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Some recent decisions discuss earlier effective date in the award of benefits.

One decision, which may remind veterans of useful information in the personnel file which could be used to argue for an effective date back to the date of discharge ,is McGee v. Peake, ___F.3d. ___, 2007-7071, decided January 8, 2008. There the Court decided that when the law says that decisions of the Board shall be based upon the entire record and upon consideration of all evidence and material of record and applicable provisions of law, it means that the Board must consider the provisions of law which apply to the discharge of physically disabled service members. Accordingly, the VA must consider whether the veteran’s military personnel file contains proof that the veteran was given the benefit of the law requiring the Armed Forces, when it discharges a physically disabled service member or releases him or her from active duty, to give the service member two options, to file a VA claim or to refuse to file a VA claim, or secondly, to sign a statement that the right to file a claim has been explained or to refuse to file such statement.

If the military personnel file contains no notation that the veteran refused to file a claim, and contains no sign statement nor an indication that the veteran refused to sign a statement, and if the veteran states that he or she did file or indicated a desire to file for benefits at the time of discharge, the question may arise whether the veteran is able to claim an earlier effective based upon the benefit of the doubt. Certainly, McGee stands for the proposition that the VA must consider the content of the military personnel file and the veteran’s testimony concerning the issue of the filing of a claim at the time of discharge.

The second case deals with the interesting question of whether an award of compensation based on a disability that is secondary to a service-connected disability should be assigned an effective date up to one year earlier than the date of an increase compensation claim, when that claim secondary disability is filed within one year of the onset of the secondary disability.

In the case of Ross v. Peake, 05-2286, decided January 2, 2008, the veteran was granted benefits, at the 10% level, in May 1999, for a service connected heart condition, effective February 1989. In December 1999, as part of his appeal, the veteran submitted a vocational evaluation which stated that his heart condition and his anxiety had prevented him from working since 1985. The VA considered that evaluation to be a claim for secondary service connection for depression and for an unemployability (“TDIU”) rating; determined that its previously assigned effective date was erroneous, so the effective date of August 15, 1994 was assigned for the heart condition; and determined that the claims for depression and TDIU should be denied. Ultimately the VA assigned a 70% disability rating for depression with anxiety, secondary to the heart condition and awarded TDIU, assigning an effective date of December 7, 1999 to all the ratings. On appeal, the veteran claimed that is effective date should either be February 2,1989, the initial date assigned to the rating for his heart condition, or August 15, 1994, the date the VA later determined was proper effective date.

The veteran claimed that he is entitled to the earlier affected dates because the effective date assigned for the secondary condition must be the same as the effective date for the underlying condition because VA regulations at § 3.310 state that a “secondary condition shall be considered as part of the original condition”. The Veterans Court rejected this argument relying on its earlier decision in Ellington v. Nicholson , 04-0403, 2007 WL 2126022, at *4 (July 25, 2007) in which the Court, relying on an earlier decision held that §3.310 governs only entitlement to secondary service connection claims and the effective date to be assigned to a secondary service-connected condition is governed by the same rules as an initial claim .

The Court also rejected the veteran’s assertion that a grant of secondary service connection is an award of increased compensation which would allow for the earlier effective date, holding that a claim for secondary service connection is a claim for additional disability as a result of a service-connected condition not claim for increase

In the Court’s later rejection of the veteran’s request for full-Court consideration of this issue, (order dated January8, 2008) there is a dissent by a Judge who argued for a full-Court consideration based on the exceptional importance of this issue and based on that Judge’s belief that a claim for secondary service connection is a claim for increased compensation arising from the original condition.

Because there may be a decision from the Federal Circuit supporting veterans on this issue coming-out of either the appeal from this case or from the Ellington case, any veteran who has filed a claim for secondary service connection should continue to appeal the assigned effective date in order to get the benefit of a possible favorable decision from the Federal Circuit on this issue.

A recent decision demonstrates the danger of a veteran filing an appeal without the advice of a trained representative. In Gibson v. Peake, 05-2131, on December 21st, 2007, the Veterans Court decided that where a veteran filed a VA form 9 (the form required for a BVA appeal) together with attached sheets within two months of an RO decision, and before the RO issued a Statement of the Case (“SOC”) that appeal form constituted a notice of disagreement to the RO decision and did not constitute a premature BVA appeal. Thus, the Court concluded that the BVA was correct in determining that one year after the denial of the claim the denial became final because the veteran failed to file another form 9 within one year of the RO decision and after the RO issued the SOC.

The Court in Gibson was careful to note that, as it had decided in Archibold v. Brown, 9 Vet. App. 124,132 (1996), although it is possible to file a valid appeal to the BVA (“a Substantive Appeal” ) before the RO issues a Statement of the Case, in this case the “tenor”of the veteran’s arguments on the sheets attached to his VA 9 form is consistent with a Notice of Disagreement. Additionally, the Court noted that the veteran did file a second VA 9 nine months after the SOC informed him that he needed to file a VA 9 but, unfortunately, that second filing was more than a year after the initial rating and therefore was untimely.

We can learn from Gibson that the content of papers filed and the timing of their filing is critical, requiring thorough knowledge of what is required in order to avoid being closed out of benefits.

In December, the Veterans Court rejected a veterans claim that he is entitled to two clothing allowances because he has two disabilities which wear out his clothes. In Sursely v. Peake, 05-2194, decided December 21, 2007, a veteran who had his left lung amputated above the elbow and his right leg amputated above the knee as a result of injuries sustained by a land mine explosion was claiming entitlement to an annual clothing allowance for his shirts, which tend to wear out because of his artificial arm, and a separate clothing allowance for his pants, which tend to wear out because of a loss of the right lower leg and his use of a wheelchair.

The court agreed with the VA that §1162 and §3.810 also arise only one clothing allowances per veteran.