Citation Nr: 0000783 Decision Date: 01/11/00 Archive Date: 01/27/00 DOCKET NO. 97-29 307 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to an effective date prior to June 20, 1996 for a total disability rating based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Michael Martin, Counsel INTRODUCTION The veteran had active service from May 1966 to May 1968. This matter came before the Board of Veterans' Appeals (BVA or Board) on appeal from a decision of February 1997 by the Department of Veterans Affairs (VA) Winston-Salem, North Carolina, Regional Office (RO). In the decision, the RO granted a total disability rating based on individual unemployability due to service-connected disabilities, effective from June 20, 1996. REMAND The veteran has previously established service connection for tinnitus, rated as 10 percent disabling effective from July 11, 1988; hearing loss, rated as noncompensably disabling effective from July 11, 1988; post-traumatic stress disorder, rated as 50 percent disabling effective from January 20, 1994; and left anterior chest wall pain syndrome due to surgical treatment at a VA medical center, rated as 40 percent disabling effective from June 20, 1996. The RO assigned an effective date of June 20, 1996, for a total disability rating based on individual unemployability because that was the date on which the RO had received the veteran's claim for compensation for chest wall pain due to VA surgical treatment under 38 U.S.C.A. § 1151. The Board finds, however, that there are indications in the claims file that the veteran may have submitted his claim for 38 U.S.C.A. § 1151 benefits to a different part of the VA prior to that date. In this regard, the veteran has presented a copy of a "Claim For Damage, Injury Or Death" dated in May 1996 and addressed to the VA District Counsel Office. He has also presented a copy of a letter of the same date, also addressed to the District Counsel, in which he stated that he had undergone heart surgery at a VA hospital, that the surgical procedure resulted in injury, and that he was requesting compensation for the damages. The United States Court of Appeals for Veterans Claims (Court) has held that, under some circumstances, one part of the VA may be deemed to have "constructive notice" of evidence or documents which are under the control of another part of the VA. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Furthermore, the Court has noted that consideration can be given to assigning an earlier effective date where a claim is forwarded to the RO from other sections of the VA. See Hanson v. Brown, 9 Vet. App. 29, 31 (1996). The evidence currently in the claims file, however, does not demonstrate the exact date on which such documents were received by the VA District Counsel's office. The copies of the documents which are in the claims file are not the original documents, but are instead copies which the veteran forwarded to his representative, and which are stamped as having been received by the representative's office on May 22, 1996. In light of the foregoing, the Board finds that the RO should determine when the veteran's letter and claim were first received by the VA District Counsels Office, and consideration should be given as to whether receipt of a claim by the District Counsel's office may amount to receipt of the claim by the VA for effective date purposes. Accordingly, to ensure that the VA has met its duty to assist the claimant in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following development: 1. The RO should contact the VA District Counsel's office and request copies of any correspondence which the veteran filed with that office prior to June 20, 1996, along with any available information pertaining to the date of receipt of any such documents. 2. After the development requested above has been completed to the extent possible, the RO should again review the record to determine whether there is any basis for assigning an earlier effective date. If the benefit sought on appeal remains denied, the appellant and representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. See Kutscherousky v. West, 12 Vet. App. 369 (1999). RAYMOND F. FERNER Acting Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1999).