BVA9406102
DOCKET NO.  92-13 314     )       DATE
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THE ISSUE

Entitlement to an effective date earlier than May 1, 1991, for the
award of disability compensation benefits.

REPRESENTATION

Appellant represented by: The American Legion

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Hilary L. Goodman, Counsel

INTRODUCTION

The veteran had active service from December 1968 to December 1972
and from September 1976 to November 1980.  This matter originally
came before the Board of Veterans' Appeals (hereinafter the Board) on
appeal from a decision of June 1991 by the Wichita, Kansas, Regional
Office (RO).  Following review, in April 1993 the veteran's case was
remanded for further development.  The appeal was again docketed at
the Board in September 1993.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends that in December 1984, following a series of
medical examinations by military doctors, he was advised by the Navy
that he was being removed from the Temporary Disability Retired List
(TDRL) and granted severance pay.  He asserts that the Department of
Veterans Affairs (VA) was informed of this action as the VA contacted
him in May 1985 and advised him that he would automatically begin
receiving compensation benefits for his service-connected disability
after the severance pay was recouped.  He avers that his award of VA
compensation should therefore be effective in May 1985 and not in May
1991.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A. § 7104
(West 1991), has reviewed and considered all of the evidence and
material of record in the veteran's claims file.  Based on its review
of the relevant evidence in this matter, and for the following
reasons and bases, it is the decision of the Board that the evidence
supports an effective date for the award of disability compensation
benefits of the day following the last date the veteran was paid
military retired pay.

FINDINGS OF FACT

1.  All relevant evidence necessary for an equitable disposition of
the veteran's claim has been obtained by the originating agency.

2.  An original claim for service connection for Meniere's disease
was received from the veteran in December 1980.  By rating action in
April 1981, service connection for Meniere's disease with tinnitus
was granted; a 30 percent disability evaluation was assigned,
effective December 1, 1980.

3.  VA was notified in June 1981 that the veteran elected not to
waive his retired pay.

4.  Medical examinations of the veteran to evaluate his bilateral
hearing disability, vertigo and facial hypesthesia were conducted on
August 27, 1984 at Fitzsimmons Army Medical Center.  Following
referral to the Physical Evaluation Board (PEB), the veteran was
removed from TDRL and discharged from the service for physical
disability with severance pay, effective in March 1985.

5.  The VA was notified by the Navy in April 1985 that, the previous
month, the veteran had been removed from TDRL and discharged from the
naval service for physical disability with severance pay.

6.  In correspondence dated in May 1985, the VA advised the veteran
that it had been informed by the Navy of his removal from TDRL and
his permanent retirement with severance pay.  The veteran was also
advised that if he wished to reopen his claim for disability
conpensation, he should submit a statement.  It was specifically
stated that "[w]hen the entire amount of your severance pay has been
recouped, you may automatically begin to receive compensation."  No
written response was received from the veteran.

7.  In April 1991, the veteran requested information as to the status
of recoupment of his disability severance pay by the VA.

8.  It is reasonably probable that the May 1985 VA letter was
honestly construed by the veteran as meaning that recoupment of the
severance pay had been initiated and that such recoupment was not
dependent on his responding to the letter.

CONCLUSION OF LAW

The award of disability compensation, effective from the day
following the last date the veteran was paid military retired pay, is
warranted.  38 U.S.C.A. §§ 5107, 5110 (West 1991);
38 C.F.R. §§ 3.109, 3.155, 3.157(b)(1), 3.400 (1993)

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The veteran is seeking an earlier effective date for the grant of VA
disability compensation benefits.  We note that we have found that
the veteran's claim is "well grounded" within the meaning of
38 U.S.C.A. § 5107(a).  That is, we find that he has presented a
claim which is plausible.  We are also satisfied that all relevant
facts have been properly developed and no further assistance to the
veteran is required to comply with the duty to assist mandated by
38 U.S.C.A. § 5107(a).

The relevant facts in this case are not in dispute.  The veteran, who
was transferred to TDRL, effective December 1, 1980, submitted an
original claim for service connection for Meniere's disease in
December 1980.  Service connection for Meniere's disease with
tinnitus was granted in April 1981 and a 30 percent disability
evaluation was assigned.  Shortly thereafter, in June 1981, VA was
informed that the veteran did not wish to waive his retired pay.  The
veteran, who remained on TDRL, was ordered to report on August 27,
1984, to Fitzsimmons Army Medical Center for his periodic physical
examination.  In the medical report completed after the scheduled
examination was conducted it was concluded that the veteran's facial
hypesthesia and vertigo had resolved and that his mild left
sensorineural hearing loss in speech frequencies and anacousic right
ear had not.  It was recommended that he be referred to a PEB.  The
PEB, in a December 1984 letter to the veteran, listed diagnoses of
bilateral Meniere's disease, with right side being more symptomatic,
resolved; and anacousic right ear and mild sensorineural hearing
loss, left.  It was noted that the recommended finding was that the
veteran was unfit because of the latter physical disability.  The VA
was informed by the Navy in April 1985 that the previous month the
veteran had been removed from TDRL and discharged from naval service
for physical disability with severance pay.

The VA, in correspondence dated May 13, 1985, advised the veteran
that it had been informed by the Navy of his removal from TDRL and
his permanent retirement with severance pay.  The veteran was also
advised that, if he wished to reopen his claim for disability
compensation benefits, he should submit a statement on the enclosed
VA Form 21-4138, Statement in Support of Claim.  It was specifically
stated that "[w]hen the entire amount of your severance pay has been
recouped, you may automatically begin to receive compensation."  No
written response was received from the veteran.  In April 1991, the
veteran requested information as to the status of the recoupment of
his disability severance pay by VA.  In June 1991, the originating
agency assigned an effective date of May 1, 1991, for the grant of
the veteran's disability compensation and informed him that his
compensation would be withheld until the full amount of his severance
pay had been recovered.

Under the provisions of 38 C.F.R.§ 3.157(b), receipt of a report of a
uniformed service examination will be accepted as an informal claim
in the case of a retired member of a uniformed service whose formal
claim for compensation has been disallowed because of receipt of
retired pay.  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 benefits sought is received within one year from the
date of such examination.  This veteran's August 27, 1984 uniformed
service examination was the basis for granting severance pay and was
for a disability for which service connection had already been
granted, and he was on TDRL at that time.

An informal claim is defined, under 38 C.F.R. § 3.155, as any
communication or action indicating an intent to apply for one or more
benefits under the laws administered by VA.  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.  The RO
promptly contacted the veteran after learning of his removal from
TDRL and retirement with severance pay, and advised him that he might
wish to submit VA Form 21-4138 to reopen his claim for disability
compensation.  This action was in conformity with the applicable
instructions contained in Paragraph 21.03b, M21-1, Part IV.  However,
the
May 13, 1985, letter from the RO contained language which, we
conclude, could have been honestly construed by the veteran as
meaning that his severance pay was already being recouped and his
disability compensation payments would begin "automatically" after
recoupment was completed.  We find it to be reasonably probable that
this was the reason he took no action to perfect his claim within one
year of the RO's notice.

38 C.F.R. § 3.109(b) provides that time limits within which
claimant's are required to act to perfect a claim may be extended for
good cause shown.  The Board is of the opinion that such good cause
for the veteran's failure to timely perfect his claim has been shown.
Accordingly, the effective date of the award of disability
compensation benefits is the day following the last date the veteran
was paid military retired pay.  38 U.S.C.A. §§ 5107, 5110; 38 C.F.R.
§§ 3.109, 3.155, 3.157(b)(1), 3.400.

ORDER

Entitlement to an effective date for the award of disability
compensation benefits as of the day following the last date the
veteran was paid military retired pay is granted.  This award is
subject to other applicable regulations regarding payment of monetary
benefits.

BOARD OF VETERANS' APPEALS
WASHINGTON, D.C.  20420

          ROBERT D. PHILIPP       JAMES R. ANTHONY

          *
           (MEMBER TEMPORARILY ABSENT)

*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans'
Appeals Section, upon direction of the Chairman of the Board, to
proceed with the transaction of business without awaiting assignment
of an additional member to the Section when the Section is composed
of fewer than three Members due to absence of a Member, vacancy on
the Board or inability of the Member assigned to the Section to serve
on the panel.  The Chairman has directed that the Section proceed
with the transaction of business, including the issuance of
decisions, without awaiting the assignment of a third Member.

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. § 7266 (West 1991), a
decision of the Board of Veterans' Appeals granting less than the
complete benefit, or benefits, sought on appeal is appealable to the
United States Court of Veterans Appeals within 120 days from the date
of mailing of notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after November 18,
1988.  Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402
(1988).  The date which appears on the face of this decision
constitutes the date of mailing and the copy of this decision which
you have received is your notice of the action taken on your appeal
by the Board of Veterans' Appeals.