Advanced Guide to VA Compensation or PensionPrinter Friendly Version

Advanced Guide to VA Compensation or Pension

Not a guide for the faint of heart or for those operating heavy machinery. This guide to veterans benefits provides the detailed knowledge requisite to advocate for VA compensation and pension benefits.

1. What's a VA Claim?

1.1. Elements of a Claim

A claim is "a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit."  Hillyard v. Shinseki, 24 Vet. App. 343, 355 (2011) (citing 38 C.F.R. § 3.1).  For initial claims, 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."  38 C.F.R. § 3.150(a); 38 U.S.C. § 5101(a).  Subsequent applications for additional claims or increases do not require use of the form.  The law is clear for initial claims, however, that only the approved VA form (currently VA Form 21-526) is acceptable as a formal application for compensation or pension benefits.  Whatever the means, the essential elements for any claim, whether formal or informal, are:


(1)   an intent to apply for benefits;


(2)   an identification of the benefits sought; and


(3)   a communication in writing.


Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see also MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have an intent to file a claim for VA benefits); Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999) (noting that even an informal claim must be in writing); Brannon v. West, 12 Vet. App. 32, 35 (1998).


A claimant "[does] not file a claim to receive benefits only for a particular diagnosis, but for the affliction his . . . condition, whatever that is, causes him."  Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009).  Consequently, VA "should construe a claim based on the reasonable expectations of the non-expert, self-represented claimant and the evidence developed in processing that claim," taking into consideration "the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim."  Id.  VA commits error "when it fail[s] to weigh and assess the nature of the current condition the appellant suffer[s] when determining the breadth of the claim before it."  Id. at 6.


A "claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary."  38 U.S.C. § 5107(a).  Further, VA has no duty to provide notice to claimants to file claims for service connection, and a claimant is bound by governing regulations.  38 C.F.R. § 3.400; see Morris v. Derwinski, 1 Vet. App. 260, 265 (1991) ("[R]egulations are binding on all who seek to come within their sphere, 'regardless of actual knowledge of what is in the [r]egulations or of the hardship resulting from innocent ignorance.'" (quoting Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 385 (1947))).  "The Supreme Court has held that everyone dealing with the Government is charged with knowledge of federal statutes and lawfully promulgated agency regulations."  Id. (citing Fed. Crop Ins. Corp., 332 U.S. at 385).


VA must review all communications in the record that may be interpreted as formal or informal claims and consider whether such communications, in the context of the entire record, reasonably raise a claim for benefits.  See Criswell v. Nicholson, 20 Vet. App. 501, 503-04 (2006) ("[W]here there can be found no intent to apply for VA benefits, a claim for entitlement to such benefits has not been reasonably raised."); Brannon v. West, 12 Vet. App. 32, 35 (1998).  VA is required to address every issue reasonably raised from a liberal reading of the documents or oral testimony submitted prior to the decision and where such review reasonably reveals that the claimant is seeking a particular benefit, VA is required to adjudicate the issue of entitlement to such a benefit.  Dingess v. Nicholson, 19 Vet. App. 473, 498 (2006). 

1.2. Informal Claims

Any written communication from a claimant that indicates an intent to apply for an identified benefit may be considered an informal claim. See Norris v. West, 12 Vet. App. 413, 421 (1999); 38 C.F.R. § 3.155(a).  Even an informal claim for benefits must be in writing.  Rodriguez v. West, 189 F.3d 1351, 1353 (Fed.Cir.1999); Criswell v. Nicholson, 20 Vet. App. 501, 503 (2006) ("[I]ntent to apply for benefits is an essential element of any claim, whether formal or informal, ... the intent must be communicated in writing.").  There are three requirements that must be satisfied if the Board is to find that an informal claim has been filed.  There must be (1) a communication in writing that (2) expresses an intent to apply for benefits, and (3) identifies the benefits sought.  See Brokowski, 23 Vet. App. 79, 84 (2009); 38 C.F.R. § 3.155(a). 


Moreover, in identifying the benefit sought, the Court has stated that although VA "has no duty to read the mind of the claimant" and VA "should construe a claim based on the reasonable expectations of the non-expert, self-represented claimant and the evidence developed in processing the claim."  Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009).  Thus, VA must consider claims that may be "reasonably encompassed by several factors including:  the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or the Secretary obtains in support of the claim."  Id.  Accordingly, unless the evidence of record demonstrates the claimant's intent to seek benefits for a particular disability, the mere existence of medical evidence referencing the disability does not raise an informal claim for such benefits.  See Criswell v. Nicholson, 20 Vet. App. 501, 503–04 (2006). 


A VA medical report can qualify as an informal claim when ... a claimant's formal claim for compensation has already been allowed, receipt of ... a VA report of examination will be accepted as an informal claim filed on the date of the examination."  38 C.F.R. § 3.157(b); Servello v. Derwinski, 3 Vet. App. 196, 198, 200 (1992); Norris v. West, 12 Vet. App. 413 (1999).  The Board's determination of whether an informal claim has been filed is a mixed question of law and fact subject to review by this Court under the deferential "arbitrary" and "capricious" standard prescribed in 38 U.S.C. § 7261(a)(3)(A).  Westberry v. West, 12 Vet. App. 510, 513 (1999); see also Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004) (remanding for a factual inquiry into "whether the [Board], as required by Roberson, sympathetically read [the veteran's] filings prior to [the assigned effective date] in determining whether [the veteran] made an informal claim"); Beverly v. Nicholson, 19 Vet. App. 394, 405 (2005) ("the question of whether a sympathetic reading of prior filings raises an informal claim for benefits is essentially a factual inquiry").  


In addition, certain medical records demonstrating a worsening in a veteran's disability that is already service connected may constitute an informal claim for an increased disability rating for that disability.  38 C.F.R. § 3.157(b); see Massie v. Shinseki, 25 Vet. App. 123, 131-32 (2011) (discussing the requirements of § 3.157(b)).  A medical report will be considered an informal claim only "when such report [] relate[s] to examination or treatment of a disability for which service-connection has previously been established."  MacPhee, 459 F.3d at 1328 (quoting 38 C.F.R. § 3.157(b)(1)).  The determination of whether an informal claim has been filed is a substantially factual determination that the Court reviews under the "clearly erroneous" standard of review.  Brokowski, 23 Vet. App. at 85; see 38 U.S.C. § 7261(a)(4); Ellington v. Nicholson, 22 Vet. App. 141, 144 (2007), aff'd, 541 F.3d 1364 (Fed. Cir. 2008).  Because medical records documenting symptoms alone cannot, as a matter of law, raise initial claims for VA benefits for conditions characterized by symptoms, VA is not obligated to consider this possibility.  Criswell, 20 Vet. App. at 503-04; see also 38 U.S.C. § 7104(d)(1) (requiring VA to consider only the "material issues of . . . law presented on the record").


The Court has determined that "whether a sympathetic reading of prior filings raises an informal claim for benefits is essentially a factual inquiry."  Beverly v. Nicholson, 19 Vet. App. 394, 405 (2005) (citing Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004)). The Board's determination of the actual date an informal claim was filed is also a factual finding subject to review by this Court under the "clearly erroneous" standard.  See 38 U.S.C. § 7261(a)(4); Lalonde v. West, 12 Vet. App. 377, 380 (1999) (citing Stewart v. Brown, 10 Vet. App. 15, 17 (1997); KL v. Brown, 5 Vet. App. 205, 207 (1993); Quarles v. Derwinski, 3 Vet. App. 129, 135 (1992)); Nitsch v. Nicholson, 23 Vet. App. 504 (2007).

1.3. Inferred Claims

An "inferred" claim is one not specifically identified by a claimant, but supported by the evidence.  Once a claim is received, VA has a duty to review the claim and the C-file supporting documents, and oral testimony in a liberal manner to identify and adjudicate all reasonably raised claims, even if a specific claim is not raised by the appellant.  See Shockley v. West, 11 Vet. App. 208, 214 (1998); see also Collier v. Derwinski, 2 Vet. App. 247, 251 (1992) (holding that although the appellant had not filed the specific form asking for individual unemployability, an informal claim was raised because he had continually stated he was unable to work due to his service-connected mental disorder).  This is discussed elsewhere in this Knowledge Book.  Claimants should not rely on this duty and should always identify all the claims he or she believes are supported by the evidence.

2. Obtaining a Decision

2.1. Obtaining a Decision

A claim for benefits, whether formal or informal, remains pending until it is finally adjudicated ("rated").  Ingram v. Nicholson, 21 Vet. App. 232 (2007); 38 C.F.R. § 3.160(c); see John Fussell & Jonathan Hager, The Evolution of the Pending Claim Doctrine, 2 VETERANS L. REV. 145, 164-69 (2010).  A "pending claim" is "[a]n application, formal or informal, which has not been finally adjudicated."  38 C.F.R. § 3.160(c).  "Consistent with this regulation . . . [the] Court has held that a claim remains pending – even for years – if the Secretary fails to act on a claim before him."  Ingram, 21 Vet. App. at 240.  

3. VA Award Processing

3.1. Rating

Generally, all disabilities, including those arising from a single disease entity, are to be rated separately, and then all ratings are to be combined.  38 C.F.R. § 4.25; Esteban v. Brown, 6 Vet. App. 259, 261 (1994).  However, "[t]he rating schedule may not be employed as a vehicle for compensating a claimant twice (or more) for the same symptomatology."  Brady v. Brown, 4 Vet. App. 203, 206 (1993).  To rate a disability twice or more "would overcompensate a claimant for the actual impairment of his earning capacity" and would constitute the pyramiding of disability ratings, prohibited by 38 C.F.R. § 4.14; Brady, 4 Vet. App. at 206.  Such evaluation of the "same disability" or the "same manifestation under different diagnoses is to be avoided."  38 C.F.R. § 4.14. 


In other words, if a veteran has been diagnosed with more than one disorder and various DCs are at issue, separate disability ratings may not be used if the various DCs are duplicative of each other or involve overlapping symptomatology.  On the other hand, if the DCs at issue involve separate and distinct symptomatology, the veteran may be entitled to have his multiple disorders rated under the various DCs.  See Esteban, 6 Vet. App. at 261 (holding that because none of the symptomatology for appellant's three conditions was overlapping or duplicative, the appellant was entitled to separate ratings for each condition).  VA's assignment of a disability rating is a finding of fact that the Court reviews under the "clearly erroneous" standard of review. Johnston v. Brown, 10 Vet. App. 80, 84 (1997).


VA regulations state that "where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned."  38 C.F.R. § 4.7.  The regulations also caution that "it is not expected . . . that all cases will show all the findings specified in the [applicable DC]."  38 C.F.R. § 4.21.  In Mauerhan, the Court held that the symptoms listed in DC 9411 are "not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating."  16 Vet. App. at 442.  The Court concluded that "any suggesting that the Board was required, in complying with the regulation, to find the presence of all, most, or even some, of the enumerated symptoms is unsupported by a reading of the plain language of the regulation."  Id.  Therefore, the Board's consideration of the evidence in assigning a disability is "not restricted to the symptoms provided in the diagnostic code."  Id. at 443.  The assignment of a disability rating is a factual finding that the Court reviews under the "clearly erroneous" standard of review.  Johnston v. Brown, 10 Vet. App. 80, 84 (1997). 


The Court may set aside the Board's selection of a diagnostic code only if such selection is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."  38 U.S.C. § 7261(a)(3)(A); Butts v. Brown, 5 Vet. App. 532, 539 (1993) (en banc).  When a veteran is found to have a service-connected disability that does not fall under an existing diagnostic code, the unlisted condition may be rated "under a closely related disease or injury in which not only the functions affected, but [also] the anatomical localization and symptomatology[,] are closely analogous."  38 C.F.R. § 4.20.  The Board must provide an adequate statement of reasons or bases for its selection of a diagnostic code.  See 38 U.S.C. § 7104(d)(1); Suttman v. Brown, 5 Vet. App. 127, 133 (1993); Lendenmann v. Principi, 3 Vet. App. 345, 351 (1992).  The Board's statement is adequate if it enables a claimant to understand the precise basis for the Board's decision and facilitates review in this Court.  Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).


In DeLuca v. Brown, the Court held that 38 C.F.R. sections 4.40 and 4.45 require that the disabling effect of painful motion must be considered when rating joint disabilities.  8 Vet. App. 202, 205-206 (1995).  Pursuant to section 4.40, "[d]isability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance."  38 C.F.R. § 4.40. Further, under section 4.40, functional loss "may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled."  With regard to the joints, section 4.45 provides that "the factors of disability reside in reductions of their normal excursion of movements in different planes."  38 C.F.R. § 4.45.

3.2. Combined Ratings

Pursuant to statutory authority under 38 U.S.C. section 1155, generally each service-connected disability arising from a single disease entity is to be rated separately, and the ratings combined in accordance with the combined ratings table contained in 38 C.F.R. section 4.25, unless otherwise provided by the Secretary.  See Esteban, 6 Vet. App. 259, 261 (1994); see also 38 U.S.C. § 1157 (providing the Secretary authority to "provide for combined ratings").  The purpose of the combined ratings is precisely to assess the efficiency of the individual as affected by several disabling conditions.  See 38 C.F.R. § 4.25 ("Table I, Combined Ratings Table, results from the consideration of the efficiency of the individual as affected first by the most disabling condition, then by the less disabling condition").  Roper v. Nicholson, 20 Vet. App. 173, 179 (2006) aff'd, 240 F. App'x 422 (Fed. Cir. 2007).


The Secretary has prescribed a table for combined ratings in 38 C.F.R. section 4.25.  The Court lacks jurisdiction to review that schedule as adopted by the Secretary.  See 38 U.S.C. §§ 1155, 7252(b).  Pursuant to section 4.25, combined disability ratings are calculated by adding the highest disability rating to an adjusted rating for the less severe disability.  This adjusted value is computed by first subtracting the highest disability rating from 100%.  The value of the lower disability rating, as determined by the RO, is then expressed as a percentage of the remainder after completing the computation just described.  The combined value of the highest disability rating and the adjusted rating will then be converted to the nearest number divisible by ten.  38 C.F.R. § 4.25; Tumaning v. Brown, 4 Vet. App. 160, 161 (1993).

3.3. Anti-Pyramiding

Except as otherwise provided in the rating schedule, all disabilities, including those arising from a single disease entity, are to be rated separately, and then all ratings are to be combined pursuant to 38 C.F.R. § 4.25.  One exception provided for is the anti-pyramiding provision of 38 C.F.R. § 4.14, which states that evaluation of the "same disability" or the "same manifestation" under various diagnoses is to be avoided.  The Court has interpreted 38 U.S.C. § 1155 as implicitly containing the concept that "the rating schedule may not be employed as a vehicle for compensating a claimant twice (or more) for the same symptomatology; such a result would overcompensate the claimant for the actual impairment of his earning capacity" and would constitute pyramiding.  Brady v. Brown, 4 Vet. App. 206 (1993).  

When two diagnoses, one organic and the other psychological or psychoneurotic, are presented covering the organic and psychiatric aspects of a single disability entity, only one percentage rating will be assigned under the appropriate diagnostic code determined by the rating board to represent the major degree of disability.

38 C.F.R. § 4.132 (emphasis added.)  

In Fanning v. Brown, 4 Vet. App. 225 (1993), the Court reaffirmed its reasoning in Brady that pyramiding of disabilities is to be avoided pursuant to 38 U.S.C. section 1155 and 38 C.F.R. section 4.14.  In Fanning, the Court, after stating that it is possible for a veteran to have separate and distinct manifestations from the same injury permitting two different disability ratings, remanded the matter to the BVA because it had failed to state "reasons or bases" for denying the separate ratings due to pyramiding.  Id.; see 38 U.S.C. § 7104(d)(1); Gilbert v. Derwinski, 1 Vet. App. 49, 56–57 (1990); Esteban v. Brown, 6 Vet. App. 259, 261 (1994).

Because separate disability ratings are permitted when the symptomatology and manifestations compensated under the DC are not duplicative or overlapping, the Board must specifically consider whether an appellant is entitled to be rated separately, or consider under 38 C.F.R. section 4.14 which of the potentially applicable DCs is more appropriate in the case.  See Esteban v. Brown, 6 Vet. App. 259, 262 (1994) (because none of the symptomatology for appellant's three conditions in question was overlapping or duplicative, the appellant was entitled to separate disability ratings for each condition); see also Brady v. Brown, 4 Vet. App. 203, 206 (1993) (the purpose of the anti-pyramiding provision is to prevent the rating schedule from being used as a vehicle for overcompensating a claimant multiple times for the same symptomatology); 38 C.F.R. § 4.14 ("The evaluation of the same disability under various diagnoses is to be avoided.").

3.4. Extra-Schedular Rating

VA regulations provide for referring a case for extraschedular consideration when a claimant demonstrates an "exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of regular schedular standards."  38 C.F.R. § 3.321(b)(1).  Consideration of referral for an extraschedular rating must begin with "a comparison between the level of severity and symptomatology of the claimant's service-connected disability [and] the established criteria found in the rating schedule for that disability."  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  VA must evaluate whether "the rating schedule is inadequate to evaluate a claimant's disability picture."  Id. at 116.  The disability picture includes all of a claimant's service-connected disabilities.  See 38 C.F.R. § 3.321(b)(1) (goal of extraschedular consideration is to arrive at "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities").


The award of an extraschedular disability rating is the result of a three-step inquiry the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Services.  Thun, 22 Vet. App. at 115.  The first step is to compare the level of severity and symptomatology of the appellant's disability with the established criteria in the rating schedule.  Id.  If these criteria "reasonably describe the claimant's disability level and symptomatology" then the regular schedular rating system is adequate and extraschedular referral is not warranted.  Id


If the rating schedule does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then "the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors," such as "marked interference with employment" or "frequent periods of hospitalization."  38 C.F.R. § 3.321(b)(1).  When an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture, then the case must be referred to the Undersecretary for Benefits or the director of the Compensation and Pension Service to complete the third step which is to determine whether to assign an extraschedular disability rating in order to "accord justice."  Thun, 22 Vet. App. at 116; 38 C.F.R. § 3.321(b)(1).  


The Board must consider referral for an extraschedular rating when either a claimant or the evidence of record suggests that a schedular rating may be inadequate.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).  "The governing norm in these exceptional cases is:  A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards."  38 C.F.R. § 3.321(b).  The effects of medications for service-connected conditions can warrant an extraschedular rating referral. Fisher v. Principi, 4 Vet. App. 57 (1993).  Where the Board did not address whether referral for extraschedular consideration was warranted, the Court's review is "limited to whether the evidence of record sufficiently raises the possibility that this regulation is applicable, such that the Board was required to discuss whether referral was warranted [under section 3.321(b)(1)]."  Barringer v. Peake, 22 Vet. App. 242, 245 (2009).

3.5. Staged Ratings

VA has the authority to grant staged ratings, which are "separate ratings . . . for separate periods of time based on facts found."  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  In cases where staged ratings are appropriate, the Secretary must consider all of "the evidence of record from the time of the veteran's application."  Id. at 127.  Staged ratings apply for both initial ratings and claims for increased disability ratings.  Hart v. Mansfield, 21 Vet. App. 505, 209 (2007).  The Board's determination of the appropriate degree of disability under the rating code is a finding of fact subject to the "clearly erroneous" standard of review.  38 U.S.C. § 7261(a)(4); see Smallwood v. Brown, 10 Vet. App. 93, 97 (1997).


A claim will not become final if VA has failed to act upon the claim, or has failed to notify the claimant of the denial of his claim or of his right to appeal an adverse decision.  Cook v. Principi, 318 F.3d 1334, 1340 (Fed. Cir. 2002) (en banc).  If a claim is left pending, it can be addressed when a subsequent claim for the same disability is adjudicated by VA, in which case the effective date for any award of benefits will be the effective date applicable to the original claim.  Adams v. Shinseki, 568 F.3d 956 (Fed. Cir. 2009) (same); Williams v. Peake, 521 F.3d 1348 (Fed. Cir. 2008) (adopting the framework used by the Court in Ingram); Ingram, 21 Vet. App. at 243.


It is well established that "[a] claim for benefits, whether formal or informal, remains pending until it is finally adjudicated."  Adams v. Shinseki, 568 F.3d 956, 960 (Fed. Cir. 2009) (citing 38 C.F.R. § 3.160(c)). However, pursuant to the "implicit denial" rule, "in certain circumstances, a claim for benefits will be deemed to have been denied, and thus finally adjudicated, even if the [] VA did not expressly address that claim in its decision."  Adams, 568 F.3d at 961.  A claim has been implicitly denied when a regional office decision "discusses a claim in terms sufficient to put the claimant on notice that it was being considered and rejected."  Id. at 963 (quoting Ingram v. Nicholson, 21 Vet. App. 232, 255 (2007)).  Relevant factors in determining whether a claim has been implicitly denied include the timing and relatedness of the implicitly and explicitly denied claims.  Id. at 963-64.  See 38 C.F.R. § 3.156(a) ("New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim."); see also Suaviso v. Nicholson, 19 Vet. App. 532, 533-34 (2006) (whether a claimant has submitted new and material evidence generally is reviewed under the "clearly erroneous" standard of review); Gilbert v. Derwinski, 1 Vet. App. 49, 52 (1990) ("A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948))). 

3.6. Effective Date

The determination of the effective date for an original claim or a reopened claim is governed by 38 U.S.C. section 5110(a), which provides: "Unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim [or] a claim reopened after final adjudication . . . shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor."  The implementing regulation similarly states that the effective date shall be the date of receipt of the claim or the date entitlement arose, whichever is later, unless the claim is received within one year after separation from service.  See 38 C.F.R. § 3.400.  "Generally, effective dates of compensation awards are attached to the date of receipt of the application for benefits, and no earlier."  Sharp v. Shinseki, 23 Vet. App. 267, 273 (2009) (citing 38 U.S.C. § 5110(a)).  Significantly, "the effective date of an award of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA."  Lalonde v. West, 12 Vet. App. 377, 382 (1999); see Brannon v. West, 12 Vet. App. 32, 35 (1998) (the "mere presence of medical evidence does not establish the intent on the part of a veteran to seek service connection for a condition.").


The effective date may also be the date on which entitlement to the benefit arose, if later than the date of the claim.  38 C.F.R. § 3.400(o).  A challenge to a decision assigning an effective date with which a claimant disagrees may be made through a direct appeal of the decision, commencing with the timely filing of a Notice of Disagreement.  38 U.S.C. § 7105.  The NOD must be in writing and filed within one year "from the date of mailing of notice of the result of initial review or determination."  38 U.S.C. § 7105(b)(1).  Rowell v. Principi, 4 Vet. App. 9, 17 (1993); Cuevas v. Principi, 3 Vet. App. 542, 546 (1992).  Alternatively, if the decision assigning an effective date has become final, a claimant may only pursue one of the statutory exceptions to challenge the finality of that decision.  See DiCarlo v. Nicholson, 20 Vet. App. 52, 56-57 (2006) (discussing the types of collateral attack authorized to challenge a final decision by the Secretary); see also Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002) (en banc) (same).


However, in Rudd v. Nicholson, 20 Vet. App. 296, 299 (2006), the Court held that claimants may not properly file, and VA has no authority to adjudicate, a freestanding earlier-effective-date claim in an attempt to overcome the finality of an unappealed RO decision.  The Court reasoned that to allow such claims would vitiate the rule of finality.  Id.  Although there are numerous exceptions to the rule of finality and application of res judicata within the VA adjudication system, a freestanding claim for an earlier effective date is not one of the recognized statutory exceptions to finality.  See DeLisio v. Shinseki, 25 Vet. App. 45, 51 ("[A]n effective date generally can be no earlier than the date of the claim."); Canady v. Nicholson, 20 Vet. App. 393, 398 (2006) (holding that a "proper effective date is a finding of fact" reviewed under the "clearly erroneous" standard).


A claimant may establish an effective date earlier than the date of the claim if the claimant is able to show an increase in disability in the one-year period preceding the claim.  Hart v. Mansfield, 21 Vet. App. 505, 509 (2007) ("When a claim for an increased rating is granted, the effective date assigned may be up to one year prior to the date that the application for increase was received if it is factually ascertainable that an increase in disability had occurred within that timeframe."); Dalton v. Nicholson, 21 Vet. App. 23, 34 (2007) ("Board is required to search the record to determine whether it is factually ascertainable that in the one year prior to the application there was an increase in disability."); Harper v. Brown, 10 Vet. App. 125, 126-27 (1997) (noting that the general rule applies unless it is factually ascertainable that the increase occurred within the year preceding the filing of the claim); see also Scott v. Brown, 7 Vet. App. 184, 189 (1994) (under the terms of section 5110(b)(2), the effective date is either the date of the claim or "some date in the preceding year if it were ascertainable that the disability had increased in severity during that time").


In other words, the actual increase in disability must have occurred during the one-year period immediately preceding the date of the claim; any evidence demonstrating an increase earlier than the one-year period is not a basis for an effective date earlier than the date of the claim.  The Board's determination of the proper effective date for an award of VA benefits is a finding of fact reviewed under the "clearly erroneous" standard of review set forth in 38 U.S.C. § 7261(a)(4).


There are only two ways to establish an earlier effective date after a decision has become final:  (1) by establishing a "Clear and Unmistakable Error" was made or (2) by submitting official service department records that existed, but were not considered, in a decision.  See 38 U.S.C. §§ 5109A, 7111; 38 C.F.R. §§ 3.156(c); 20.1403.  As discussed elsewhere in this Knowledge Book, CUE is a "very specific and rare kind of error" that has special pleading requirements.  Section 3.156(c), however, is fairly straightforward.  If VA or a claimant discovers a service department record, such as a service record, service medical record, or unit report or log, and it is relevant to a previous decision, VA must reconsider that decision.  If reconsideration of the claim with the newly found record results in an award, the effective date of that award is the date that the originally denied claim was submitted, no matter how far back.  38 C.F.R. § 3.156(c)(3).  

4. Benefit Payments

4.1. Benefit Payments

Under the VA statutory scheme, disability compensation benefits are paid to veterans for disabilities that were incurred or aggravated in the military.  See 38 U.S.C. §§ 1110, 1131.  Congress has enacted a comprehensive statutory scheme for the payment of veterans benefits.  However, there is no statute or regulation that authorizes the Secretary to pay interest on past due benefits under any circumstances, to include the exercise of his equitable powers.  Smith v. Gober, 14 Vet. App. 227, 231-32 (2000); aff'd sub nom. Smith v. Principi, 281 F.3d 1384 (Fed. Cir. 2002)


If a claimant in receipt of compensation benefits is incarcerated for conviction of a felony, these payments of compensation are subject to reduction.  38 U.S.C. § 5313(a); 38 C.F.R. § 3.665(a).  "Compensation" is defined, in relevant part, as a "monthly payment made by the Secretary to a veteran because of [a] service-connected disability."  38 U.S.C § 101(13).  The overall purpose of the disability compensation scheme is to compensate veterans "when they have, in honorable service to their nation, suffered a loss that is reflected in the decreased ability to earn a living for themselves and their families." Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991).  Ferenc v. Nicholson, 20 Vet. App. 58, 61-62 (2006).  Benefits may still be apportioned under the same terms and conditions as other benefit payments.  38 U.S.C. § 5313(b).

5. Retroactive Benefits

5.1. Retroactive Benefits

The term "periodic monetary benefits" in section 5121(a) excludes one-time lump-sum payments, such as a payment for specially adapted housing.  See Pappalardo v. Brown, 6 Vet. App. 63, 65 (1993) (holding that payments for specially adapted housing are not "periodic monetary benefits" because such benefits may be paid only once).  "Periodic monetary benefits" also do not include benefits that may be paid more than once, but are not paid at regular intervals, such as automobile purchase payments.  See Gillis v. West, 11 Vet. App. 441, 442-43 (1998) (holding that automobile purchase payments cannot be claimed under section 5121 because, although such benefits may be paid more than once, payment is not made periodically, meaning at regular intervals).  However, retroactive awards of disability compensation benefits are considered "periodic monetary benefits," even though the actual payment of retroactive benefits is made in a one-time lump-sum payment, because the benefits that the claimant had been entitled to receive during his or her lifetime would have been paid monthly.  Wilkes v. Principi, 16 Vet. App. 237, 241-42 (2002); Nolan v. Nicholson, 20 Vet. App. 340, 347-48 (2006).  Additionally, VA regulation § 3.114(a) provides:


(a) Effective date of award. Where pension, compensation, [or DIC], ... is awarded or increased pursuant to a liberalizing law, or a liberalizing VA issue approved by the Secretary or by the Secretary's direction, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. Where pension, compensation, [or DIC], ... is awarded or increased pursuant to a liberalizing law or VA issue which became effective on or after the date of its enactment or issuance, in order for a claimant to be eligible for retroactive payment under the provisions of this paragraph the evidence must show that the claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement.


(1)   If a claim is reviewed on the initiative of VA within 1 year from the effective date of the law or VA issue, or at the request of a claimant received within 1 year from that date, benefits may be authorized from the effective date of the law or VA issue.


(2)   If a claim is reviewed on the initiative of VA more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of administrative determination of entitlement.


(3)   If a claim is reviewed at the request of the claimant more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of receipt of such request.


38 C.F.R. §§ 3.114(a)(1), (a)(2), (a)(3); Bonner v. Nicholson, 19 Vet. App. 188, 192-93 (2005) aff'd, 497 F.3d 1323 (Fed. Cir. 2007). 


38 U.S.C. section 1114 sets forth the compensation rates for all awards of disability compensation, whether based on a new claim or a claim retroactively granted on the basis of CUE in a prior VA decision.  Nothing in the statute provides for payment of a higher rate when the payments are retroactive, and the Court cannot find any intent for payment at the higher rate without a clear, explicit waiver of the Government's sovereign immunity from the payment of interest.  38 U.S.C § 1114; see also Smith v. Principi, 281 F.3d 1384, 1387 (Fed. Cir. 2002) ("waiver of the no-interest rule must be express").  Further, the suggestion that section 1114 requires that an award of retroactive benefits must be calculated at the rate in effect at the time of payment was expressly rejected by the Federal Circuit in Sandstrom v. Principi, 358 F.3d 1376, 1380 (Fed. Cir. 2004). 

5.2. Accrued Benefits

Accrued benefits are "periodic monetary benefits ... to which an individual was entitled at death under existing ratings or decisions or those based on evidence in the file at date of death ... and due and unpaid."  38 U.S.C. § 5121(a); see also 38 C.F.R. § 3.1000.  Eligibility for accrued benefits depends upon whether the veteran had a claim pending at the time of his or her death or was otherwise entitled to benefits.  Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998); see also Zevalkink v. Brown, 102 F.3d 1236, 1241 (Fed. Cir. 1996) ("[A]n accrued benefits claim is derivative of the veteran's claim for service connection, i.e., the claimant's entitlement is based on the veteran's entitlement.").  In determining entitlement to accrued benefits, VA must look at the "evidence that was either physically or constructively in the veteran's file at the time of his death."  Ralston v. West, 13 Vet. App. 108, 113 (1999); see 38 U.S.C. § 5121(a); Hayes v. Brown, 4 Vet. App. 353, 360-61 (1993) (in some cases, documents may be constructively in record and must be considered for purposes of accrued benefits).


A veteran's surviving spouse, children, and dependent parents may be entitled to accrued benefits which are "periodic monetary benefits ... to which an individual was entitled at death under existing ratings or decisions or those based on evidence in the file at date of death."  38 U.S.C. § 5121(a).  A claim for accrued benefits "must be filed within one year after the date of [the] veteran's death."  38 U.S.C. § 5121(c).  Also, a claim for accrued benefits derives from the deceased veteran's claim for benefits, and a surviving spouse, child, or dependent parent may not reopen or reargue a claim because "without the veteran having a claim pending at time of death, the surviving spouse has no claim upon which to derive his or her own application."  Jones v. West, 136 F.3d 1296, 1300 (Fed. Cir. 1998) (citing Zevalkink v. Brown, 102 F.3d 1236 (Fed. Cir. 1996)).


Any claim for accrued benefits is contingent upon "the veteran having a claim pending at time of death."  Jones, 136 F.3d at 1300.  A "survivor has no standing to request review of a decision affecting the disability benefits of a veteran on the ground of [clear and unmistakable error]" because 38 U.S.C. section 5109A, the statute pertaining to such requests for revision, does not "provide[ ] for another person, even a survivor, to seek correction of a decision on a veteran's claim."  Haines v. West, 154 F.3d 1298, 1301 (Fed. Cir. 1998).


VA regulations explicitly define the phrase "[c]laim for VA benefits pending on the date of death" to include any request for revision of a prior decision on the basis of clear and unmistakable error that was pending at the time of the veteran's death.  38 C.F.R. § 3. 1000(d)(5); see Mallette v. Peake, 337 F. App'x 871, 872 (Fed. Cir. 2008) (per curiam order) (stating that the question of whether a veteran had a claim pending at the time of death is a factual determination); see also 38 U.S.C. § 7261(a)(4) (providing that the Court reviews the Board's findings of fact pursuant to the "clearly erroneous" standard).


Section 5121(a)(2) provides that upon the death of a veteran, payment should be made to the living person first listed:  the "veteran's spouse," "the veteran's children," or "the veteran's dependent parents."  38 U.S.C. § 5121(a)(2).  In order to be eligible for accrued benefits, therefore, the claimant must qualify as a member of one of the statutorily enumerated categories of recipients.  See Burris v. Principi, 15 Vet. App. 348, 352–53 (2001) (concluding that 70-year-old appellant was ineligible for accrued benefits because he did not satisfy statutory definition of "child" in 38 U.S.C. § 101(4)(A), which excludes anyone over age 23 unless they were "permanently incapable of self-support" before attaining age 18); Marlow v. West, 12 Vet. App. 548, 551 (1999) (noting that section 5121(a) "limits qualifying survivors to the deceased veteran's spouse, child ... or dependent parents").  Subsection (a)(5) provides:  "In all other cases, only so much of the accrued benefits may be paid as may be necessary to reimburse the person who bore the expense of last sickness and burial."  38 U.S.C. § 5121(a)(5).   A surviving spouse's estate is not in the class of "persons" designated in 38 U.S.C. § 5121(a)(3) as eligible to receive accrued benefits. See Wilkes v. Principi, 16 Vet. App. 237 (2002) (holding that the nephew of the veteran who was co-executor of the veteran's estate was not eligible to receive accrued benefits).

5.3. Substitution

When an appellant dies during the pendency of an appeal for VA disability compensation, the appropriate remedy is to vacate the appealed Board decision and dismiss the appeal unless there has been an appropriate substitution by a qualified accrued-benefits claimant.  See Padgett v. Nicholson, 473 F.3d 1364, 1366 (Fed. Cir. 2007) (Court not obligated to withdraw decision when party died before decision issued, but after case submitted to Court); Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed. Cir. 1996); Landicho v. Brown, 7 Vet. App. 42, 54 (1994); see also Breedlove v. Shinseki, 24 Vet. App. 7 (2010) (per curiam order) (veteran's chapter 11 disability benefits claim survives the death of the veteran, not for the purpose of providing VA benefits to a veteran, but for purpose of furthering the claim of an eligible accrued-benefits claimant).  Congress indicated in enacting section 5121A, that a veteran's disability benefits claim does not die with the veteran and the accrued-benefits claim by a survivor no longer represents a separate interest that must be separately pursued apart from the veteran's underlying claim for benefits.  Breedlove v. Shinseki, 24 Vet. App. 7, 19-20 (2010).  Since Congress has now created an avenue for an accrued-benefits claimant to continue to pursue a veteran's claim within VA after the veteran's death, the Court will consider substitution, if requested, in all cases pending before the Court regardless of the stage of briefing at the time of a veteran's death.  


An eligible accrued-benefits claimant is "adversely affected" by the appealed Board decision denying a veteran's claim for benefits and has standing to pursue substitution on the veteran's claim because he or she is affected by the VA adjudications on the veteran's claim in the same way the veteran was affected at the time he filed his Notice of Appeal.  38 U.S.C. § 7266(a) ("In order to obtain review by [this Court] of a final decision of the Board ..., a person adversely affected by such decision shall file a notice of appeal").  Breedlove v. Shinseki, 24 Vet. App. 7, 20 (2010).  Nothing in the Court's rules or in controlling caselaw suggests that substitution is limited to only one person.  See U.S. Vet. App. R. 43(a)(2) ("If a party dies ... while a proceeding is pending in the Court, the personal representative of the deceased party's estate or any other appropriate person may, to the extent permitted by law, be substituted as a party on motion by such person."); Cohen, 8 Vet. App. 5, 7 (1995) ("Substitution of the estate or an appropriate survivor is the best method of proceeding in a case such as this, as it has been held that the attorney may not directly claim the fee award.").


If, when a veteran has died while an appeal is pending here, no one seeks substitution or the person seeking substitution is not an eligible accrued-benefits claimant, then Board vacatur and dismissal of the appeal is the appropriate action.  See Munsingwear, 340 U.S. 36, 41, (1950); see also Padgett, 473 F.3d at 1370 ("Absent substitution, we would face the scenario contemplated by Munsingwear."); 38 U.S.C. § 5121(c) ("Applications for accrued benefits must be filed within one year after the date of death.").  This preserves the right of an accrued-benefits claimant to file a claim and have it processed de novo.  Breedlove v. Shinseki, 24 Vet. App. 7, 21 (2010).

6. Disagreeing with a VA Decision

6.1. Notice of Disagreement (NOD)

The Secretary has authority to decide all questions of law and fact necessary to determining the veteran's entitlement to benefits.  38 U.S.C. § 511(a); see Disabled Am. Veterans v. Sec'y of Veterans Affairs, 419 F.3d 1317, 1320 (Fed. Cir. 2005).  Once a decision is issued by a regional office, a claimant has the right to "one review on appeal to the Secretary."  38 U.S.C. § 7104.  A claimant initiates the appeals process by filing a Notice of Disagreement from a regional office decision, which trigger's VA's duty to issue a Statement of the Case.  38 U.S.C. §§ 7105(a), (d)(1).  Only after a Statement of the Case has been issued may a claimant file a Substantive Appeal to the Board.  38 U.S.C. § 7105(d)(1).  


A claimant must file a Notice of Disagreement ("NOD") to initiate appellate review.  38 U.S.C. § 7105(a).  An NOD is "[a] written communication from a claimant . . . expressing dissatisfaction or disagreement with an adjudicative determination by the [RO] and a desire to contest the result."  38 C.F.R. § 20.201; see Gallegos v. Principi, 283 F.3d 1309, 1314 (Fed. Cir. 2002) ("[Section] 20.201 merely states that a veteran['s] NOD must include terms that can be reasonably construed as a desire for appellate review. . . .  Assuming the veteran desires appellate review, meeting the requirement of § 20.201 is not an onerous task."); Crippen v. Brown, 9 Vet. App. 412, 424 (1996) (finding that a statement did not constitute an NOD because it "made no reference to any RO decision with which any disagreement was expressed and did not express an intent to appeal to the [Board]").  Although "special wording is not required, the [NOD] must be in terms which can be reasonably construed as disagreement with [the RO] determination and a desire for appellate review."  38 C.F.R. § 20.201.  There is ample precedent for viewing a VA Form 21-4138 as an NOD and thereby initiating an appeal.  See, e.g., Cuevas, 3 Vet. App. at 545; Isenhart v. Derwinski, 3 Vet. App. 177, 178 (1992).  Whether a particular communication constitutes an NOD is a question of law that the Court reviews de novoPalmer v. Nicholson, 21 Vet. App. 434, 436 (2007) (citing Lennox v. Principi, 353 F.3d 941, 945 (Fed. Cir. 2003)); Beyrle v. Brown, 9 Vet. App. 24, 28 (1996).


An NOD must "be filed within one year from the date of mailing of notice of the result of initial review or determination [and] . . . must be in writing and filed with" the "agency of original jurisdiction (AOJ)."  The AOJ is the VA activity that made the decision, which usually the regional office handling the claim.  38 U.S.C. § 7105(b)(1); 38 C.F.R. § 20.302(a).  The AOJ should be clear from the letterhead of the cover letter or the front page of the rating decision.  


If a qualifying NOD is not filed within the one-year time period, the regional office decision "shall become final and the claim will not thereafter be reopened or allowed, except as may otherwise be provided by regulations not inconsistent with this title."  38 U.S.C. § 7105(c); DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006) ("Except as provided by law, when a case or issue has been decided and an appeal has not been taken within the time prescribed by law, the case is closed, the matter is ended, and no further review is afforded."); Person v. Brown, 5 Vet. App. 449, 450 (1993) (failure to timely appeal an RO decision within the one-year period renders the decision final).


An NOD must indicate "a disagreement with a specific determination."  Ledford v. West, 136 F.3d 776, 780 (Fed. Cir. 1998).  A "broad NOD" "may confer jurisdiction over the entire request for benefits entitlement."  Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000).  "Correspondingly, a narrow or specific NOD may limit the jurisdiction of the reviewing court to the specific elements of the disability request contested in the NOD."  Id.; Ledford, 136 F.3d at 779; see also Brannon v. West, 12 Vet. App. 32, 34-35 (1998) (holding that in the absence of an NOD, the Board and ultimately the Court lack jurisdiction).  "In determining whether a written communication constitutes an NOD, the Court looks at both the actual wording of the communication and the context in which it was written."  Jarvis v. West, 12 Vet. App. 559, 561 (1999) (citing Drenkhahn v. Derwinski, 2 Vet. App. 207, 208 (1992); Stokes v. Derwinski, 1 Vet. App. 201, 203 (1991)).


The Court reviews the Board's determinations regarding notification and timeliness of an NOD under the "clearly erroneous" standard of review.  38 U.S.C. § 7261(a)(4); Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994).  As to the mailing of the RO's decision and notification letter, there is a presumption of regularity under which Government officials are presumed to "have properly discharged their official duties."  Ashley v. Derwinski, 2 Vet. App. 307, 308 (1992).  Although the presumption may be rebutted by clear evidence that the mailing procedures were not regular or were not followed in a particular instance, "[a]n 'assertion of nonreceipt, standing alone, does not rebut the presumption of regularity in VA's mailing process.'"  Clarke v. Nicholson, 21 Vet. App. 130, 133 (2007) (quoting Jones v. West, 12 Vet. App. 98,102 (1998)).


There is a provision by which the Board can grant a claimant an extension of time to file an NOD "for good cause shown."  38 U.S.C. § 3.109(b).  The grant or denial of an extension is committed to the Board's discretion; the Court reviews the Board's decisions under section 3.109(b) for abuse of discretion.  Morgan v. Principi, 16 Vet. App. 20, 25 (2002); Corry v. Derwinski, 3 Vet. App. 231, 235 (1992).


In simultaneously contested claims, such as claims for an apportionment, the NOD "from the person adversely affected must be filed within 60 days from the date of mailing of the notification of the determination to him or her; otherwise, that determination will become final."  38 C.F.R. § 20.501(a); 38 U.S.C. § 7105A(a); cf. 38 U.S.C. § 7105(b)(1) ("Except in the case of simultaneously contested claims, notice of disagreement shall be filed within one year from the date of mailing notice of the result of initial review or determination.").  Additionally, for simultaneously contested claims, "[t]he date of mailing of the letter of notification will be presumed to be the same as the date of that letter for purposes of determining whether a Notice of Disagreement has been timely filed."  38 C.F.R. § 20.501(a).  Moreover, the RO "shall promptly notify all parties in interest at the last known address of the action taken," directing attention to the fact that "notice of disagreement will not be entertained unless filed within the sixty day period prescribed by this subsection."  38 U.S.C. § 7105A(a).


Generally, an NOD postmarked before the expiration of the prescribed time period will be accepted as timely.  38 C.F.R. § 20.305(a).  If the postmark is unavailable, it is presumed that any written document required to be "filed within a specified period of time," which includes an NOD, was mailed five days prior to the actual receipt of the document by VA, excluding Saturdays, Sundays, and legal holidays.  38 C.F.R. §§ 20.305(a), (b).  The Board's determination regarding whether an appellant filed a timely NOD is a factual matter that the Court reviews under the "clearly erroneous" standard of review.


A claim remains pending if the Secretary fails to act on it or if he fails to provide the veteran with information or material critical to the appeal.  See Cook v. Principi, 318 F.3d 1334, 1340 (Fed. Cir. 2002) (en banc) (citing Hauck v. Brown, 6 Vet. App. 518 (1994)); Norris v. West, 12 Vet. App. 413, 422 (1999); see Tablazon v. Brown, 8 Vet. App. 359 (1995) (determining that a 1975 regional office decision never became final, because without a Statement of the Case, the appellant was unable to file an appeal to the Board); see also 38 C.F.R. § 3.160(c) (defining a "pending claim" as "[a]n application, formal or informal, which has not been finally adjudicated").

6.2. Finality and Revision of Decisions

Where a claimant does not file a Notice of Disagreement, the benefit decision becomes final.  38 U.S.C. § 7105(c).  When a prior adjudication is final, a claimant may only seek a revision of that decision on the basis of clear and unmistakable error.  38 U.S.C. § 5109A; 38 C.F.R. § 3.105(a) (2009); see also Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002).  In order to properly seek revision of a prior final decision, the appellant must allege either (1) that the correct facts in the record were not before the adjudicator or (2) that the statutory or regulatory provisions in existence at the time were incorrectly applied.  See Damrel v. Brown, 6 Vet. App. 242, 245 (1994); see 38 U.S.C. § 7111 (authorizing revision of Board decisions); Cook, 318 F.3d at 1342 n.2 (noting that, before the enactment of section 7111, final Board decisions were not subject to motions for revision based on CUE).


The only exceptions to the rule of finality are the statutory provisions concerning CUE and the section 3.156(c) regulation described above.  See 38 U.S.C. § 5109A (revision of decisions by the Secretary, including rating decisions, on the grounds of CUE); 38 U.S.C. § 7111 (revision of Board decisions on the grounds of CUE).  Both provisions state that a revision of a prior decision on the basis of CUE has the same effect as if the corrected decision had been made on the date of the prior decision.  The Court has defined CUE as follows:


Either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied .... [CUE is] the sort of error which, had it not been made, would have manifestly changed the outcome ... [an error that is] undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made.


Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc); see also Bustos v. West, 179 F.3d 1378, 1380 (Fed. Cir. 1999) (expressly adopting "manifestly changed the outcome" language in Russell).  In order to constitute CUE, the alleged error must be "based upon the evidence of record at the time of the original decision."  Cook v. Principi, 318 F.3d 1334, 1344 (Fed. Cir. 2002) (en banc).  A claimant alleging CUE must do so "with some degree of specificity."  Pierce v. Principi, 240 F.3d 1348, 1355 (Fed. Cir. 2001).


A challenge to a regional office decision assigning an effective date with which a claimant disagrees may be made through a direct appeal of that decision, beginning with the timely filing of a Notice of Disagreement.  See 38 U.S.C. § 7105(a).  Where a claimant does not file a Notice of Disagreement, the regional office's decision becomes final.  38 U.S.C. § 7105(c).  Once a regional office decision is final, a claimant may attempt to overcome the finality of that decision in one of two ways:  by a request for revision of the decision based on clear and unmistakable error or by a request to reopen based upon new and material evidence.  Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002) (en banc); see 38 U.S.C. § 5109A(a) ("A decision by the Secretary ... is subject to revision on the grounds of clear and unmistakable error.  If evidence establishes the error, the prior decision shall be reversed or revised."); 38 U.S.C. § 5108 ("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 that claim.").


Only a request for revision based on CUE or a newly discovered service record can result in the assignment of an earlier effective date for the award of disability benefits because the effective date for an award based on a claim to reopen can be no earlier than the date on which that claim was received.  38 U.S.C. § 5110(a); see Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005) ("[A]bsent a showing of [clear and unmistakable error, the appellant] cannot receive disability payments for a time frame earlier than the application date of his claim to reopen, even with new evidence supporting an earlier disability date.").  Further, the Court has made it clear that VA cannot adjudicate, a freestanding claim for an earlier effective date because to do so would be to compromise the rule of finality.  Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006).

7. Choosing an Appeal Path

7.1. What Now?

A claimant who has filed an NOD "has right to a review of that decision" by a Decision Review Officer [DRO]."  38 C.F.R. § 3.2600(a).  The reviewer will be an individual "who did not participate in the decision being reviewed" and "will give no deference to the decision being reviewed."  Id.  The "reviewer may reverse or revise (even if disadvantageous to the claimant) prior decisions."  Id. § 3.2600(e).  A DRO review does not limit the appeal rights of a claimant.  Id. § 3.2600(f).


This Court has held that, "where a decision on one issue would have a 'significant impact' upon another, and that impact in turn 'could render any review by this Court of the decision [on the claim] meaningless and a waste of judicial resources,' the two claims are inextricably intertwined."  Henderson v. West, 12 Vet. App. 11, 20 (1998) (quoting Harris v. Derwinski, 1 Vet. App. 180, 183 (1991), overruled on other grounds by Tyrues v. Shinseki, 23 Vet. App. 166 (2009)); see also Smith v. Gober, 236 F.3d 1370, 1372 (Fed. Cir. 2001) (holding that, where the facts underlying two claims are "intimately connected," the interests of judicial economy and of avoiding piecemeal litigation require the claims to be appealed together).

8. Perfecting an Appeal

8.1. Substantive Appeals

If a claimant receives a decision from VA and notice about how to appeal that decision but does not submit a timely Substantive Appeal, the decision becomes final.  See 38 U.S.C. § 7105(d)(3) ("The claimant will be afforded a period of sixty days from the date the statement of the case is mailed to file the formal appeal."); 38 C.F.R. § 20.302(b); see also Morgan v. Principi, 327 F.3d 1357, 1359 (Fed. Cir. 2003) (affirming that the "time limit for filing an appeal is sixty days from the date the statement of the case is mailed to the appellant, or one year from the date the notification of the determination is mailed, whichever is later"); Jamias v. Derwinski, 2 Vet. App. 507, 509 (1992) (rejecting the argument that a claimant had one year from the date of an SOC to file a Substantive Appeal as "inconsistent" with the plain meaning of the statute).


"A substantive appeal consists of a properly completed VA Form 9, "Appeal to Board of Veterans' Appeals," or correspondence containing the necessary information.  38 C.F.R. § 20.202.  An appellant bears burden of demonstrating error on appeal.  Hilkert v. West, 12 Vet. App. 145, 151 (1999) (en banc).  So if the Statement of the Case addressed several issues, the substantive appeal must either indicate that the appeal is being perfected as to all of those issues or must specifically identify the issues appealed.  38 C.F.R. § 20.202.  The Court reviews conclusions of the Board in this area to determine whether they are "arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law."  38 U.S.C. § 7261(a)(3)(A); Foster v. Derwinski, 1 Vet. App. 383, 394 (1991).

9. Board of Veterans Appeals

9.1. The Board of Veterans Appeals (BVA)

When a claimant properly appeals the denial of a claim for benefits from the regional office to the Board of Veterans' Appeals, that appeal remains in appellate status until it is resolved by the Board.  See, e.g., Meyers v. Principi, 16 Vet. App. 228, 235-36 (2002).  "The Board is 'bound in its decisions by the . . . precedent opinions of the chief legal officer of the Department.'"  Hornick v. Shinseki, 24 Vet. App. 50, 52 (2010) (quoting 38 U.S.C. § 7104(c)).

9.2. Reasonably Raised Issues

It is well settled that on appeal the Board has a duty to address all issues reasonably raised either by the appellant or by the contents of the record.  Robinson v. Peake, 21 Vet. App. 545, 552-56 (2008).  In Robinson the Court determined that, because proceedings before VA are nonadversarial, "the Board's obligation to analyze claims goes beyond the arguments explicitly made."  21 Vet. App. 545, 553 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009).  "It is entirely possible that the record might 'indicate' a theory of entitlement, but that a lay appellant might not be sophisticated enough to recognize the theory," meaning that "a theory can be both unknown to the appellant and suggested by the record."  Id. (citing Ingram v. Nicholson, 21 Vet. App. 232, 256–57 (2007)). 


38 U.S.C. section 7104(d) also provides the Board with jurisdiction to review a wide scope of matters by requiring that the Board consider "all material issues of fact and law presented on the record."  There are no qualifying terms requiring the Board to address only material issues or claims that have been previously considered by the regional office.  The only significant statutory limitation on the Board's broad jurisdiction is the claimant's right to "one review on appeal" under section 7104(a). 


But the Federal Circuit has indicated that this limitation is eliminated when the claimant effectively waives additional review.  Specifically, in Disabled American Veterans v. Secretary of Veterans Affairs, the Federal Circuit held that section 7104(a) creates a procedural right that entitles the claimant "to appeal an adverse [agency-of-original-jurisdiction] decision to the Secretary of Veterans Affairs." 327 F.3d at 1342.  The Federal Circuit has also held that the claimant may waive this right.  Id. at 1341-42.


On the other hand, the Board is not required "to assume the impossible task of inventing and rejecting every conceivable argument in order to produce a valid decision."  Id.  Although the Board must interpret a claimant's submissions broadly, it is not required to conjure up issues that were not raised by the claimant.  Brokowski v. Shinseki, 23 Vet. App. 79, 85 (2009).  Accordingly, "[w]here a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory."  Robinson, 557 F.3d at 1361.  In other words, "[t]he Board commits error only in failing to discuss a theory of entitlement that was raised either by the appellant or by the evidence of record."  Robinson, 21 Vet. App. at 553; but see Maggitt v. West, 202 F.3d 1370, 1377-78 (Fed. Cir. 2000) (holding that the Court may exercise its discretion and refuse to consider arguments or issues first raised on appeal to the Court on the ground that the appellant failed to exhaust his or her administrative remedies).  "The question of the precise location of the line between the issues fairly raised by the appellant's pleadings and the record and those that are not must be based on the record in the case at hand; therefore, it is an essentially factual question."  Robinson, 21 Vet. App. at 553.

9.3. Reasons and Bases of BVA Determinations

The Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate review in the Court.  38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet. App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990).  To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).  A remand is the appropriate remedy "where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate."  Tucker v. West, 11 Vet. App. 369, 374 (1998).


It is the Board's duty to analyze and discuss evidence supporting its conclusion and to provide reasons for its rejection of evidence favorable to the claimant.  See Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 156 (1991) ("'[L]itigating positions' are not entitled to deference when they are merely appellate counsel's 'post hoc rationalizations' for agency action, advanced for the first time in the reviewing court."); see also Thompson v. Gober, 14 Vet. App. 187, 188 (2000) (Board must provide an adequate statement of reasons or bases "for its rejection of any material evidence favorable to the claimant").  The Board's recitation of the lay and medical evidence in the pages preceding its conclusion is not a sufficient surrogate for an account of the evidence the Board found persuasive or unpersuasive.  Dennis v. Nicholson, 21 Vet. App. 18, 22 (2007).


The Court "has long held that merely listing evidence before stating a conclusion does not constitute an adequate statement of reasons or bases."  Dennis, 21 Vet. App. at 22 (citing Abernathy v. Principi, 3 Vet. App. 461, 465 (1992)).  Though the Board is not required to discuss all evidence in the record, it must address evidence that appears on its face to be relevant, material, and favorable to the appellant's claim.  See Thompson v. Gober, 14 Vet. App. 187, 188 (2000) (stating that the Board must provide an adequate statement of reasons or bases "for its rejection of any material evidence favorable to the claimant"); see also Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (finding that the Board is not required to discuss all evidence of record but must discuss relevant evidence); Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991) (stating that the Board must discuss, inter alia, all relevant evidence); Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005) (it is the Board's duty, as factfinder, to determine the credibility and weight to be given to the evidence); Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that the Board is responsible for assessing the credibility and weight of evidence and that the Court may overturn the Board's decision only if it is clearly erroneous).


In its role as factfinder, the Board must first "determin[e] whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc."  Buchanan v. Nicholson, 451 F.3d 1331, 1334-37 (Fed. Cir. 2006); Miller v. Derwinski, 3 Vet. App. 201, 204 (1992).  In certain situations, lay evidence may be used to diagnose a veteran's medical condition.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (stating that "[l]ay testimony is competent . . . to establish the presence of observable symptomatology and 'may provide sufficient support for a claim of service connection'" (quoting Layno v. Brown, 6 Vet. App. 465, 469 (1994))); Washington v. Nicholson, 21 Vet. App. 191, 195 (2007) (holding that, "[a]s a layperson, an appellant is competent to provide information regarding visible, or otherwise observable, symptoms of disability").  Further, lay evidence may be competent to show continuity of symptomatology under 38 C.F.R. § 3.303(b).  See Davidson, 581 F.3d at 1315-16 (rejecting the view that "competent medical evidence is required . . . [when] the determinative issue involves either medical etiology or a medical diagnosis") (citing Jandreau, 492 F.3d at 1376-77); Savage v. Gober, 10 Vet. App. 488, 497 (1997).


When considering lay evidence, the Board should determine whether the veteran's disability is the type of disability for which lay evidence is competent.  Jandreau, 492 F.3d at 1377.  If the disability is of the type for which lay evidence is competent, the Board must weigh that evidence against the other evidence of record in making its determination regarding the existence of a service connection.  See Buchanan, 451 F.3d at 1334-37.  An appellant's attorney is "not qualified to provide an explanation of the significance of the clinical evidence."  Kern v. Brown, 4 Vet. App. 350, 353 (1993).


It is the Board that must determine in the first instance whether the evidence warrants a particular rating under the diagnostic code.  See Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000) ("Appellant tribunals are not appropriate fora for initial fact finding."); see 38 U.S.C. § 7104(d)(1) (requiring the Board to provide a written statement of the reasons or bases for its "findings and conclusions[] on all material issues of fact and law presented on the record"); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990) (holding that the Board's statement of reasons or bases is adequate when it is sufficient to enable a claimant to understand the precise basis for the Board's decision and to facilitate review in this Court); Smallwood v. Brown, 10 Vet. App. 93, 97 (1997) (explaining that the Board's determination of an appropriate schedular disability rating is a finding of fact subject to the "clearly erroneous" standard of review); see also Sanchez–Benitez v. Principi, 259 F.3d 1356, 1360 (Fed. Cir. 2001) (holding that a Board finding is not clearly erroneous if, after reviewing the record and the parties' briefs, the Court concludes that there was a plausible basis for the Board's finding).


"Part of the Board's consideration of how much weight to assign [a medical opinion] is the foundation upon which the medical opinion is based."  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (medical opinion should "support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (it is the Board's duty "to analyze the credibility and probative value of evidence"); Owens v. Brown, 7 Vet. App. 429, 433 (1995) (it is the province of the Board to weigh and assess the evidence of record); see also 38 U.S.C. § 7104(d)(1).


Furthermore, it is the Board, not the medical examiner, that is required to discuss evidence potentially favorable to the appellant.  See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008) (a medical opinion need not explicitly discuss every conceivably relevant piece of information to be adequate); see also Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) ("The medical examiner provides a disability evaluation and the rating specialist interprets medical reports in order to match the rating with the disability."), rev'd on other grounds sub nom. Moore v. Shinseki, 55 F.3d 1369 (Fed. Cir. 2009).

9.4. Independent Medical Examinations

It is well established that in certain circumstances, the Board may conduct its own evidentiary development by, for example, requesting an Independent Medical Examination ("IME") opinion.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991).  In so doing, the Board must ensure that it provides the appellant fair process in the adjudication of his claim.  See Austin v. Brown, 6 Vet. App. 547 (1994); Thurber v. Brown, 5 Vet. App. 119 (1993).  Specifically, the Court has provided that before the Board relies, "in rendering a decision on a claim, on any evidence developed or obtained by it ... the B[oard] must provide a claimant with reasonable notice of such evidence and of the reliance proposed to be placed on it, and a reasonable opportunity for the claimant to respond to it."  Thurber, 5 Vet. App. at 126.  The Court has explained that the appellant's "reasonable opportunity to respond" to an IME opinion is "not limited to argument or comment, but also include[s] the claimant's right to submit additional evidence."  Austin, 6 Vet. App. at 551.


 "The Board may seek to obtain that [additional] development [of the record] itself through a VA Veterans Health Administration or non-VA IME opinion, or through a remand to the RO for it to obtain an IME opinion."  Perry v. Brown, 9 Vet. App. 2, 6 (1996).  It is within the discretion of the Board to determine whether further development is needed to make a decision on the claim.  See Shoffner v. Principi, 15 Vet. App. 208, 213 (2002); Winsett v. West, 11 Vet .App. 420, 426 (1998) ("[W]hether the Board chooses to refer a particular case for an independent medical opinion is entirely within its discretion."); see also 38 U.S.C. § 7109(a) (the Board may seek an advisory medical opinion when such an opinion "is warranted by the medical complexity or controversy involved"); 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary.").  It is entirely within the discretion of the Board to determine whether an IME is warranted.  See 38 U.S.C. § 7109(a); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).

9.5. Consideration of All Evidence

"Decisions of the Board shall be based on the entire record in the proceedings and upon consideration of all evidence and material of record and applicable provisions of law and regulation."  38 U.S.C. § 7104(a); Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991); Weaver v. Principi, 14 Vet. App. 301, 302 (2001).  The Board must include in its decision a written statement of the reasons or bases for its findings and conclusions on all material issues of fact and law presented on the record.  That statement must be adequate to enable an appellant to understand the precise basis for the Board's decision and to facilitate informed review in this Court.  See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet. App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990).


VA must consider "all the evidence of record that bears on occupational and social impairment," and then "assign a disability rating that most closely reflects the level of social and occupational impairment a veteran is suffering."  See, e.g., Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  Section 7104(a) of title 38, United States Code, requires in pertinent part:


Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record and applicable provisions of law and regulation.


38 C.F.R. section 3.303(a) similarly requires that "[d]eterminations as to service connection will be based on review of the entire evidence of record."  38 C.F.R. § 3.303(a) (emphasis added).  Douglas v. Derwinski, 2 Vet. App. 435, 438 (1992).  The Board's failure to consider and discuss specifically all of the evidence before it and the legal issue raised thereby is prejudicial error warranting a remand.  See 38 U.S.C. § 7261(a)(3)(A).  Douglas v. Derwinski, 2 Vet. App. 435, 440 (1992).


A VA examiner is presumed to have considered all the evidence in the record.  Newhouse, 497 F.3d at 1302.  The mere fact that the Board did not specifically discuss that opinion does not render the Board decision inadequate.  Id.  Further, an appellant must demonstrate that he or she was prejudiced by the Board's failure to discuss a particular piece of evidence.  See Shinseki v. Sanders, 556 U.S. 396, 410 (2009) (appellant generally bears the burden of demonstrating prejudicial error on appeal).

9.6. Board Hearings

Pursuant to 38 C.F.R. § 3.103(c)(2), a hearing officer has two distinct duties while conducting a hearing:  (1) "to explain fully the issues;" and (2) to "suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant's position."  Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010) (per curiam) (quoting 38 C.F.R. § 3.103(c)(2) (added emphasis omitted)).  Nothing in the regulation requires the hearing officer "to preadjudicate or otherwise weigh conflicting evidence prior to or at the hearing."  Id. at 493.  Rather, the hearing officer must "fully explain the issues still outstanding that are relevant and material to substantiating the claim" and "suggest that a claimant submit evidence on an issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record."  Id. at 496.  


"It is the responsibility of the [Hearing Officer] to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant's position."  38 C.F.R. § 3.103(c)(2); Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (Board must address issues raised by the appellant or reasonably by the record).  There is prejudice when a claimant is not given a hearing before all Board members who adjudicated his claim and credibility is at issue.  Arneson v. Shinseki, 24 Vet. App. at 379, 387-89 (2011).  If the hearing officer failed to fulfill his duties, the Court must determine whether any resulting error was prejudicial to the appellant.  Id. at 497–98; see 38 U.S.C. § 7261(b)(2) (providing that the Court shall take due account of the rule of prejudicial error); Mayfield v. Nicholson, 19 Vet. App. 103, 116 (2005) (stating that the key to determining whether an error is prejudicial is the effect of the error on the essential fairness of the adjudication), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). 

9.7. Credibility

It is well settled that the Board "has the duty to assess the credibility and weight to be given to the evidence."  Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); Washington v. Nicholson, 19 Vet. App. 362, 369 (2005).  The Board is certainly entitled to consider conflicting statements in weighing credibility.  See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (Board can consider bias in lay evidence and conflicting statements of the veteran in weighing credibility); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) ("The credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character.").  As with any determination, however, the Board must explain the reasoning behind its credibility assessments. Its statement of reasons or bases must be adequate to enable an appellant to understand the precise basis for the Board's decision, and to facilitate informed review in this Court.  38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet. App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet. App. 52, 57 (1990). 


The "lack of contemporaneous medical records may be a fact that the Board can consider and weigh against a veteran's lay evidence."  Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006).  In other words, even in the absence of contemporaneous medical records, "the Board retains discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence."  Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007).


In Cartwright v. Derwinski, the Court found that a veteran having personal interest in the outcome may affect the credibility of the evidence but that the Board may not disregard a veteran's testimony simply because he or she stands to gain monetary benefits.  2 Vet. App. 24, 25 (1991).  The Board is not permitted to find that lay testimony is necessarily not competent to establish a nexus.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (holding that lay statements may not be dismissed categorically on the ground that they are not competent evidence of nexus). The Board's assessment of the credibility and weight to be given to evidence is a finding of fact that the Court reviews under the "clearly erroneous" standard of review.  38 U.S.C. § 7261(a)(4); Wood, 1 Vet. App. at 193; Gilbert v. Derwinski, 1 Vet. App. 49, 52 (1990).  "A factual finding 'is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'"  Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).

10. Court of Appeals for Veterans Claims (CAVC)

10.1. Remand versus Reversal

The Court has held that "reversal is the appropriate remedy when the only permissible view of the evidence is contrary to the Board's decision."  Gutierrez v. Principi, 19 Vet. App. 1, 10 (2004).  Remand is appropriate "where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate."  Tucker v. West, 11 Vet. App. 369, 374 (1998); Johnson v. Brown, 9 Vet. App. 7, 10 (1996).  But a remand unnecessary when it "would result in [the Court] unnecessarily imposing additional burdens on the [Board and the Secretary] with no benefit flowing to the veteran"); cf. McGraw v. Brown, 7 Vet. App. 138, 142 (1994) (Board's failure to discuss an ambiguous notation in light of the overwhelming medical evidence was, at most, harmless error).

10.2. The Court

"[T]he appellant . . . always bears the burden of persuasion on appeals to [the] Court."  Berger v. Brown, 10 Vet. App. 166, 169 (1997).  "The Court requires that an appellant plead with some particularity the allegation of error so that the Court is able to review and assess the validity of the appellant's arguments."  Coker v. Nicholson, 19 Vet. App. 439, 442 (2006).  "An appellant bears the burden of persuasion on appeals to this Court."  Hilkert v. West, 12 Vet. App. 145, 151 (1999) (en banc).  The Court is unable to find error when arguments are "far too terse to warrant detailed analysis by the Court."  See Locklear v. Nicholson, 20 Vet. App. 410, 416 (2006).  Issues or claims not argued on appeal are considered abandoned).  Grivois v. Brown, 6 Vet. App. 136, 138 (1994); see also Mayfield v. Nicholson, 19 Vet. App. 103, 111 (2005) (noting that "every appellant must carry the general burden of persuasion regarding contentions of error"); Evans v. West, 12 Vet. App. 22, 31 (1998) (noting that the Court cannot be expected to consider "vague assertion[s]" or "unsupported contention[s]").  If an appellant did not present any meaningful argument in support of his appeal, it appears that he has abandoned his appeal.  Ford v. Gober, 10 Vet. App. 531, 535 (1997).


The Court is a court of review and is precluded by statute from considering any material that was not contained in the "record of proceedings before the Secretary and the Board."  38 U.S.C. § 7252(b).  However, in certain circumstances, records may be deemed to be constructively before the Board.  See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).  Specifically, the Court has held that [w]here "relevant" documents relating to an appellant's claim were within the Secretary's control (for example, records generated by VA or communications received by it) prior to the B[oard] decision on appeal and could reasonably have been expected to be part of the record before the Secretary and the Board, such documents are "in contemplation of law" constructively part of the record of those proceedings.  Blount v. West, 11 Vet. App. 32, 33 (1998) (per curiam order) (citing Simington v. Brown, 9 Vet. App. 334, 335 (1996)); see also Bell, 2 Vet. App. at 612-13.


When there is neither an NOD nor a final Board decision with respect to the issue of non-service-connected pension, the Court lacks jurisdiction to review that issue on appeal.  38 U.S.C. § 7252; Hampton v. Gober, 10 Vet. App. 481, 483 (1997); Kandik v. Brown, 9 Vet. App. 434, 438 (1996) (Court is without jurisdiction to address claim absent a jurisdiction-conferring NOD).  Breeden v. Principi, 17 Vet. App. 478 (2004).  If the Board has not yet issued a final decision regarding an issue, the Court does not have authority to consider it.  See 38 U.S.C. § 7252 (providing that the Court may only review final decisions of the Board);  see also Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000) (holding that a Board remand does not constitute a final decision that may be appealed (citing 38 C.F.R. § 20.1100(b)(1999))); Tyrues v. Shinseki, 23 Vet. App. 166, 179 (2009) (en banc) ("[T]his Court's jurisdiction is controlled by whether the Board issued a 'final decision' - i.e., denied relief by either denying a claim or a specific theory in support of a claim and provided the claimant with notice of appellate rights.").


The Court's analysis does not end with a conclusion that the Board committed error; rather, the Court is required by statute to determine whether the appellant was prejudiced by the Board's error.  38 U.S.C. § 7261(b)(2) (requiring the Court to "take due account of the rule of prejudicial error"); Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004).  The Court cannot consider evidence in the first instance.  See Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000) (stating that "appellate tribunals are not appropriate fora for initial fact finding"); see also 38 U.S.C. § 7261(c); see 38 U.S.C. § 7261(b)(2) (requiring the Court to "take due account of the rule of prejudicial error"); Shinseki v. Sanders, 556 U.S. 396, 406 (2009) ("We believe that [38 U.S.C. § 7261(b)(2)], in stating that the Veterans Court must 'take due account of the rule of prejudicial error,' requires the Veterans Court to apply the same kind of 'harmless-error' rule that courts ordinarily apply in civil cases."); Mlechick v. Mansfield, 503 F.3d 1340, 1345 (Fed. Cir. 2007) (holding that the Court's statutory duty to take due account of the rule of prejudicial error "permits the . . . Court to go outside of the facts as found by the Board to determine whether an error was prejudicial").

10.3. Remand Compliance

The Court has held that "reversal is the appropriate remedy when the only permissible view of the evidence is contrary to the Board's decision."  Gutierrez v. Principi, 19 Vet. App. 1, 10 (2004).  Remand is appropriate "where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate."  Tucker v. West, 11 Vet. App. 369, 374 (1998); Johnson v. Brown, 9 Vet. App. 7, 10 (1996).  But a remand unnecessary when it "would result in [the Court] unnecessarily imposing additional burdens on the [Board and the Secretary] with no benefit flowing to the veteran"); cf. McGraw v. Brown, 7 Vet. App. 138, 142 (1994) (Board's failure to discuss an ambiguous notation in light of the overwhelming medical evidence was, at most, harmless error).

11. Further Appeals

11.1. Further Appeals

A decision of the Court "shall become final upon the expiration of the time allowed for filing, under section 7292 of [title 38], a notice of appeal [NOA] from such decision."  38 U.S.C. § 7291(a).  Pursuant to section 7292, an appeal from a decision of the Court "shall be obtained by filing [an NOA] with [the Court] within the time and in the manner prescribed for appeal to United States courts of appeals from United States district courts." 38 U.S.C. § 7292(a).  Pursuant to Rule 4 of the Federal Rules of Appellate Procedure, when the United States or its officer or agency is a party to an action, an NOA to U.S. courts of appeals from U.S. district courts must be filed "within 60 days after the judgment or order appealed from is entered."  Fed. R. App. P. 4(a)(1)(B).  Thus, if no NOA is filed, a judgment of the Court (where the United States is always a party) becomes final 60 days after this Court enters judgment.  Luyster v. Principi, 16 Vet. App. 96, 98-99 (2002). 

An appellant may directly challenge an action of the Secretary at the Federal Circuit pursuant to 38 U.S.C. section 502, which provides for direct review of actions of the Secretary.  Military Order of the Purple Heart v. Secretary of Veterans Affairs, 580 F.3d 1293, 1294 n.1 (Fed.Cir.2009) ("An action of the Secretary to which section 552(a)(1) or 553 of title 5 (or both) refers is subject to judicial review.  Such review shall be in accordance with chapter 7 of title 5 and may be sought only in the United States Court of Appeals for the Federal Circuit.").  See Sellers v. Shinseki, 08-1758, 2012 WL 2380247 (Vet. App. June 26, 2012).

Where a notice of appeal to the Federal Circuit is filed and the Federal Circuit issues a dismissal order, appeal rights from those voluntary dismissals "are presumed unless disclaimed or specifically prohibited."  Impresa Construzioni Geom. Domenico Garufi v. United States, 531 F.3d 1367, 1372 (Fed. Cir. 2008); see also Bowers v. Brown, 8 Vet. App. 25, 27 (1995) (holding that USCAVC order granting consensual motion for remand pursuant to U.S. VET. APP. R. 41(b) was "final and not appealable," pursuant to 28 U.S.C. § 2412(d)(2)(G)).  The Court has held that where there were no conditions that prevented a party from filing a certiorari petition to the Supreme Court, the Court's judgment became "final and not appealable" under 28 U.S.C. section 2412(d)(2)(G) upon the expiration of the period for filing a petition for certiorari from the judgment of the Federal Circuit.  Kiddey v. Shinseki, 22 Vet. App. 367, 371-72 (2009).

A nondispositive Court order must satisfy three requirements to be appropriate for certification to the Federal Circuit for an interlocutory appeal.  First, the nondispositive order must be based on a legal determination appropriate for Federal Circuit review.  See 38 U.S.C. §§ 7292(a), (d) (limiting Federal Circuit's jurisdiction to review of constitutional questions and questions of statutory or regulatory validity or interpretation); Conway v. Principi, 353 F.3d 1369, 1372 (Fed. Cir. 2004) ("[W]hile we can review questions of law, we cannot review applications of law to fact.").  Second, there must be "a substantial ground for difference of opinion ... with respect to that question of law."  38 U.S.C. § 7292(b). Finally, "the ultimate termination of the case may be materially advanced by the immediate consideration of that question."  Id.; see Yu v. Brown, 9 Vet. App. 121, 122 (1996); Bonhomme v. Nicholson, 22 Vet. App. 317, 318 (2007).

Claims that the Court failed to take into consideration certain documents pursuant to Rule 10 do not fall within the Federal Circuit's statutory grant of jurisdiction, and that Court is precluded by law from hearing [such an] appeal.  Bair v. Brown, 6 Vet. App. 68, 69 (1993).

12. Increasing, Reducing and Severing Disability Ratings

12.1. Increasing VA Ratings

An increased-rating claim is the same as a claim for increased benefits and the terms are used interchangeably throughout the caselaw addressing VA disability compensation.  Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 96 (2010).  A claim for an increased disability rating is a new claim, and the Board's determination of whether a claimant is entitled to an increase in a schedular disability rating is a question of fact subject to the "clearly erroneous" standard of review in the Court.  See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); Cox v. Brown, 6 Vet. App. 459, 460 (1994).  The Court has consistently held that, in an increased rating claim, the relevant issue is the appellant's current level of disability.  See, e.g., Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992).  


In Vazquez–Flores II, the Federal Circuit addressed:  (1) Whether section 5103(a) requires the Secretary to provide a veteran seeking an increased rating with the relevant rating criteria under every DC potentially applicable to the veteran's present disability; and (2) whether the Secretary must consider the effect of the worsening of a service-connected disability upon the veteran's daily life.  580 F.3d at 1275.  The Federal Circuit held that reference to DCs is not required because generic notice in response to a particular type of claim—a claim for an increased rating—is all that is required under Wilson v. Mansfield, 506 F.3d 1055, 1062 (Fed. Cir. 2007) (holding that section 5103(a) requires only generic notice in that it need not identify evidence specific to the individual claimant's case) and Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334, 1347–48 (Fed. Cir. 2003) (holding, inter alia, that section  3.159(b)(1) does not require notice that identifies specific evidence needed to substantiate a particular veteran's claim).  Id. at 1277. The Federal Circuit also held that the Secretary's failure to provide notice to increased-rating applicants that they should submit evidence relating to "the effect that worsening has on the claimant's ... daily life" does not constitute a breach of the Secretary's duty to provide adequate notice.  Id. at 1280.  Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 99 (2010).  Therefore, section 5103(a) requires the Secretary, for increased-rating claims, to notify the claimant that to substantiate such a claim the claimant should provide or ask the Secretary to obtain medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment.  Id.


As a general matter, "the effective date of an award based on ... a claim for increase[ ] of compensation ... shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor."  38 U.S.C. § 5110(a).  There are statutory and regulatory exceptions to this general rule, however.  For instance, section 5110(b)(2) provides that "[t]he effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date."  See also 38 C.F.R. § 3.400(o )(2) (implementing section 5110(b)(2)).


38 C.F.R. section 3.157(b) provides in pertinent part:


Once a formal claim for ... compensation has been allowed ... receipt of one of the following will be accepted as an informal claim for increased benefits.... (1) Report of examination or hospitalization by Department of Veterans Affairs or uniformed services.  The date of outpatient or hospital examination ... will be accepted as the date of receipt of a claim....  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....


Thus, this provision "provides that an informal claim for benefits 'will' be initiated by a report of examination or hospitalization for previously established service-connected disabilities."  Norris v. West, 12 Vet. App. 413, 417 (1999).


It is self-evident that the purpose of § 3.157(b)(1) is to avoid requiring a veteran to file a formal claim for an increased disability rating where the veteran's disability is already service connected and the findings of a VA report of examination or hospitalization demonstrate that the disability has worsened.  Further, because this provision provides that "[t]he date of outpatient or hospital examination ... will be accepted as the date of receipt of a claim," section 3.157(b)(1) operates in conjunction with section 5110(a) to entitle such a veteran to an effective date for any increase in compensation as of the date of the examination (or, pursuant to section 5110(b)(2), up to one year prior thereto, should the examination report or other evidence demonstrate that the increase in disability was first ascertainable within that period).  Massie v. Shinseki, 25 Vet. App. 123, 131-32 (2011).

12.2. Reopening Disallowed Claims

In order to reopen a case that has become final, an appellant must submit evidence that is both new and material.  38 U.S.C. §§ 5108, 7104(b).  Failure to do so precludes reopening of the claim.  To be material the new evidence must be probative and must be of such significance that, when it is viewed in the context of all the evidence, old and new, there is at least a reasonable possibility that the result would thereby be changed.  Evans v. Brown, 9 Vet. App. 273 (1996); Cox v. Brown, 5 Vet. App. 95, 98 (1993).  38 C.F.R. section 3.156(a), states the same principle in a slightly different, if somewhat vaguer and more subjective way, i.e., the "new" evidence must be of such significance "that it must be considered in order to fairly decide" the claim.  Nici v. Brown, 9 Vet. App. 494, 496 (1996).


Pursuant to 38 U.S.C. section 5108, "[i]f 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. § 5108.  "New and material evidence" is defined as follows:


New evidence means existing evidence not previously submitted to agency decisionmakers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.


38 C.F.R. § 3.156(a).  When evaluating whether evidence justifies reopening a claim, the Board is required to discuss the reasons or bases for its findings and conclusions on material issues of fact and law.  Allday v. Brown, 7 Vet. App. 517, 527 (1995).


The Court reviews whether evidence is new and material under the "clearly erroneous" standard of review.  38 U.S.C. § 7261(a)(4); see Elkins v. West, 12 Vet. App. 209, 216 (1999) (en banc).  

12.3. Rating Reductions

When reducing a total disability rating based on the severity of an appellant's condition, the burden falls on VA to show "material improvement" in the veteran's condition from the time of the previous rating examination that assigned the appellant's 100% disability rating.  Ternus v. Brown, 6 Vet. App. 370, 376 (1994); Hohol v. Derwinski, 2 Vet. App. 169, 172 (1992); see also Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992); 38 C.F.R. § 3 .343(a).  The reduction must be based on "[e]xamination reports showing material improvement[, which] must be evaluated in conjunction with all the facts of record, and consideration must be given particularly to whether the veteran attained improvement under the ordinary conditions of life."  38 C.F.R. § 3.343(a).

Pursuant to 38 C.F.R. section 3.105(e), when the RO determines that a rating reduction is warranted, it is required to issue a proposed rating reduction, setting forth the reasons for the proposed reduction, and to allow the veteran a period of at least 60 days to submit additional evidence to show that the rating should not be reduced.  Furthermore, when, after such period, the RO issues a decision reducing the rating, that reduction does not become effective until the "[l]ast day of [the] month following 60 days after notice to [the] payee" of the reduction decision.  38 C.F.R. § 3.400(r); see 38 C.F.R. § 3.105(e).  The effect of sections 3.105(e) and 3.400(r) combined is that a rating reduction cannot be made effective for a minimum of 120 days after it is proposed in writing to the veteran.  Brown (Kevin) v. Brown, 5 Vet. App. 413, 418 (1993).

An important right that can easily be overlooked in the notice of a proposed reduction (because VA buries it in the notice), is the right for a "pre-determination hearing" under 38 C.F.R. section 3.105(i).  A claimant has a right to this hearing if he or she requests it within 30 days of the notice of proposed reduction.  Requesting a pre-determination is important because VA cannot implement the proposed reduction until after the hearing and it reaches a decision based on the evidence and the hearing.  In practice, this means that a claimant can delay a reduction and continue to receive full payments for some months in order to obtain evidence or assistance.

There is a risk, however, in continuing to receive full benefit payments under these circumstances.  Should the VA still conclude that a reduction is appropriate, it will create a debt against the veterans for the "overpayments" during the time waiting for the pre-determination hearing and decision.  This means that a veteran can end up with lower benefits payments and owe the VA a large sum.  Veteran's requesting a pre-determination hearing are, therefore, strongly urged to be careful with their finances until the reduction issue is finally decided

In every rating reduction case, the Board must "ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations."  Brown v. Brown, 5 Vet. App. 413, 421 (1993); see also Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991) (requirements "operate to protect claimants against adverse decisions based on a single, incomplete[,] or inaccurate report and to enable VA to make a more precise evaluation of the level of disability and of any changes in the condition"); 38 C.F.R. §§ 4.1, 4.2, 4.13.  Where the Court concludes that the Board has reduced a veteran's rating without observing applicable laws and regulation, such a rating is void ab initio and the Court will set it aside as "not in accordance with the law."  38 U.S.C. § 7261(a)(3)(A); Kitchens v. Brown, 7 Vet. App. 320, 325 (1995); see Brown, 5 Vet. App. at 422; Horowitz v. Brown, 5 Vet. App. 217 (1993).

When determining whether VA was justified in reducing a veteran's disability rating that has continued at the same level for five or more years, "the Board is required to establish, by a preponderance of the evidence and in compliance with 38 C.F.R. § 3.344, that a rating reduction is warranted."  Sorakubo v. Principi, 16 Vet. App. 120, 123–24 (2002) (citing Brown v. Brown, 5 Vet. App. 413, 421 (1993)); see also Kitchens v. Brown, 7 Vet. App. 320, 325 (1995) (holding that when the regional office reduces a veteran's rating without observing the applicable VA regulations, the reduction is void).  The regulatory requirements for reducing a disability rating that has continued at the same level for five years or more are more stringent than the general requirements for increasing or decreasing a disability rating that has been in effect for a shorter amount of time.  See 38 C.F.R. §§ 3.344(a)-(c); Collier v. Derwinski, 2 Vet. App. 247, 249–50 (1992).  "Such disabilities are considered 'stabilized,' and the regulation thus requires a high degree of accuracy in decisions reducing those ratings."  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991) (citing 38 C.F.R. § 3.344(c)).  In addition, certain regulations "are applicable to all rating reductions regardless of whether the rating has been in effect for five years or more as required by section 3.344(c)," including 38 C.F.R. sections 4.1, 4.2, 4.10, and 4.13.  Brown, 5 Vet. App. at 420.

Pursuant to sections 4.1, 4.2, and 4.13, VA is required in any rating-reduction case "to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations."  Brown, 5 Vet. App. at 421; see also Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991) (such requirements "operate to protect claimants against adverse decisions based on a single, incomplete[,] or inaccurate report and to enable VA to make a more precise evaluation of the level of disability and of any changes in the condition").  In addition, "in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work."  Brown, 5 Vet. App. at 421; see also 38 C.F.R. §§ 4.2, 4.10.

The Court has specifically required VA to follow its own regulations when it attempts to reduce a veteran's rating.  See Fugere v. Derwinski, 1 Vet. App. 103 (1990) (holding that VA was required to give notice and opportunity to be heard prior to deleting provision of VA Adjudication Procedure Manual M21–1MR that had provided regulatory-like procedural protections prior to reducing veteran's rating, and noting: "Where the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures." (citations omitted)), aff'd, 972 F.2d 331 (Fed. Cir. 1992).  The Court determines de novo whether VA has followed and applied its own regulations in reducing or terminating VA benefits.  See Wilson (Merritte) (making determination de novo without so stating) and Fugere (same), both supra; Brown (Kevin) v. Brown, 5 Vet. App. 413, 416–21 (1993) (same); cf. Buzinski, supra (reviewing de novo compliance with VA regulation regarding mortgage foreclosure).  

If VA affords to a veteran the applicable procedural protections and nonetheless determines that a reduction in rating is warranted, the determination as to the degree of disability under the applicable diagnostic code is a finding of fact subject to the "clearly erroneous" standard of review.  See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Faust v. West, 13 Vet. App. 342, 348 (2000).

In reducing a rating of 100 percent service-connected disability based on individual unemployability, the provisions of section 3.105(e) apply but caution must be exercised in such a determination that actual employability is established by clear and convincing evidence.  If a veteran with a total disability rating for compensation purposes based on individual unemployability begins to engage in a substantially gainful occupation during the period beginning after January 1, 1985, the veteran's rating may not be reduced solely on the basis of having secured and followed such substantially gainful occupation unless the veteran maintains the occupation for a period of 12 consecutive months.  For purposes of this subparagraph, temporary interruptions in employment which are of short duration shall not be considered breaks in otherwise continuous employment.  38 C.F.R. §§ 3.343(a), (c); Faust v. West, 13 Vet. App. 342, 352 (2000).

There is a clear distinction between a claim challenging a reduction in a schedular rating and one involving a claim for a restoration or an increase in a schedular rating.  See Peyton v. Derwinski, 1 Vet. App. 282 (1991); Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992).  "The initial procedural burden regarding proposed rating reductions [pursuant to section 3.343(a) ] ... falls squarely on the VA to show material improvement from the previous rating examination that had continued a veteran's 100% disability rating."  Ternus v. Brown, 6 Vet. App. 370, 376 (1994).  "[T]he circumstances under which rating reductions can occur are specifically limited and carefully circumscribed by regulations promulgated by the Secretary."  Dofflemyer, 2 Vet. App. at 280.

That the Court has jurisdiction to review the BVA's failure to decide the improper reduction claim is clear.  See 38 U.S.C. § 511(a) ("The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary to veterans ..."); In the Matter of Fee Agreement of Smith, 10 Vet. App. 311 (1997) (BVA failure to adjudicate veteran's claims properly before it was a final adverse decision with respect to that claim); Suttmann v. Brown, 5 Vet. App. 127, 133 (1993) (Board erred in failing to adjudicate a claim reasonably raised to it); see also Carpenter v. Gober, 11 Vet. App. 140 (1998) (an implied claim which is not reviewed by the BVA is considered a denial).  Thus, while the Court may not review nonfinal BVA decisions to remand, it clearly may—indeed, must—review claims explicitly or implicitly raised by the appellant and not adjudicated by the BVA.

12.4. Severed Ratings

 "When severance of service connection is considered warranted, a rating proposing severance will be prepared setting forth all material facts and reasons."  38 C.F.R. § 3.105(d).  The "Revision of decisions" section of 38 C.F.R. section 3.105 applies to severance actions.


(a) Error.  Previous determinations which are final and binding, including decisions of service connection ... will be accepted as correct in the absence of clear and unmistakable error.


. . .


(d) Severance of service connection.... [S]ervice connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous (the burden of proof being upon the Government).


38 C.F.R. §§ 3.105(a), (d).  Subsection (d) further provides that, when severance of service connection is considered warranted, a "rating proposing severance will be prepared setting forth all material facts and reasons ... and the claimant will be notified ... of the contemplated action and furnished detailed reasons therefor and will be given 60 days for the presentation of additional evidence to show that service connection should be maintained."  38 C.F.R. § 3.105(d); Wilson v. West, 11 Vet. App. 383, 385 (1998).


A severance decision must be based on all of the acquired evidence-including evidence acquired after the decision granting service connection, and especially including the relevant evidence that the appellant submitted in response to the proposed severance.  Stallworth v. Nicholson, 20 Vet. App. 482, 488 (2006); Daniels v. Gober, 10 Vet. App. 474, 480.  "The plain language of the regulation provides that service connection can only be terminated when a medical professional certifies that her review of all the evidence indicates that the prior diagnosis is 'clearly erroneous.'"  Andino v. Nicholson, 498 F.3d 1370, 1372 (Fed. Cir. 2007).