Gallegos v. Gober

14 Vet. App. 50, 2000 U.S. Vet. App. LEXIS 791, 2000 WL 1133599
CourtUnited States Court of Appeals for Veterans Claims
DecidedAugust 11, 2000
Docket99-106
StatusPublished
Cited by14 cases

This text of 14 Vet. App. 50 (Gallegos v. Gober) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gallegos v. Gober, 14 Vet. App. 50, 2000 U.S. Vet. App. LEXIS 791, 2000 WL 1133599 (Cal. 2000).

Opinions

STEINBERG, Judge, filed the opinion of the Court. FARLEY, Judge, filed a dissenting opinion.

STEINBERG, Judge:

The appellant, Vietnam veteran Raymond Gallegos, appeals through counsel a December 9, 1998, Board of Veterans’ Appeals (BVA or Board) decision that denied entitlement to an earlier effective date for the award of Department of Veterans Affairs (VA) service connection for post-traumatic stress disorder (PTSD). Record (R.) at 9. The appellant has filed a brief, and the Secretary has filed a brief. This appeal is timely and the Court has jurisdiction pursuant to 38 U.S.C. § 7252(a). For the reasons set forth below, the Court will reverse the BVA decision and remand the matter to the Board for proceedings consistent with this opinion.

I. Background

The veteran served on active duty from September 1966 to May 1970. R. at 12. [52]*52In March 1992, he filed a claim for VA service connection for diabetes and chlor-acne. R. at 95-98. In a statement received by a VA regional office (RO) on August 31, 1993, he amended the claim to include a claim for service connection for PTSD. R. at 190a. A February 1993 social history, prepared by a private social worker, contained a diagnosis of PTSD. R. at 184. A November 1993 VA examination failed to make a diagnosis of PTSD and recommended hospital observation and evaluation. R. at 217. An April 1994 discharge summary, which included a mental status examination and psychological testing, included a diagnosis of dependent personality but not of PTSD. R. at 219-20. In September 1994, the VARO determined that the evidence of record faked to show a diagnosis of PTSD and denied the appellant’s claim. R. at 222-24. On October 11, 1994, the appellant’s representative at the time, the Disabled American Veterans (DAV), submitted a letter, entitled “Memo to Rating Board” [hereinafter “DAV letter”], which stated in full:

After review of this veteran’s claims file and the current rating decision, it is our opinion that denial of the veteran’s claim for [PTSD] was a little bit premature. Further development, i.e., review of the Social Worker’s statement in regards to referral to the Environment Support Group for verification of specific incidents for stressors would prove beneficial to fair evaluation of this veteran’s claim.
We suggest careful gleaning of the information from the Social Worker’s statement would give sufficient detail without delay to request thorough investigation. Please do not forward this veteran the standard stressor development letter. Your appropriate attention is appreciated.

R. at 228.

The claim lay dormant until February 20, 1997, when the veteran, through attorney James W. Stanley, Jr., filed an application to reopen the disallowed service-connection claim for PTSD. R. at 272. In October 1997, the RO granted service connection for PTSD and assigned a February 20, 1997, effective date. R. at 332-35. Also in October 1997, the veteran filed a Notice of Disagreement (NOD) as to the assigned effective date. R. at 339. At a March 1998 hearing, Mr. Stanley indicated that an issue was whether the DAV letter was an NOD as to the September 1994 RO decision. R. at 367.

In the December 1998 BVA decision here on appeal, the Board determined that the appellant was not entitled to an effective date earlier than February 20, 1997. R. at 1-10. The BVA concluded that, because the September 1994 rating decision had become final when the appellant failed to file a valid NOD, an effective date of August 31, 1993, the date of receipt of the appellant’s original claim for PTSD service connection, was not warranted. R. at 4. The Board decided that the DAV letter was not a valid NOD as to the September 1994 RO decision because, although it could reasonably be construed as disagreeing with the RO decision, it “could not be reasonably construed to indicate the appellant’s desire for appellate review”. R. at 8. The BVA stated that a note attached to the letter reflected that the RO had understood it to be a request for further development. Ibid. In their briefs, the appellant and the Secretary both indicate that they are unable to locate this note. Appellant’s Brief (Br.) at 8; Secretary’s Br. at 7. The note is not part of the record on appeal (ROA) before the Court.

II. Analysis

A. Effective-Date Law

The determination of the effective date for an original claim is governed by 38 U.S.C. § 5110(a), which provides:

Unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensa[53]*53tion, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.

See also 38 C.F.R. § 3.400(b)(2) (1999) (providing that effective date shall be date of receipt of claim or date entitlement arose, whichever is later, unless claim received within one year after separation from service); Tucker v. West, 11 Vet.App. 369, 372 (1998) (concerning effective date of original claim for service connection); Dinsay v. Brown, 9 Vet.App. 79, 87 (1996). In his brief, the appellant advises the Court that at issue here is “whether or not [the DAY letter] was a valid NOD, thereby establishing an earlier effective date” for the PTSD service-connection award. Br. at 6. If the appellant is correct that the DAV letter was a valid NOD, his 1993 claim remains open and pending, and thereby pertinent to the decision on the proper effective date for his PTSD rating. See 38 C.F.R. § 3.160(c) (1999) (a “[pending claim” is an “application, formal or informal, which has not been finally adjudicated”). Although this law forms the backdrop for this case and shows why the NOD question is critical to the outcome of the merits decision as to effective date, the Court will address only the NOD question in this opinion.

B. NOD Statute and Regulation

Section 7105 of title 38 of the U.S.Code provides as follows in pertinent part:

(a) Appellate review will be initiated by a notice of disagreement and completed by a substantive appeal after a statement of the case is furnished as prescribed in this section. Each appellant will be accorded hearing and representation rights pursuant to the provisions of this chapter and regulations of the Secretary.
(b)(1) Except in the ease of simultaneously contested claims, notice of disagreement shall be ñled within one year from, the date of mailing of notice of the result of initial review or determination. Such notice, and appeals, must be in writing and be ñled with the activity which entered the determination with which disagreement is expressed

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Cite This Page — Counsel Stack

Bluebook (online)
14 Vet. App. 50, 2000 U.S. Vet. App. LEXIS 791, 2000 WL 1133599, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gallegos-v-gober-cavc-2000.