Vet. 
App. 389, 396 (1996).

With regard to a claimed stressor involving allegations of 
personal assault, VA recognizes that veterans claiming 
service connection for disability due to an in-service 
personal assault face unique problems documenting their 
claims.  Personal assault is an event of human design that 
threatens or inflicts harm.  Although these incidents are 
most often thought of as involving female veterans, male 
veterans may also be involved.  These incidents are often 
violent and may lead to the development of PTSD secondary to 
personal assault.  VA ADJUDICATION PROCEDURE MANUAL M21-1, 
Part III, 5.14 (April 30, 1999) (hereinafter M21-1).  Because 
assault is an extremely personal and sensitive issue, many 
incidents of personal assault are not officially reported, 
and victims of this type of in-service trauma may find it 
difficult to produce evidence to support the occurrence of 
the stressor.  Therefore, alternative evidence must be 
sought.  The M21-1 includes a sample letter to be sent to the 
veteran, asking him to provide detail as to any treatment he 
had received, any family or friends he had communicated with 
concerning this claimed personal assault, and any law 
enforcement or medical records pertaining to the alleged 
assault.  M21-1, Part III, 5.14 (April 30, 1999).  In 
particular, the Board observes that the Court held in Patton 
v. West, 12 Vet. App. 272 (1999), that the provisions in M21- 
1, Part III, 5.14(c), which address PTSD claims based on 
personal assault are substantive rules which are the 
equivalent of VA regulations and must be considered.  See 
also YR v. West, 11 Vet. App. 393, 398-99 (1998) (5.14 is a 
substantive rule and the equivalent of a VA regulation).

With respect to claims involving personal assault, all 
available evidence must be carefully evaluated.  If the 
military records do not document that a personal assault 
occurred, alternative evidence might still establish an in-
service stressful incident.  Behavior changes that occurred 
at the time of the incident may indicate the occurrence of an 
in-service stressor.  See M21-1, Part III, 5.14(8).
 
Post-service medical records show repeated treatment for 
alcohol and substance abuse.  The Board observes that, in 
Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001), reh'g en 
banc denied, 268 F.3d 1340 (2001), the U. S. Court of Appeals 
for the Federal Circuit (Federal Circuit) held that 38 
U.S.C.A. § 1110 (West 2002) does not preclude compensation 
for an alcohol or drug abuse disability secondary to a 
service-connected disability, or use of an alcohol or drug 
abuse disability as evidence of the increased severity of a 
service-connection disability, such as PTSD.  The Board also 
notes that service personnel records confirm that the veteran 
was a cook and the CRUR has verified that the veteran's unit 
was subject to mortar attacks while he was stationed in 
Vietnam.  The Board finds that the RO should also develop the 
veteran's PTSD claim as due to a stressor of personal assault 
(broken nose), while at Fort Carson.  The RO should attempt 
to obtain copies of any missing personnel records for the 
veteran to include copies of any Article 15s or any reports 
of an assault in April 1975.  Except for VA examination 
reports, the last VA treatment records are dated in June 
2001.  As the duty to assist includes obtaining pertinent VA 
treatment records and obtaining a medical examination and 
opinion when necessary to make a determination, the Board 
feels that the RO should obtain any missing VA treatment 
records for the veteran from June 2001, should ask the 
veteran to complete an in-service personal assault 
questionnaire, and should afford the veteran another 
examination to clarify his psychiatric diagnoses and 
determine whether he has PTSD related to service.  The Board 
observes that when it is not possible to separate the effects 
of a nonservice-connected condition from those of a service-
connected condition, reasonable doubt should be resolved in 
the claimant's favor with regard to the question of whether 
certain signs and symptoms can be attributed to the service-
connected condition.  See, e.g., Mittleider v. West, 11 Vet. 
App. 181, 182 (1998).  In preparing a summary of stressors 
for the review of the VA examiner, the RO should include the 
veteran's response, if any, to the RO's new request for 
personal assault information.  The Board reminds the veteran 
that the duty to assist is not a one-way street.  Wood v. 
Derwinski, 1 Vet. App. 190 (1991).

Finally, the Board observes that the veteran's service-
connection claim for PTSD is so closely tied with the issues 
of entitlement to a TDIU prior to April 9, 2001, that a final 
decision on these latter issues cannot be rendered until a 
decision on the service-connection issue has been rendered, 
and thus they are "inextricably intertwined."  See Harris v. 
Derwinski, 1 Vet. App. 180, 183 (1991).  

Accordingly, further appellate consideration will be deferred 
and the case is REMANDED to the RO for the following:

1.  The RO should ask the veteran to 
complete an in-service personal assault 
questionnaire about the personal assault 
claimed while serving at Fort Carson in 
1975.

2.  The RO should obtain and associate 
with the claims file copies of any 
missing personnel records for the veteran 
to include copies of any records of a 
personal assault or any Article 15s, in 
particular, during 1975 while the veteran 
was stationed at Fort Carson.  If 
additional records for the veteran are 
not found, the RO should document the 
record and explain what actions it took 
and the results of its efforts.

3.  After items 1 and 2 are completed, 
the RO should prepare a report detailing 
the nature of any in-service stressor 
that was established by the record, 
including the April 1975 personal 
assault.  If none was verified, the 
report will so state.  This report is 
then to be added to the claims file. 

4.  After items 1 through 3 are 
completed, the RO should make 
arrangements for the veteran to be 
afforded an examination by a 
psychiatrist, who has not already 
examined him, to determine whether PTSD 
is present, and, if so, the etiology of 
PTSD.  The claims file and copies of 
38 C.F.R. § 4.125(a), an in-service 
stressor(s) summary, and this REMAND must 
be reviewed by the examiner in 
conjunction with the examination.  All 
special studies or tests including 
psychological testing and evaluations, 
such as the Minnesota Multiphasic 
Psychological Inventory, deemed necessary 
by the examiner are to be accomplished.  
The examiner should provide explicit 
responses to the following questions:

(a) Does the veteran have PTSD?

(b) If PTSD is found, the examiner should 
determine the etiology and the nature and 
extent thereof.  The examiner should 
offer an opinion as to whether it is at 
least as likely as not (50 percent or 
more probability) that such disorder 
began during, or was aggravated 
(worsened), as the result of some 
incident of active service.

(c) If a diagnosis of PTSD is 
appropriate, the examiner should specify 
the credible "stressor(s)" that caused 
the disorder and the evidence upon which 
that opinion was based to establish the 
existence of the stressor(s).  The 
examiner should comment explicitly upon 
whether the veteran's alleged stressor(s) 
was as a result of an April 1975 personal 
assault while stationed at Fort Carson, 
or enemy mortar attacks while stationed 
in Vietnam in 1971/1972.  If so, the 
examiner should also comment explicitly 
upon whether there is a link between such 
a stressor and the current symptoms, if 
any.  

The rationale for any opinion and all 
clinical findings should be reported in 
detail.  If it is not possible to 
separate the effects of a nonservice-
connected psychiatric disorder from those 
of the veteran's service-connected major 
depressive disorder and dysthymia, or the 
veteran's alcohol/substance abuse is 
determined to be secondary to his 
service-connected psychiatric disorders, 
the examiner should so state.

5.  The RO should review the claims file 
and ensure that all notification and 
development necessary to comply with 
38 U.S.C.A. §§ 5102, 5103, and 5103A, 
(West 2002), and any other applicable 
legal precedent (including all provisions 
under 38 U.S.C.A. §§ 5102, 5103, 5103A 
(West 2002); 66 Fed. Reg. 45,620 (Aug. 
29, 2001) (codified as amended at 38 
C.F.R. § 3.102, 3.159 and 3.326(a)); as 
well as the holdings in Quartuccio v. 
Principi, 16 Vet. App. 183 (2002) and 
Charles v. Principi, 16 Vet. App. 370 
(2002); and the Veterans Benefits Act of 
2003, Pub. L. No. 108-183, 117 Stat. 2651 
(Dec. 16, 2003) is fully satisfied.  In 
particular, the RO must (1) request or 
tell the claimant to provide any evidence 
in his possession that pertains to his 
claim seeking entitlement to a TDIU prior 
to April 9, 2001(2) inform him what is 
needed to establish a total disability 
rating assigned on an extra-schedular 
basis, under the procedures set forth in 
38 C.F.R. § 4.16(b), for veterans who are 
unemployable by reason of service 
connected disabilities, but who fail to 
meet the percentage standards set forth 
in 38 C.F.R. 
§ 4.16(a), and (3) inform him of any 
information and evidence not of record 
(a) that is necessary to substantiate his 
TDIU prior to April 9, 2001, (b) that VA 
will seek to provide, and (c) that the 
claimant is expected to provide if the 
provisions of 38 C.F.R.
 § 4.16(b) are used.  The claims file 
must include documentation that there has 
been compliance with the VA's redefined 
duties to notify and assist a claimant as 
set forth in the VCAA and as specifically 
affecting the issues remaining on appeal.

6.  Following completion of the above, 
the RO should readjudicate the veteran's 
service-connected claim for PTSD and for 
a TDIU prior to April 9, 2001, including 
review of any additional evidence 
obtained on remand.  If any determination 
remains unfavorable to the appellant, he 
and his representative, if any, should be 
provided with a supplemental statement of 
the case and be afforded an opportunity 
to respond before the case is returned to 
the Board for further review.

7.  After completion of the foregoing, 
the RO should review the file and ensure 
that all of the directives of this REMAND 
have been carried out in full.  If not, 
the RO should take any action necessary 
to ensure such compliance.  38 C.F.R. § 
4.2 (2003); see also Stegall v. West, 11 
Vet. App. 206 (1998).

The purposes of this remand are to comply with due process of 
law and to further develop the veteran's claims.  No action 
by the veteran is required until he receives further notice; 
however, the veteran is advised that failure to cooperate by 
reporting for examination may result in the denial of his 
claim(s).  38 C.F.R. § 3.655 (2003).  The Board intimates no 
opinion, either legal or factual, as to the ultimate 
disposition warranted in this case, pending completion of the 
above.  The appellant 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 of 
Veterans' Appeals or by the United States Court of Appeals 
for Veterans Claims 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).




	                     
______________________________________________
	A. BRYANT
	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

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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. 


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