**This version includes an errata dated 12Sep02-e**

**UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS**

No. 00-1267

[Dana L. Myers, Appellant,]{.smallcaps}

[v.]{.smallcaps}

[Anthony J. Principi,]{.smallcaps}

[Secretary of Veterans Affairs, Appellee.]{.smallcaps}

On Appeal from the Board of Veterans\' Appeals

(Argued February 8, 2002 Decided August 13, 2002 )

*James C. McKay*, of Washington, D.C., for the appellant.

*David J. Lowenstein*, with whom *Tim S. McClain*, General Counsel; *Ron
Garvin*, Assistant General Counsel; *Darryl A. Joe*, Acting Deputy
Assistant General Counsel; and *Kathy A. Banfield*, all of Washington,
D.C., were on the brief, for the appellee.

Before KRAMER, *Chief Judge*, and IVERS and STEINBERG, *Judges*.

STEINBERG, *Judge*: The appellant, through counsel, seeks review of a
June 15, 2000, decision of the Board of Veterans\' Appeals (Board or
BVA) that denied an effective date earlier than January 28, 1994, for an
award of Department of Veterans Affairs (VA) service connection for his
back condition. Record (R.) at 4. The Board reached this conclusion by
reasoning that an April 1958 VA regional office (RO) decision was a
\"final decision\" that the appellant did not appeal and therefore could
not provide the basis for an earlier effective date (EED). R. at 3, 8-9.
The appellant and the Secretary have both filed briefs, and the
appellant has filed a reply brief. The Court heard oral argument from
the parties on February 8, 2002, and thereafter ordered briefing on five
issues raised during oral argument. *Myers v. Principi*, 15 Vet.App. 428
(2002) (per curiam order) \[hereinafter *Myers II*\]. The Secretary has
filed a response, and the appellant has filed a reply thereto. This
appeal is timely, and the Court has jurisdiction pursuant to
38 U.S.C. §§ 7252(a) and 7266(a). For the reasons that follow, the Court
will reverse the Board decision and remand the matter for the assignment
of an effective date and a rating or ratings, as appropriate.

**I. Relevant Background**

The veteran served honorably in the U.S. Marine Corps from January 1956
to December 20, 1957. R. at 37. In March and November 1957, he was
admitted to a U.S. naval hospital for treatment of back pain. R. at
23-35. During his treatment in November 1957, he was diagnosed with a
congenital back deformity, \"spondylolysis, L4, L5, without
spondylolisthesis\". R. at 27-28. A Naval Board of Medical Survey deemed
him \"\[u\]nfit for duty\" and recommended that he be discharged from
service because of this condition. R. at 28. According to service
medical records, in 1955, prior to his entry into the service, he \"fell
30 feet from a bridge and landed on his back\"; this incident caused his
injury, which was \"aggravated by prolonged standing or walking\". R. at
27. In a 1995 VA Form 1-9 Substantive Appeal to the BVA, the veteran
asserted that this account of his injury was incorrect and that,
instead, he had \"slipped down an embankment by a bridge at that time
\[in 1955\], with no injuries\". R. at 150.

In February 1958, two months after his discharge, the veteran made his
first claim for service connection for his back condition (R. at 39-42);
the VARO denied that claim in April 1958 (R. at 44) and sent notice of
that decision to the veteran on May 2, 1958 (R. at 49). The RO advised
the veteran that he had one year to appeal if he wished to do so and
that, if he \"so inform\[ed\]\" that office, he would \"be furnished
\[a\] VA Form 1-9 for that purpose\". R. at 49. On April 20, 1959, the
RO received a letter from the veteran, stating, in pertinent part:

> This letter is in regards to my claim which was filed in San Diego
> last year. The claim was turned back because it was said that my
> condition \[was\] not incurr\[ed in\] nor was aggr\[a\]vated by my
> military service. I would like to have a copy of that letter so that I
> may refile my claim as soon as possible. The letter that was given to
> me has gotten lost somewhere so I will need another copy. Also, please
> send me instructions of how to go about reopening my claim. My
> condition has become worse since my release from the service. I feel
> that I should be able to get something to justify it because I was
> never bothered with my back until after I had already served fourteen
> months of my enlistment period.
>
> Please send me all materials as soon as possible so that I may get
> this claim reopened as soon as can be arranged.

R. at 56. On June 2, 1959, an RO verified its receipt of his letter and
informed him: \"Such evidence as you may wish to submit to reopen your
claim must show that it \[sic\] was incurred during service.\" R. at 62.
In June 1960, the RO \"confirmed and continued\" the prior denial of
service connection (R. at 79) and informed the veteran that \"\[t\]he
evidence does not warrant any change in the previous determination\" (R.
at 78). In October 1986 and April 1988, the RO again denied his claims
to reopen because it found that the evidence presented was not new and
material. R. at 89, 106.

The veteran filed in February 1994 still another claim to reopen (R. at
109), which the RO denied (R. at 128-30), and the veteran subsequently
appealed to the Board (R. at 137-38). In January 1997, the Board
reopened his claim and remanded the matter to the RO. R. at 181-89. In
June 1997, the RO awarded service connection for \"chronic lumbosacral
strain aggravating pre-existing L5-S1 spondylolisthesis\", rated at 40%
from January 28, 1994 (with a 100% rating for the period from February
14, 1996, through March 31, 1996, for treatment that necessitated
convalescence). R. at 219-22. In June 1997, the veteran requested an EED
by submitting a statement-in-support-of-claim form, in which he stated:
\"My first appeal was filed in 1958 . . . . Please explain why I was
only compensated from 1994 to present.\" R. at 242. The RO denied an EED
(R. at 273), as did the Board (R. at 283-89), and the veteran appealed
to this Court.

In October 1999, the Court vacated the January 1998 BVA decision because
the Board failed to provide an adequate statement of reasons or bases
for its decision and remanded the matter for readjudication. *Myers v.
West*, No. 98-864, 1999 WL 1023785 at \*4-6 (Oct. 22, 1999)
\[hereinafter *Myers I*\]; R. at 291-98. The Court noted the Board\'s
failure to analyze thoroughly the finality of the April 1958 RO decision
or to refer to authority supporting its conclusion. *Id*. at \*5. The
Court concluded that should the 1959 letter constitute an application
for review on appeal, \"then it would appear that the RO\'s November
1994 \[Statement of the Case (SOC)\] may have been a part of the
adjudication of an original, rather than a reopened, claim, and the
Board\'s effective-date determination must consider the application of
38 U.S.C. § 5110(b)(1)\". *Myers I*, 1999 WL 1023785 at \*6.

On remand, in the BVA decision here on appeal, the Board determined that
it could award an EED only if it found that, in response to the 1958 RO
decision, the veteran had \"filed an appeal . . . \[rather than\]
submitted instead an application to reopen his claim\". R. at 7. The
Board reasoned that \"the letter from the veteran contains all the
information required then by regulation to constitute an application for
appeal\[\] and would be considered as such by the current Board if the
veteran had not expressed specifically and without qualification an
intent for some other course of action\". R. at 8. In examining the
veteran\'s intent, the Board evaluated the letter that he wrote to the
RO in April 1959, and concluded:

> He did not use the word \[\"\]appeal\[\"\] or state words to the
> effect that he wished to challenge that determination. The RO had
> instructed him that if he wished to appeal, he should inform \"this
> office,\" and they would furnish \[to\] him \[a\] VA Form 1-9 for that
> purpose. He did not indicate in his statement of June 1959 that he
> wished to appeal.

R. at 7-8. Furthermore, the Board found:

> \[W\]hen his claim in 1959, construed as a claim to reopen, was denied
> and he was given the opportunity to appeal, he did not do so. Frankly,
> the Board feels that if the veteran had intended to appeal the 1958
> decision in his correspondence received in May 1959, he would have
> certainly appealed the 1960 decision denying his claim or at least
> have clarified his intent regarding his earlier claim.

R. at 8.

**II. Contentions on Appeal**

In his principal brief, the appellant argues, inter alia, that the Board
decision should be reversed because his April 1959 letter \"constituted
a valid application for review on appeal\" pursuant to 38 U.S.C. § 4005
(1958). Brief (Br.) at 9-11. The appellant asserts that the Board erred
by focusing on his decision not to appeal the June 1960 decision and
that instead the Board should have focused on the obvious intent stated
in the 1959 letter. Br. at 11. The appellant also argues that because an
SOC was never issued as to the 1958 RO decision, under *Tablazon v.
Brown*, 8 Vet.App. 359, 361 (1995), the 1958 RO decision is not final
and therefore the Court should reverse the Board decision and assign an
effective date of February 8, 1958 (Br. at 14-16, 19), the date of his
original claim (R. at 39-42).

The Secretary counters that, under current 38 U.S.C. § 5110(a), January
28, 1994, the date on which the appellant filed his claim to reopen, is
the correct effective date. Br. at 8. In support of his argument that
reversal is improper because the veteran failed to file a timely
application for review on appeal (Br. at 9), the Secretary urges that
the Court has an \"obligation to review both the actual wording of a
communication and the context in which the communication was written in
order to determine whether the statement qualified as a \[Notice of
Disagreement (NOD)\] in 1959\" (Br. at 15-16). The Secretary further
argues that the Court also should look to the \"circumstances
surrounding the letter\", including, inter alia, (1) the failure of the
appellant to file an appeal after the RO \"informed him of the evidence
needed to substantiate his claim\" (R. at 62); (2) his failure to appeal
the 1960 (R. at 78), 1986 (R. at 89), and 1988 (R. at 106-07) RO
decisions; and (3) his admission, through his representative, that the
1958 RO decision \"became final when the veteran failed to perfect an
appeal within the one\[-\]year time period as prescribed by law\" (R. at
279). Br. at 16-17.

Following oral argument, the Court ordered supplementary briefing by the
Secretary as to whether, under 1958 and current law and regulation, (1)
the correspondence lawfully could have been a claim to reopen, (2) the
appellant had the right to submit additional evidence at the time of the
correspondence, and (3) the obligation is applicable \"to construe
liberally towards a claimant\" law, regulation, and pleadings; the Court
also ordered briefing regarding (4) legislative history relating to
section 4005(e), and (5) the meaning of the RO\'s May 1958 reference to
the use of VA Form 1-9. *Myers II*, 15 Vet.App. at 428-29.

In response to the Court order, the Secretary asserts that the veteran
could have lawfully, within the one-year period after the date of the
RO\'s decision, requested that his claim be reopened or presented
additional evidence on the original claim. Response (Resp.) at 1-2. With
regard to the rule of liberal construction, the Secretary argues that
although that rule was in effect in 1958 when the veteran\'s claim was
adjudicated before the RO, it is not implicated here because his 1959
correspondence \"explicitly\" referred to \"reopen\[ing\]\" and
\"refil\[ing\]\" his claim, rather than \"appeal\[ing\]\" it. Resp. at
2-3. The Secretary also submitted legislative history that he contends
supports his reading of 38 U.S.C. § 4005(e) (1958) that \"should\" in
section 4005(e) retained the meaning of \"must\" as it was originally
written in Veterans Regulation No. 2 from March 1933. Resp. at 4-7,
Exhibit (Exh.) A. With regard to the reference to VA Form 1-9, the
Secretary notes that he was unable to \"uncover the statutory or
regulatory genesis\" of the procedure but argues, instead, that a \"VA
manual\[\] extant at the time\" of the 1959 letter referred to the Form.
Resp. at 7, Exh. D; VA Manual 8-5, Adjudication Procedure, 1956 Changes,
para. 137 \[hereinafter \"Manual 8‑5\" or \"the Manual\"\].

In the appellant\'s reply, he argues, inter alia, (1) that there was no
indication in his 1959 correspondence that he wished to present evidence
in support of his claim and thus he was not attempting to reopen his
claim (Reply at 1-2); (2) that the change of the word \"must\" in VA
Regulation No. 2 to \"should\" in section 4005(e) simply reflects \"that
the requirement became discretionary and not mandatory\" (Reply at 3);
and (3) that VA failed to examine the veteran\'s 1959 letter, which
expressed \"dissatisfaction following rating . . . action\", in order to
determine, as required by Manual 8-5, whether there was \"procedural,
regulatory, or factual error in adjudication or other circumstances
warranting further development or corrective action\", and that VA
failed to send him a Form 1-9, as then required by Manual 8-5 (Reply at
3-4).

**III. Analysis**

***A. 1959 Letter as an Application for Review on Appeal***

In the decision now on appeal, the Board found on remand that the
appellant\'s 1959 letter \"contain\[ed\] all the information required
then by \[statute and\] regulation to constitute an application for
appeal\". R. at 8. Because that determination is favorable to the
appellant, there may be a serious question whether, under *Nolen v.
Gober*, the Court could alter that conclusion. *Nolen*, 222 F.3d 1356,
1360 (Fed. Cir. 2000) (holding that once Secretary had determined that
claim was well grounded, that determination had served its
\"gatekeeping/triggering function\" and \"los\[t\] its force\", and,
therefore, it was improper for Court to reconsider matter). Neither this
Court nor the U.S. Court of Appeals for the Federal Circuit has held
whether this Court can disturb a favorable Board determination. However,
this is not the appropriate case to reach that question, because, for
the reasons set forth below, we agree with the Board\'s conclusion that
the 1959 letter met the criteria for an application for review on
appeal. We also note that it may be questionable for the Secretary to
argue, in apparent contradiction of the Board\'s determination, that the
letter does not satisfy the statutory requirements for an application
for review on appeal. *See* 38 U.S.C. § 7252(a) (providing that
Secretary may not seek review of any Board decision). Again, in light of
our independent review, we need not further address this question in the
instant case.

Following the RO\'s May 1958 denial of the veteran\'s original claim for
service connection, he expressed in his April 1959 letter (quoted, in
pertinent part, in part I, above) the desire to \"refile\" his claim
that \"was turned back because it was said that \[his\] condition
\[was\] not incurr\[ed\] nor was aggr\[a\]vated by \[his\] military
service\" and asked for \"instructions of how to go about reopening
\[his\] claim\". R. at 56. At that time, 38 U.S.C. § 4005 contained the
requirements for an application for review on appeal, including that the
application be filed within one year after the date of mailing of notice
of the RO decision being appealed. 38 U.S.C. § 4005(a) (1958).
Furthermore, the statute then provided in pertinent part:

> \(d\) In each application for review on appeal the name and service of
> the veteran on account of whose service the claim is based must be
> stated, together with the number of the claim and the date of the
> action from which the appeal is taken. The application must clearly
> identify the benefit sought.
>
> \(e\) Each application for review on appeal should contain specific
> assignments of the alleged mistake of fact or error of law in the
> adjudication of the claim. Any application which is insufficient may
> be dismissed.

38 U.S.C. § 4005(d), (e) (1958); *see* 38 C.F.R. § 19.2 (1956)
(providing no additional guidelines for application for review on
appeal).

In the BVA decision on appeal, the Board reasoned that the 1959 letter
was not an application for review on appeal because the veteran did not
use the proper language in that letter, did not send to the RO a
subsequent statement of that intent, and did not appeal the 1960 RO
decision, which \"\[f\]rankly, the Board ***feels***\" he would have
done had he intended to appeal the 1958 decision. R. at 7-8 (emphasis
added). The Board summarized its decision as follows: \"Accordingly, the
Board cites the specific language used by the veteran \[in\] his May
1959 correspondence and his decision not to appeal the 1960 decision as
***conclusive evidence*** of his intent not to appeal the 1958
decision.\" R. at 8 (emphasis added). The Board\'s reasoning regarding
the veteran\'s decisions not to appeal later determinations, as well as
the Secretary\'s similar argument, is inherently flawed: Neither the
Board nor the Court can look ahead in time to determine what happened in
the past. The issue of law before the RO and the Board, and now before
the Court, is not what the veteran intended, subjectively, by his 1959
letter as divined from ***his subsequent actions between that time and
the present***, but rather whether the content of that letter
objectively satisfied the criteria for an application for review on
appeal under then-existing law, 38 U.S.C. § 4005 (1958). Furthermore,
the Board\'s determination that the veteran\'s decision not to appeal a
***later*** decision was \"conclusive evidence\" of the veteran\'s
intent not to appeal a ***prior*** decision has no support in the law or
in logic.

***1. Compliance with Section 4005(d)***

As to the content requirements of the statute, as required by section
4005(d), the veteran included in the 1959 letter his name (\"Dana LeRoy
Myers\"), service (\"my military service\"), claim number (\"C 20 696
280\"), and date of the prior action (\"last year\"). R. at 56; 38
U.S.C. § 4005(d) (1958). This subsection of the statute also required
that the application \"clearly identify the benefit sought\"; the
veteran described his claim that \"was turned back because it was said
that my condition \[was\] not incurr\[ed\] nor was aggr\[a\]vated by my
military service\", thereby implicitly referring to his claim as one for
service connection. R. at 56. Moreover, he stated that he felt he
\"should be able to get something to justify \[his disability\]\",
thereby, in his own words, ***requesting*** service connection. *Ibid*.;
38 U.S.C. § 4005(d) (1958).

As to the BVA finding that the appellant had not indicated specifically
to the RO that he wanted to appeal (R. at 7-8), the Secretary provides a
copy of an excerpt from Manual 8-5, which, under the heading \"Informal
Appeals\", was amended by VA in 1956 to provide, in pertinent part:

> While appeals should not be invited, it is important that the
> statutory right of appeals be in nowise restricted. Whenever a
> claimant ***expresses dissatisfaction*** following rating or other
> adjudicative action, it should be determined whether there has been
> procedural, regulatory, or factual error in adjudication or other
> circumstances warranting further development or corrective action.
> Unless it is determined that there is entitlement to substantially all
> benefits sought, the veteran should be furnished with VA Form 1-9 . .
> . , together with the necessary instructions relative to its
> completion, without effort to dissuade him from the presentation of a
> formal appeal.

Manual 8-5 (emphasis added). The Court notes that the precursor to 38
U.S.C. § 4005 (1958) was 38 U.S.C. § 3305 (1957) and that, prior to
1957, this provision existed in executive orders codified as VA
Regulation No. 2 from March 1933 and No. 2(A) from July 1933; these four
provisions are identical in substance, as is relevant to the instant
appeal (VA Regulation No. 2 mandated that applications for review on
appeal be filed within six months, but the other three provisions
contained one-year filing deadlines). Therefore, when VA, in Manual 8-5,
wrote in 1956 a regulation under the heading of \"Informal Appeals\"
that required only that the veteran ***\"express\[\]
dissatisfaction\"*** with an RO decision, VA was interpreting the
then-extant VA Regulation No. 2 and the subsequent statutes codified in
sections 3305 in 1957 and 4005 in 1958. Because there were no amendments
to the Manual in 1958 (Resp. at 7 n.1), the Court finds that VA\'s
interpretation is controlling, *see Chevron U.S.A., Inc. v. Natural Res.
Def. Council, Inc.*, 467 U.S. 837, 843-45 (1984) (establishing that
where statute does not directly address precise question at issue, Court
should follow agency regulation as long as \"based on a permissible
construction of the statute\" and not \"arbitrary, capricious, or
manifestly contrary to the statute\"); *cf. Brown v. Gardner*, 513 U.S.
115, 122 (1994) (holding that long-standing agency interpretations that
have not been subject to judicial review are not due deference simply
because of their longevity), and that the veteran expressed, in his own
words, that he was dissatisfied with the RO decision when he stated that
his claim \"was turned back\" and that he \"should be able to get
something to justify \[his disability\]\". R. at 56; Manual 8-5.
Therefore, the Court agrees with the Board\'s implicit determination
that the appellant complied with 38 U.S.C. § 4005(d) (1958).

***2. Compliance with Section 4005(e)***

The parties disagree over whether subsection 4005(e) is mandatory or
permissive, because it details that the application for review
\"***should*** contain specific assignments of the alleged mistake of
fact or error of law\". 38 U.S.C. § 4005(e) (1958). The Secretary argues
that the provision states a mandatory condition (Br. at 11-12), whereas
the appellant counters that \"should\", together with the clause,
\"\[a\]ny application which is insufficient ***may*** be dismissed\",
allows for discretion on the part of the VA adjudicator (Reply Br. at
3). Although the provision\'s plain meaning strongly suggests that a
discretionary authority is granted, the Court need not reach that issue,
because, as the Board determined, we hold that the appellant\'s 1959
correspondence satisfied any potential requirements under section
4005(e), which directed that the veteran should make \"specific
assignments of the alleged mistake of fact ***or*** error of law in the
adjudication of the claim\". 38 U.S.C. § 4005(e) (1958) (emphasis
added). Speaking about his back condition, the veteran asserted in his
1959 correspondence: \"I feel that I should be able to get something to
justify it because I was never bothered with my back until after I had
already served fourteen months of my enlistment period.\" R. at 56. The
veteran\'s statement is sufficient to constitute an \"alleged mistake of
fact,\" i.e., that his back injury was aggravated by service.
Furthermore, this statement might also be sufficient to be considered an
\"alleged . . . error of law\", i.e., that the Board erred in not
awarding service connection, but because we find an \"alleged mistake of
fact\", the Court need not reach that question.

***3. Board\'s Construction of the Status of the 1959 Letter***

For purposes of our analysis of the Board\'s determination that the 1959
letter constituted a claim to reopen, we assume, arguendo, that the
Secretary is correct in his assertion that the appellant, within the
one-year period after the RO decision, could have filed a claim to
reopen. Resp. at 1-2. The Court will also assume, arguendo, that
although the letter was not accompanied by new evidence, it met the
applicable statutory and regulatory requirements of a claim to reopen,
*see* 38 U.S.C. § 4004 (1959); 38 C.F.R. § 19.5 (1956). Because, as
determined in parts III.A.1. and III.A.2., above, and as the Board
determined, the 1959 letter satisfied all requirements and criteria for
an application for review on appeal, we must determine whether the Board
erred in its June 2000 decision when it failed to so construe the 1959
letter and instead concluded that the 1958 RO decision had become final.
R. at 8-9.

With regard to the Secretary\'s duty to construe liberally law,
regulation, and papers submitted by the appellant at the time of the RO
and BVA decisions, the Secretary concedes:

> The theories of \"liberal construction\" and \"interpretive doubt\"
> would have compelled the . . . RO to construe \[the\] \[a\]ppellant\'s
> written submissions in the light most favorable to the veteran within
> the confines of law. The pro-claimant aims of the adjudicative system
> would have compelled the RO to take action most beneficial to \[the\]
> \[a\]ppellant, given the circumstances presented. However, these
> theories cannot be used to circumvent or supercede the clear statutory
> requirements imposed by Congress.

Resp. at 3; *see also* 38 C.F.R. § 3.63 (1956) (noting the \"defined and
consistently applied policy of the Veterans\' Administration to
administer the law under a broad and liberal interpretation consistent
with the facts shown in each case\"). Because of our holding that the
1959 letter met the criteria for an application for review on appeal, we
reject the Secretary\'s argument that the rule of liberal construction
is not implicated in this case and we also hold that the BVA erred by
failing both to apply that rule and to find, therefore, that the 1959
letter constituted an application for review on appeal, the
determination that was more favorable to the veteran. We next consider
the effect of this holding.

***B. Effect of Finding that 1959 Letter Constitutes an Application for
Review on Appeal***

\"\[W\]here VA has failed to procedurally comply with statutorily
mandated requirements, a claim does not become final for purposes of
appeal to the Court.\" *Tablazon*, *supra*. In *Tablazon*, the Court
concluded: \"\[B\]ecause the RO did not furnish the appellant with an
SOC, he was unable to file a formal appeal to the BVA, and the . . .
\[RO\] decision never became final.\" *Ibid.* In the instant case, the
veteran submitted an application for review on appeal, but the RO never
took further action in response to that document, which had placed his
claim in appellate status. He was not sent a VA Form 1-9, as required by
the VA procedures then enumerated in Manual 8-5, nor did he receive a
further BVA decision regarding his claim. *See* R. at 1-313. Therefore,
as the Court held in *Fenderson v. West*, this claim is, \"as a matter
of law, \[an\] original claim\[\] that \[was\] placed in appellate
status by \[an\] NOD\[\] \[(here, an application for review on appeal)\]
expressing disagreement with \[an\] initial rating award\[\] and never
ultimately resolved until the Board decision on appeal\". *Fenderson*,
12 Vet.App. 119, 125 (1999); *see also Holland v. Gober*, 10 Vet.App.
433, 436 (1997) (per curiam order) (vacating BVA decision and remanding
matter where VA failed to issue SOC after claimant submitted timely
NOD); *cf. Woods v. Gober*, 14 Vet.App. 214, 221 (2000) (remanding
EED-claim issue when RO failed to notify appellant of its decision and
appellant\'s claim therefore remained open). In other words, because
that 1958 claim was still open in January 1997 when the Board, issuing
its first decision on this matter, reopened his claim and remanded it to
the RO and in June 1997 when the RO awarded service connection for his
back condition (R. at 219-22), the veteran\'s original
service-connection claim is part of the current claim stream. *See
Fenderson*, *supra*. The RO\'s 1960, 1986, and 1988 denials of reopening
for lack of new and material evidence were not relevant to the continued
appellate status of the veteran\'s still unawarded claim.

Where a veteran applies for benefits within one year after the date of
discharge, the effective date of an award of \"disability compensation\"
is the day following the date of discharge. 38 U.S.C. § 5110(b)(1). In
the instant case, the veteran was discharged from service on December
20, 1957 (R. at 37), and, as the Board found (R. at 4), his application
for benefits was received by the RO in February 1958 (R. at 42), well
within the one-year deadline. *See* 38 U.S.C. § 5110(b)(1). Under
section 5110(b)(1), there is no basis in the record on appeal (ROA) for
an effective date of the award of service connection for the
appellant\'s back condition other than the day after the date of
discharge, *see Perry (Earl) v. West*, 12 Vet.App. 365, 369 (1999)
(specifying proper effective date and reversing BVA decision and
remanding matter for assignment of that effective date); however,
because it is possible that not all of the material that may bear on
this question was included in the ROA, the Court will vacate the Board
decision and remand the matter to the Board to assign an appropriate
effective date.

Unless the Board concludes on remand, based on material not in the ROA,
that an effective date of the day after the date of discharge is not
warranted, the Board must consider two matters: First, the Board must
consider whether an award of staged ratings is appropriate under
*Fenderson*, *supra* (holding that Board may award staged ratings in
adjudicating \"assignment of an initial rating for a disability
following an initial award of service connection for that disability\");
*cf. Francisco v. Brown*, 7 Vet.App. 55, 58 (1994) (finding no Board
error where Board focused on most recent medical evidence in claim for
increased disability rating not part of adjudication of initial
service-connection award). Second, the Board should consider whether
section 5110 requires the assignment of a rating of at least 10%,
effective from the day after the date of discharge. *Compare* 38 U.S.C.
§ 5110(b)(1) *with* 38 U.S.C. § 5110(b)(2). Specifically, the Court
notes that section 5110(b)(2) requires that the \"effective date of an
award of increased compensation\" be the \"***earliest date*** as of
which it is ascertainable that an increase in disability had occurred\",
whereas section 5110(b)(1) requires that the \"effective date of an
award of ***disability*** ***compensation***\" be the day after the date
of discharge, if the veteran meets the one-year filing deadline. The
difference in the statutory language might suggest that although the
effective date for an ***increase in compensation*** depends on the date
of the increase in disability, in determining the effective date for an
initial award of ***disability compensation*** where application
therefor is made within the year after discharge, such
***compensation*** shall be paid as of the day after the date of
discharge, and, therefore, as of that date, actual ***compensation***
must be paid; in other words, as of the day after the date of discharge,
the claimant must receive at least a 10% disability rating, which is the
minimum rating under which a claimant receives \"disability
compensation\". 38 U.S.C. § 5110(b)(1), (b)(2).

**IV. Conclusion**

Upon consideration of the foregoing analysis, the ROA, and the
submissions of the parties, the Court reverses the June 15, 2000, BVA
decision and remands the matter for the assignment of (1) an effective
date for the initial award of service connection and (2) a rating or
ratings, as appropriate. On remand, the Board is to provide expeditious
adjudication and issuance of a decision supported by an adequate
statement of reasons or bases, *see* 38 U.S.C. §§ 1131, 5110(b)(1),
7104(a), (d)(1); 38 U.S.C. § 4005(d), (e) (1958); 38 C.F.R. § 19.2
(1956); *Fenderson*, *supra*, and *Fletcher v. Derwinski*, 1 Vet.App.
394, 397 (1991) (noting that \"\[t\]he Court expects that the BVA will
reexamine the evidence of record, seek any other evidence the Board
feels is necessary, and issue a timely, well-supported decision in this
case\"), all consistent with this opinion and in accordance with section
302 of the Veterans\' Benefits Improvements Act of 1994, Pub. L. No.
103-446, § 302, 108 Stat. 4645, 4658 (found at 38 U.S.C. § 5101 note)
(requiring Secretary to provide for \"expeditious treatment\" for claims
remanded by BVA or the Court) \[hereinafter VBIA § 302\]; *see
Vargas-Gonzalez v. Principi*, 15 Vet.App. 222, 225-30 (2001) (holding
that VBIA § 302 applies to all elements of claim remanded by Court or
Board), and with all applicable law and regulation. *See Allday v.
Brown*, 7 Vet.App. 517, 533‑34 (1995). On remand, the appellant will be
free to submit additional evidence and argument on the remanded claim in
accordance with *Kutscherousky v. West*, 12 Vet.App. 369, 372-73 (1999)
(per curiam order) (concluding that an appellant is entitled, until 90
days after Board mails postremand notice to appellant, to submit
additional evidence and argument or to request hearing on appeal at
which appellant may submit new evidence), and all applicable law and
regulation. The Court notes that a remand by this Court or by the Board
confers on an appellant the right to VA compliance with the terms of the
remand order and imposes on the Secretary a concomitant duty to ensure
compliance with those terms. *See Stegall v. West*, 11 Vet.App. 268, 271
(1998). A final decision by the Board following the remand herein
ordered will constitute a new decision that, if adverse, may be appealed
to this Court only upon the filing of a new Notice of Appeal with the
Court not later than 120 days after the date on which notice of the
Board\'s new final decision is mailed to the appellant. *See Marsh* *v.
West*, 11 Vet.App. 468, 472 (1998).

REVERSED AND REMANDED.