**UNITED STATES COURT OF VETERANS APPEALS**

No. 90-858

[James W. Quarles, Appellant,]{.smallcaps}

[v.]{.smallcaps}

[Edward J. Derwinski,]{.smallcaps}

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

On Appeal from the Board of Veterans\' Appeals and

On Appellee\'s Motion for Summary Affirmance

(Submitted June 28, 1991 Decided August 19, 1992 )

*James W. Quarles*, pro se.

*Robert E. Coy*, Acting General Counsel, *Barry M. Tapp*, Assistant
General Counsel,

and *Pamela L. Wood*, Deputy Assistant General Counsel, were on the
pleadings for appellee.

Before FARLEY, HOLDAWAY, and STEINBERG, *Associate Judges*.

STEINBERG, *Associate Judge*: The pro se appellant, veteran James W.
Quarles, challenges a July 6, 1990, Board of Veterans\' Appeals (BVA or
Board) decision denying him entitlement to an effective date prior to
November 9, 1984, for an increase in the 20% service-connected
disability rating he had received for \"lumbosacral strain with
degenerative joint disease\". *James W. Quarles*, BVA 90-22275 (July 6,
1990) \[hereafter *Quarles*\]. The Court holds that the Board\'s
conclusion that November 9, 1984, is the appropriate date for the
assignment of a 20% disability rating was clearly erroneous, that the
Board failed to consider and address properly the impact of the
veteran\'s pain on the severity of his low back disability prior to
November 1984, and that the Board did not provide reasons or bases for
its findings and conclusions adequate to permit effective judicial
review. Consequently, the Court will reverse the Board\'s decision and
remand the matter for prompt readjudication and to assign the
appropriate effective date. The Court notes that this veteran\'s low
back disability was the subject of three Board remands and five Board
decisions before he received the BVA decision which forms the basis for
this appeal, a decision which, ironically, the Board characterized as
\"generous\". *Quarles*, at 4.

**I. Background**

The veteran served on active duty in the United States Army from January
1951 to February 1953. R. at 76. While in combat in Korea during the
Korean conflict, he fell into a foxhole during a night air raid and,
subsequently, developed knee and back problems which he attributed to
that event. R. at 11, 143. The record on appeal does not contain many of
the medical reports arising prior to 1982 in connection with the
veteran\'s back disability, but the record does contain descriptions in
BVA decisions of certain pre-1982 events and medical findings relating
to that disability.

During active duty in 1952, the veteran, complaining of low back pain
and discomfort, had reported to an Army medical clinic where the
examining physician had recorded \"slight local \[back\] tenderness\".
R. at 139. Approximately three months after the veteran\'s separation
from service, a May 1953 Veterans\' Administration (now Department of
Veterans Affairs) (VA) medical examination report noted a slight
narrowing of the L5 interspace of his spine (R. at 139) and slight
tenderness over the lumbosacral joint (R. at 104). *See also* R. at 144.
The veteran\'s first claim for service-connected disability compensation
for a low back disability appears to have been granted in July 1974 by
the BVA (R. at 140), and later VA Regional Office (RO) decisions make
clear that at some point the veteran did receive a 10% service-connected
disability rating for \"lumbosacral strain\" with an effective date of
May 9, 1973. R. at 21.

The first definitive diagnosis of disc disease of the lumbar spine that
appears in the record on appeal is contained in a 1975 medical
examination report prepared by a private physician. R. at 140. During
that examination, lateral bending and extension of the veteran\'s back
were restricted to half the normal range, and straight leg raising
caused back pain. In addition, the veteran experienced tenderness to
deep percussion at L4 and L5, with muscle irritability. An x-ray
evaluation of the lumbar spine revealed marked narrowing of the L4-L5
disc space and a traction spur. *Ibid.*

On November 24, 1982, the veteran submitted to the VA a Statement in
Support of Claim, seeking an increase in his then 10% disability rating
for lumbosacral strain. R. at 13. Therein, he stated: \"My back
condition is so bad I\'ve had to resort to the use of an electrical
impulse devise to ease the pain.\" *Ibid*. In support of his claim, the
veteran submitted a November 18, 1982, letter prepared by his private
physician, Dr. Rommel G. Childress, who the record demonstrates has
treated the veteran for his back disability from, at least, August 1982.
In this letter, Dr. Childress stated that he had hospitalized the
veteran in August 1982 for a thorough evaluation because of the
veteran\'s \"increasing pain in the back with pain radiating to both
thighs\". R. at 11; 6.

Dr. Childress further noted in that letter that, on November 18, 1982,
he had examined the veteran, who continued to suffer from \"excessive
problems with back pain\". R. at 6. The August 6, 1982, CT scan report
which was attached to the doctor\'s letter showed, he stated, that the
veteran \"definite\[ly\]\" suffered from a \"focally herniated disc
segment\". *Ibid*; R. at 9. The CT scan revealed \"a \[laterally\]
herniated disc at the L-4-5 level\", and x-rays revealed \"marked
narrowing of the L-4-5 space with degenerative changes\". R. at 7, 9. In
addition, there existed a \"diffusely bulging annulus at th\[at\]
level\". R. at 9. An electromyogram, also administered during the August
1982 hospitalization, showed \"neurogenic changes in the anterior
tibial, gastrocsoleus\[,\] \[sic\] and hamstring levels, indicating
L-4-5 and L-5-S-1 root irritation\". R. at 7. The diagnoses upon
discharge from the hospital, to the extent to which they are
decipherable from the record, include (1) acute and chronic low back
strain, (2) L-4-5 disc degeneration, and (3) degenerative changes of the
lumbar spine. *Ibid*. Concluding his November 18 letter, Dr. Childress
stated:

> In consideration of his back problem and knee problem, this patient
> would warrant an 85% permanent partial disability. This is based on
> his current pain, \[his\] suffering, and his very documentable disease
> process which is going on.

*Ibid*.

Dr. Childress reiterated his conclusions, with even more emphasis on the
veteran\'s back disability, in a September 29, 1983, letter (which was
not filed with the VA until September 1987) to the United States Office
of Personnel Management . R. at 126. There, based on a December 8, 1982,
examination, he stated that the veteran continued \"to have significant
back discomforts\". He concluded:

> Again, . . . I maintain that this patient\'s permanent partial
> disability is 85%. I do not expect that the patient will ever be able
> to do work that requires excessive or prolonged sitting or any
> excessive bending, stooping, or lifting.
>
> . . . .
>
> There is a possibility that if the patient attempts to do such type
> activities, the ruptured disc may manifest itself to the point that
> the patient is forced to have surgery if there are any functional
> deficits or the pain becomes intractable.

R. at 126.

On December 20, 1982, in processing the veteran\'s November 1982 claim
for an increased rating, the VA conducted a medical examination. R. at
15. Examination of the lumbar spine revealed \"disc space narrowing at
the L4-5 interspace\[\] \[and\] \[a\]ssociated bony spur formation
anterior aspect L4 and L5.\" Based on these symptoms, the VA physician
diagnosed \"\[d\]egenerative disc disease L4-5\". R. at 17. However, on
January 21, 1983, the VARO denied the veteran\'s November 1982 claim for
an increased rating for his service-connected lumbosacral strain on the
basis that his then \"currently diagnosed degenerative disc disease of
L-4 and L-5 is not etiologically related to his lumbosacral strain
diagnosed in service\". R. at 21.

(In a parallel proceeding, on May 25, 1983, the Merit Systems Protection
Board issued a decision with respect to the veteran\'s appeal of his
November 19, 1982, removal from his position as a civilian supply clerk
at the Department of Defense, Defense Logistics Agency. R. at 47. On
September 20, 1982, the Defense Depot had proposed to remove the veteran
from his position based on his physical inability to perform his duties.
The Depot defended against the veteran\'s appeal of his removal by
proffering to the Merit Board Dr. Childress\' November 1982 letter to
the VA, arguing that the veteran \"was unable to tolerate excessive
bending, overhead reaching, or prolonged sitting\", all of which were
required from a supply clerk. R. at 48. On May 25, 1983, the Merit Board
concluded that the appellant was \"physically unable\" to perform the
duties of a supply clerk and that the agency had made \"every reasonable
effort\" to reassign him. R. at 50.)

On February 3, 1984, the BVA rendered a decision denying the veteran
entitlement to an increase in his 10% disability rating for lumbosacral
strain. The Board concluded that, because the veteran\'s degenerative
disc disease was not service connected, those symptoms could not be
evaluated in relation to his lumbosacral strain. R. at 37. On April 10,
1984, the VA received from the veteran additional medical records
pertinent to his claim. R. at 38-41. It appears, from the course of the
VA\'s actions following the veteran\'s submission of these records, that
the VA construed them as an informal claim to \"reopen\[\]\" his claim
for an increased rating. R. at 44. (The VA\'s use of the term
\"reopened\" does not accurately reflect the nature of the claim since a
claim for an increased rating is a \"new claim\". *See Proscelle v.
Derwinski*, 2 Vet.App. \_\_, \_\_, No. 90-570, slip op. at 3 (U.S. Vet.
App. July 27, 1992).) Among these records is a February 27, 1984,
medical evaluation conducted by a private physician. The physician
noted: \"X-ray examination of the lumbar spine shows marked narrowing at
L-4-5 with spur formation and reactive sclerosis of the facets.\" R. at
38. Several motion tests revealed:

> He can forward flex brin\[g\]ing the fingertips to the midcalf,
> complaining of pain. He also complains of pain in the lower back with
> lateral bending and extension and has 50% restriction of motion. . . .
> \[He\] has negative straight leg raising. . . . He has pain in the
> back with Gaenslen\'s Fabere, straight leg raising and L-5 S-1 rock.
> He still shows weakness of dorsiflexion of his foot and great toe on
> the left. . . . Has decreased sensation to touch over the lateral calf
> on the left. . . . Has tenderness to deep palpation in the lower
> lumbar spine area.

*Ibid.* After evaluating the veteran\'s back, the physician concluded:
\"\[I\]t does appear this patient has degenerative disc disease with
weakness in the left lower extremity and decreased sensation. . . . It
would appear this patient is incapable of gainful employment; that he is
suffering from chronic disc disease with radiculopathy and degenerative
osteoarthritis of the left knee \-- all service incurred.\" *Ibid.*
According to the May 15, 1984, Statement of the Case, issued shortly
after the submission of the above records, on April 13, 1984, the
\"veteran was notified of the \[RO\'s\] decision\" denying him an
increased rating. R. at 44.

On May 15, 1985, the BVA again denied the veteran entitlement to an
increased rating and again declined to conclude that the veteran\'s disc
disease was related to the service-connected lumbosacral strain. R. at
56-60. On July 12, 1985, the VA apparently received a letter from the
veteran requesting that it obtain, in support of his claim for an
increased rating, his outpatient records from the VA Medical Center in
Memphis, Tennessee. R. at 70. The VA appears to have construed this
letter as a request to \"reopen\[\]\" the claim for an increased rating.
R. at 168. (Again, the VA incorrectly used \"reopen\". *See Proscelle,
supra*.) A February 21, 1985, VA outpatient note discussed several of
the veteran\'s ailments and, with regard to his back, stated a diagnosis
of \"DJD\" (degenerative joint disease) and the observation that the
veteran was wearing a \"TENS unit\" which he had stated helped the pain.
R. at 66.

On August 5, 1985, the veteran submitted additional medical records. R.
at 61-64. Among these records is a November 9, 1984, letter from Dr.
Childress \-- the basis for the effective date assigned \-- stating that
he had last examined the veteran on October 25, 1984, and had found
\"limited spine motion\" as evidenced in the examination report he had
attached to the letter. The October examination report had stated: \"The
patient\'s back mobility is limited. He can only forward flex
approximately 40 degrees. His straight leg raising is negative on the
right. It causes some discomfort in the lower back on the left.\" R. at
62. Dr. Childress\' November 1984 letter concluded: \"Because of the
patient\'s problem with his back which continues to require treatment, I
still consider the patient to be approximately 85% disabled from manual
duties requiring lifting, excessive stooping, bending and etc.\". R. at
61. The diagnosis was, as in 1982, \"acute and chronic low back strain;
lumbar disc degeneration\". *Ibid.* The RO again denied the claim for an
increased rating. R. at 70.

On July 29, 1986, the Board remanded the case to the RO for additional
development of, inter alia, the veteran\'s claim for an increased
rating; the RO was specifically to address the question of entitlement
to service connection for \"lumbar disc disease\". R. at 80. The BVA\'s
June 12, 1987, decision based on that development again ordered a remand
on the issues of disc disease and lumbosacral strain because the
previously ordered medical examination had failed to include a medical
opinion concerning whether the veteran\'s lumbar disc disease was
related to the trauma encountered during service or to the veteran\'s
service-connected lumbosacral strain. R. at 111.

On July 20, 1987, pursuant to the Board\'s instructions, the veteran
received a VA medical examination. R. at 112. That examination also did
not yield an opinion as to the relationship between the veteran\'s disc
disease and his service-connected lumbosacral strain; the physician
could not make an \"adequate evaluation\" because of the veteran\'s
\"strain phenomena\". R. at 114-15. On October 14, 1987, the RO once
more denied service connection for lumbar disc disease and continued the
veteran\'s 10% rating for lumbosacral strain. R. at 132-33.

In a March 10, 1988, written submission to the BVA, the veteran\'s
representative asserted that the RO had not complied with the remand
since the examination report did not indicate that the veteran\'s claims
folder had been reviewed and did not contain an opinion about the
relationship between the veteran\'s two conditions comprising his low
back disability. R. at 135-36. The BVA concluded in an August 1, 1988,
decision that the two back conditions could not be disassociated, and
that the disc disease was also attributable to the foxhole injury.
Therefore, it granted service connection for the lumbar disc disease.
Describing the two disabilities as one \-- a \"service-connected low
back disorder\" \-- the Board remanded the case to the RO for a
determination of whether the veteran was entitled to an increase in his
10% disability rating. R. at 143-44.

On November 23, 1988, pursuant to the BVA remand, the RO increased the
veteran\'s disability rating to 20% (deeming it \"Lumbosacral Strain
with Degenerative Joint Disease\"), with an effective date of November
9, 1984, the date of Dr. Childress\' letter. R. at 164. In a January
1989 Statement of the Case, the VA stated its reasoning for awarding the
November 9 effective date: \"The claim was reopened on July 12, 1985,
within one year of the evidence dated November 9, 1984. This evidence
from November 1984, \[sic\] was found to show the probability of
entitlement to the increased benefit.\" R. at 168.

Claiming an earlier effective date of 1982 for the 20% disability rating
for his low-back disability, the veteran appealed the RO\'s decision to
the BVA. R. at 169. The BVA, in its July 6, 1990, decision which is the
subject of the appellant\'s appeal, concluded that the 1982 records had
not shown a low back disability of the \"requisite degree\" to increase
the veteran\'s disability rating to 20% from that date. *Quarles*, at 3.
It stated that his symptoms, \"disc space narrowing, spurring, a
left-sided limp, nerve root irritation and guarded motion did not
qualify for more than a 10% disability evaluation\". *Ibid*. The Board
further stated that the level of disability exhibited in the 1982 VA
examination remained constant until November 9, 1984, the date of Dr.
Childress\' letter. *Id.* at 4. Finally, in the \"[Finding of
Fact]{.smallcaps}\" section of its decision, the Board concluded:

> The veteran\'s service-connected lumbar spine disorder was shown to be
> equivalent in severity to no more than mild intervertebral disc
> syndrome with no more than a slight limitation of motion and/or
> characteristic pain on motion prior to November 9, 1984.

*Id.* at 4.

**II. Analysis**

**A. *Clearly Erroneous Fact Finding***

Under 38 U.S.C. § 5110(b)(2) (formerly § 3010), \"\[t\]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) (1991) (to the same effect). Therefore, evidence
in a claimant\'s file which demonstrates that an increase in disability
was \"ascertainable\" up to one year prior to the claimant\'s submission
of a \"claim\" for VA compensation should be dispositive on the question
of an effective date for any award that ensues. A \"claim\" is defined
in the VA regulations, under 38 C.F.R. § 3.1(p) (1991), as \"a formal or
informal communication in writing requesting a determination of
entitlement, or evidencing a belief in entitlement, to a benefit.\"
Under 38 C.F.R. § 3.155 (1991), the submission of certain medical
records may constitute an \"informal claim\" for an increase in
disability compensation.

The BVA concluded that the veteran\'s low back disorder (by then
comprised of lumbosacral strain and degenerative joint disease) did not
become 20% disabling until November 9, 1984, the date of one of Dr.
Childress\' letters, and that, therefore, the veteran was not entitled
to an earlier effective date. Resolution of the question of whether the
Board accurately determined the effective date requires the Court to
decide whether the Board erred in its factfinding. The Court reviews
questions of fact using the \"clearly erroneous\" standard of review.
Under 38 U.S.C. § 7261(a)(4) (formerly § 4061) and *Gilbert v.
Derwinski*, 1 Vet.App. 49 (1990), the Court must set aside a finding of
fact as clearly erroneous when the Court is left with a definite and
firm conviction, after reviewing the entire evidence, that a mistake has
been committed. The Court may reach that conclusion only if there is no
\"\'plausible basis in the record\'\" for the BVA findings at issue.
*Gilbert*, 1 Vet.App. at 52-53 (quoting *Anderson v. City of Bessemer
City, N.C.,* 470 U.S. 564, 574 (1985)); *see Moore (Robert) v.
Derwinski*, 1 Vet.App. 356, 358 (1991). Thus, if there were in the
record in this case a plausible basis for the BVA\'s finding that the
evidence in the veteran\'s file did not, prior to November 9, 1984,
satisfy the criteria for a 20% rating, that finding would necessarily
stand.

In determining whether or not a plausible basis exists for the Board\'s
decision, the Court has evaluated (1) whether symptoms warranting a 20%
rating were ascertainable prior to November 9, 1984, and (2) even if
symptoms warranting a 20% rating were ascertainable earlier, whether a
***claim*** had been submitted within a year of their manifestation.
Under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5295 (1991), a 10%
disability rating for lumbosacral strain will be awarded if the claimant
experiences \"characteristic pain on motion\"; a 20% disability rating
will be awarded if the lumbosacral strain is characterized by \"muscle
spasm on extreme forward bending, and loss of lateral spine motion,
unilateral, in standing position\". And 38 C.F.R. § 4.21 (1991)
provides: \"In view of the number of atypical instances\[,\] it is not
expected . . . that all cases will show all the findings specified \[in
the Diagnostic Code\]\".

Since the record on appeal does not contain the purported July 12, 1985,
claim for an increased rating, on which the Board relied in determining
an effective date, the Court cannot be confident that it is aware of all
of the claims submitted in this case. Nevertheless, July 12, 1985,
serves as one date of claim by which to gauge the evidence to which the
Board could have turned to determine the earliest date when the
veteran\'s symptoms warranting the 20% rating became ascertainable.
Another such date is April 10, 1984, another is November 24, 1982, and
even earlier such dates, of some of which the Court is unaware, may
exist.

Based on the Court\'s awareness of only the 1985, 1984, and 1982 claims
filed in this case, we are able to conclude that the BVA\'s finding that
the earliest effective date could not precede November 9, 1984, was
clearly erroneous. The claim the Board found pertinent to its decision
was the July 12, 1985, claim. The Board found that on November 9, 1984,
prior to the submission of that claim and within one year of its filing,
the veteran\'s symptoms did satisfy the 20% rating criteria. The
November 9 letter by Dr. Childress, the veteran\'s private treating
physician, was based on an October 25, 1984, examination of the
veteran\'s back. The doctor\'s October 25 examination report, attached
to the letter, stated that the veteran\'s back mobility was limited,
that he could forward flex only 40 degrees, and that straight leg
raising was \"negative on the right\" and caused some discomfort on the
left. R. at 62. Dr. Childress concluded that because of the veteran\'s
back problems, he \"***still***\" considered him to be \"approximately
85% disabled\" from activities requiring lifting, excessive stooping,
and bending. R. at 61 (emphasis added). His diagnosis was \"acute and
chronic low back strain; lumbar disc degeneration\". R. at 62. The
Board, therefore, was clearly erroneous in finding November 9, 1984, the
earliest date upon which the veteran\'s disability rating warranted an
increase to 20% since the symptoms described in the November 9, 1984,
letter had existed at least as early as October 25, 1984. Thus, the
veteran was entitled to an effective date at least as early as October
25, 1984.

**B. *Inadequate Reasons or Bases***

Because the Board\'s decision is also deficient in the reasons or bases
proffered for the implicit rejection of other potential dates (discussed
below) posed by the evidence of record, and because there may exist
other, earlier dates which fell within one year of a claim\'s
submission, and upon which the veteran\'s 20% disability became
ascertainable, the Court will remand the matter to the Board for a
determination, based on a review of the veteran\'s complete claims file,
of the earliest effective date that may be granted and for an
appropriate statement of reasons or bases for the Board\'s
determination. *See Wood (Clarence) v. Derwinski*, 1 Vet.App. 367
(1991).

It is well established that the BVA must provide in writing the reasons
or bases for its findings and conclusions on all material issues of fact
and law. 38 U.S.C. § 7104(d)(1) (formerly § 4004); *see Gilbert*, 1
Vet.App. at 56-57. Where, as here, the Board fails to fulfill this
obligation, the Court is precluded from effectively reviewing the
adjudication, and the claimant is unable to understand the Board\'s
responses to the arguments he or she has presented to the Board. *Ibid.*
The Board\'s decision here has left the Court with few means to decipher
any rationale as to why the Board did not choose an effective date as
early as February 1984, August 1982, as the veteran has contended, or
even May 1953 (provided that a claim was submitted within a year) when,
as the BVA stated in 1988, evidence of \"lumbar disc disease\" had been
detected. R. at 144.

The diagnosis made and the symptoms described in the November 1984
letter (based on the October 25, 1984, examination) are not dissimilar
from the February 27, 1984, private physician\'s report which also
included a diagnosis of \"degenerative disc disease\" and symptoms
similar to those later described by Dr. Childress, such as negative
straight-leg raising, pain on straight-leg raising, and restriction of
motion. Thus, the degenerative disc disease, for which the veteran
obtained the higher rating, was ascertainable at least as early as
February 27, 1984. There is no contradictory evidence in the file with
respect to this time period, and yet the Board never addressed the
February 1984 examination. The Board erred in its failure to explain its
apparent rejection of this evidence. *See Gilbert*, 1 Vet.App. at 59
(among the reasons or bases for its decision, BVA must address
credibility or probative value of evidence submitted by or on behalf of
veteran).

That the veteran had submitted a claim for an increased disability
rating within one year of that examination, so as to entitle him to an
effective date earlier than October 25, 1984, seems apparent from the
record on appeal. Under 38 C.F.R. § 3.155, any communication or action
indicating a claimant\'s intent to apply for a VA benefit may be
considered an \"informal claim\", so long as it identifies the benefit
sought. Upon receipt of the informal claim, VA will, according to the
regulation, forward to the claimant a formal claim form. So long as that
form is submitted to VA within one year of the filing of the informal
claim, the date of the claim will be the date of receipt of the informal
claim. Although the February 1984 examination occurred more than one
year prior to the July 12, 1985, claim, it appears, from the record on
appeal, that on April 10, 1984, following the February 3, 1984, BVA
decision denying an increase, additional medical records (R. at 38-41)
were filed, including the February 27, 1984, examination report, which
prompted an RO decision on April 13, 1984 (R. at 44), and which resulted
in the BVA\'s issuance of another decision \-- on May 15, 1985 (R. at
56). It seems clear that, under 38 C.F.R. § 3.155, the VA construed as
an \"informal claim\" the medical records submitted on April 10, 1984,
since a rating decision was made based on their submission, although
there is no indication that the VA ever sent the appellant a formal
claim form, as directed by 38 C.F.R. § 3.155, before rendering these
decisions. Since the Court cannot conclude that the VA fulfilled the
obligation imposed by section 3.155(a) to \"forward\" to the appellant
an \"application form\" once it had received his informal claim, the
Court holds that the one-year filing period for such application did not
begin to run, and VA, therefore, may not now assert upon remand that,
based on the veteran\'s failure to file the appropriate \"application
form\" following the submission of the April 1984 informal claim, the
informal claim is not a cognizable claim for effective-date purposes. In
sum, the one-year period for filing a formal claim was never triggered,
and the informal claim must be accepted as the application for purposes
of establishing the effective date under 38 U.S.C. § 5110(b)(2); 38
C.F.R. § 3.400(o)(2). *See Kuo v. Derwinski*, 2 Vet.App. \_\_, \_\_, No.
91-1053, slip op. at 7 (U.S. Vet. App. Aug. 4, 1992) (60-day period for
filing formal appeal to BVA \"did not commence to run\" where VA did not
mail to appellant statement of the case (SOC), as required by law,
because law specifies that 60-day period runs from mailing of SOC).

Consequently, the February 27, 1984, examination came within a year of a
claim\'s filing and, therefore, is an appropriate effective date
provided that the appellant\'s low back disability satisfied the 20%
criteria by that time. On remand, the Board must take into account (1)
the alternative nature of the rating criteria, under 38 C.F.R. § 4.71a
(DC 5925), which are necessary to establish a 20% disability rating for
lumbosacral strain; and (2) the VA policy outlined in 38 C.F.R. § 4.21
with regard to ratings, in which it is stated that VA does not require
in all cases that all of the symptoms specified in a particular
Diagnostic Code be exhibited by a claimant before he or she may receive
a compensable rating.

In asserting to the Board that the veteran was entitled to an effective
date in 1982 for an increased rating, he and his representative pointed
to his removal from his job in 1982 due to his back disability (R. 169)
and his hospitalization in August 1982 for \"*increasing*\" back pain
(R. 172) (emphasis in original). The Board erred in providing only a
cursory statement with respect to these arguments. Although the Board
noted in its discussion that the veteran had lost his job in 1982 \"due
to disability\", it drew the cursory conclusion that \"no specific and
contemporaneous manifestations of lumbar spine disablement were shown
which would have supported an increased rating at that time\".
*Quarles*, at 4. However, during the course of the veteran\'s appeal to
the Merit Systems Protection Board concerning his removal, both sides
stipulated that he was removed from his post because of physical
disability (R. 48), and, in defense of its position, the Defense Depot
relied on Dr. Childress\' November 1982 letter. Although, at the time of
the September 20, 1982, proposed removal of the veteran from his job,
Dr. Childress had not yet made his November 1982 examination and written
the letter arising therefrom, there certainly existed evidence of the
severity of the veteran\'s disability as early as August 6, 1982, when
he was hospitalized for increasing back pain. R. at 9; *see also* R. at
7, 8.

Consequently, the Board had before it not only the statements of the
veteran and his employers that by September 1982 his physical disability
prevented him from performing his job, but also had medical records from
the August 1982 hospitalization and from the November 1982 examination.
Therefore, its unsupported conclusion that there were \"no specific and
contemporaneous manifestations of lumbar spine disablement\" to
establish an effective date in 1982 for the increased rating fails to
respond adequately to the appellant\'s argument that the 1982 removal
from his job was significant in the determination of an effective date.
*See Gilbert*, 1 Vet.App. at 56 (Board must respond to arguments
advanced by appellant); *Hatlestad v. Derwinski*, 1 Vet.App. 164, 169
(1991) (*Hatlestad I*).

The Board\'s failure to discuss in any detail the significance of the
veteran\'s removal from his job because of his disability points to its
implicit rejection of the medical records from August and November 1982.
The only indication that the 1982 hospitalization or Dr. Childress\'
November 1982 examination and letter were even considered by the Board
is the following broad and cursory statement: \"The available clinical
records dated in 1982 show evidence of degenerative disc and joint
disease of the lumbar spine, but not to the requisite degree for the
assignment of a 20 percent disability rating\". *Quarles*, at 3. The
only medical record from 1982 that the Board discussed at all was a
December VA examination in which disc space narrowing of the L4-5
interspace and degenerative disc disease were noted. The Board, in
articulating its analysis of the evidence presented, is required to
address the \"\'credibility or probative value of the evidence submitted
by or on behalf of the veteran\'\". *Hatlestad I*, 1 Vet.App. at 169
(quoting *Gilbert*, 1 Vet.App. at 59); *Ohland v. Derwinski*, 1 Vet.App.
147, 149 (1991). This the Board did not do with respect to the August
1982 hospitalization records and the November 1982 examination and
ensuing letter. In concluding that the veteran had not demonstrated in
1982 the \"requisite degree\" of disability to merit an increased
rating, the Board also failed to explain how the December 1982 VA
examination, on which it relied, was significant to that conclusion and
what aspects of the veteran\'s disability had changed between 1982 and
1984 enough to warrant an increase only then. The basis for the Board\'s
distinction between the symptoms manifested during those two years
cannot be discerned from its cursory statement that \"\[t\]he disability
picture remained basically the same from \[December 1982\] to November
9, 1984\", *Quarles*, at 4. Dr. Childress\' 1982 and 1984 letters are
strikingly similar, and he used \"still\" in his 1984 evaluation. The
November 18, 1982, letter stated that the veteran continued to suffer
from \"excessive problems with back pain\" and the attached August 1982
hospitalization records show that Dr. Childress hospitalized the veteran
for the increasing pain. He emphasized these hospital records in his
November 1982 letter. There, the CT scan, x-ray, and electromyogram
findings led to the diagnoses of chronic low back strain, L4-5 disc
degeneration, and degenerative changes of the lumbar spine. Dr.
Childress concluded his November 1982 letter, as well as his recounting
of the results of his December 8, 1982, examination, by stating that the
veteran\'s pain and \"disease process\" had rendered him 85% disabled.
R. at 7, 126.

Although motion tests, which were not discussed in the 1982 letter,
appear to have been conducted in October 1984 and described in the
November 9, 1984, letter, the physician\'s conclusion was the same. Dr.
Childress reiterated his concluding remarks contained in the 1982 letter
and stated: \"I ***still*** consider the patient to be 85% disabled from
manual duties requiring lifting, excessive stooping, \[and\] bending\".
R. at 61 (emphasis added). As a prelude to those remarks, Dr. Childress
also stated that the veteran \"has previously documented severe problems
with his back that showed the herniation of disc material at his lumbar
level. I have enclosed a copy of the CT-scan report.\" R. at 61.
Consequently, the Board should have articulated what it viewed as
significant differences between the findings in the two letters, using
independent medical authority to substantiate its conclusions. *See
Colvin v. Derwinski*, 1 Vet.App. 171, 175 (1991) (\"BVA panels may
consider only independent medical evidence to support their findings\").

Moreover, if the Board found the medical evidence from 1982
insufficient, or of doubtful weight or credibility, it was, as always,
free to supplement the record by seeking an advisory opinion, ordering
an additional medical examination, or quoting recognized medical
treatises (*see Hatlestad v. Derwinski*, 2 Vet.App. \_\_, \_\_, No.
90-103, slip op. at 7-8 (U.S. Vet. App. July 8, 1992) (*Hatlestad II*)),
to substantiate its ultimate conclusion that evidence prior to November
9, 1984, did not meet the criteria for a 20% disability rating. *Ibid.*
It is not the role of the Court to \"substitute its judgment for that of
the BVA on issues of material fact\". *Gilbert*, 1 Vet.App. at 53.
Consequently, the Court must be presented with a thorough explanation of
the Board\'s reasoning for making the above distinctions if it is to
review the Board\'s decision effectively.

However, the similarity between the veteran\'s back disabilities in 1982
and 1984 and between Dr. Childress\' letters of 1982 and 1984 highlights
an additional error of the Board \-- its failure to provide reasons or
bases why the benefit-of-the-doubt doctrine should not apply in favor of
the veteran. Under 38 U.S.C. § 5107(b) (formerly § 3007), when there
exists an \"approximate balance of positive and negative evidence
regarding the merits of an issue material to the determination of the
matter, the benefit of the doubt in resolving each such issue shall be
given to the claimant.\" *See also* 38 C.F.R. § 3.102 (1991). The Court
has previously stated that because of the \"high esteem in which our
nation\" holds its veterans, tradition, and now the law, mandate that
the benefit of the doubt belongs with the veteran. *Gilbert*, 1 Vet.App.
at 54. It is because of this high esteem, the Court has held, that the
\"reasons or bases\" requirement of 38 U.S.C. § 7104(d)(1) applies to a
Board\'s conclusion that a claimant is not entitled to the benefit of
the doubt. *Id.* at 59. Nowhere in the Board\'s decision here did it
even mention the benefit-of-the-doubt doctrine. Its implicit conclusion
that the doctrine should not have applied in favor of the veteran is
inadequate on the record before the Court. In reaching any adverse
decisions on each of the material issues discussed and referenced above,
the Board must explain why the \"preponderance of the evidence \[is\]
against the claim\". *Id.* at 54.

**D. *Discussion of Pertinent Regulations***

In light of the frequent references in the record to the veteran\'s pain
from his low back disability, and despite his failure to assert the
applicability of certain VA regulations requiring that a claimant\'s
pain be considered in evaluating the disability at issue, the Board was
required to consider the applicability of 38 C.F.R. §§ 4.40 and 4.45(f)
(1991). *See Schafrath v. Derwinski*, 1 Vet.App. 589, 593 (1991);
*Hatlestad I*, 1 Vet.App. at 167; *see also* *Douglas v. Derwinski*,
\_\_ Vet.App. \_\_, \_\_, No. 90-678, slip op. at 3-5 (U.S. Vet. App.
May 21, 1992) (*Douglas II*); *Douglas v. Derwinski*, 2 Vet.App. 103,
107 (1992) (*Douglas I*). Regulation 4.40 provides, in pertinent part,
that it is \"essential that the examination on which ratings are based\"
adequately portray the \"functional loss\" accompanying the purportedly
disabling condition which is the subject of the claim. In defining that
term, the regulation further states that functional loss may be due to
\"pain, supported by adequate pathology and evidenced by the visible
behavior of the claimant\" and that a joint \"which becomes painful on
use must be regarded as seriously disabled\". Regulation 4.45 states
that to determine the factors causing disability of the joints (one of
which is the lumbar spine, states the regulation), inquiry must be
directed toward, inter alia, \"\[p\]ain on movement\". 38 C.F.R. §
4.45(f). Thus, pain on use is as important in rating a low back
disability as is limitation of motion (see 38 C.F.R. § 4.71 (1991), DC
5295), since \"functional loss caused by either factor should be
compensated at the same rate. Hence, under the regulations, the
functional loss due to pain is to be rated at the same level as the
functional loss where flexion is impeded.\" *Schafrath*, 1 Vet.App. at
592.

The Board erred in its apparent failure to consider, or at least to
discuss, how these regulations apply to the facts presented here. In the
veteran\'s November 24, 1982, claim requesting an increase in his
disability rating, he focused on the pain his back was causing him,
stating: \"My back condition is so bad, I\'ve had to resort to the use
of an electrical impulse device to ease the pain.\" R. at 13. On
November 18, 1982, Dr. Childress stated that the veteran suffered from
\"excessive pain\". The December 18, 1982, VA medical examination upon
which the BVA relied to reject a 1982 effective date described the
veteran\'s behavior in a way which connotes that he was in pain: \"The
veteran guards back on undressing and during all maneuvers. . . .
\[T\]he veteran has a Tens unit with four electrode pads attached to the
lower lumbar region.\" R. at 18. When the veteran appealed to the BVA
the adverse January 1983 RO decision, he reiterated that he was wearing
a device \"designed to relieve the extreme pain.\" R. at 23. In Dr.
Childress\' November 9, 1984, letter, he stated that the veteran\'s
\"major discomfort at the present is with his lower back\" and that he
continued to need the Tens unit. R. at 61. \"Where, as here, the
claimant asserts to the BVA facts which would support a rating of
compensable functional disability due to pain, section 4.40 must be
applied to determine if a compensable rating is warranted.\"
*Schafrath*, 1 Vet.App. at 592.

The Board never mentioned the impact of the veteran\'s pain on the
functional loss with respect to his low back disability. The December
1982 VA examination, although discussing the veteran\'s pain, did not
discuss the impact of that pain on the functional loss in the low back.
The Board mentioned the limitation of motion found during that
examination and, despite the absence of any such notation on the
examination report, concluded that the veteran experienced \"no more
than characteristic pain on motion\". *Quarles*, at 4. The Board not
only relied on a medical examination which failed to adhere to the
regulation\'s mandate that examinations upon which ratings are based
adequately portray functional loss, but it also failed to analyze, on
its own, the effect of the veteran\'s pain on his disability, thereby
failing, as well, to make the inquiry required under section 4.45.

In addition, the Board\'s unsupported conclusion that in December 1982
the veteran had experienced \"no more than characteristic pain on
motion\" is an unsubstantiated medical conclusion since, as noted above,
the December 1982 VA examination report did not describe the impact of
the veteran\'s pain on his disability. Under *Colvin*, the BVA may rest
its findings only on independent medical evidence. *Id*. at 175.
Consequently, the Board\'s error in failing to apply the regulations
dealing with pain, with the requisite reasons or bases, is compounded by
its inclusion of its own medical opinion about the level of the
veteran\'s pain in 1982, a finding which must be set aside, pursuant to
38 U.S.C. §7261(a)(3)(A) (formerly § 4061), as \"arbitrary, capricious,
an abuse of discretion\" and \"not in accordance with law\".

**III. Conclusion**

The Board\'s conclusion that the veteran is not entitled to an effective
date prior to November 9, 1984, is a clearly erroneous finding of fact
which must be set aside. 38 U.S.C. § 7261(a)(4) (formerly § 4061). In
addition, the Board\'s unsubstantiated opinion regarding the level of
the veteran\'s back pain must be set aside, pursuant to 38 U.S.C.
§7261(a)(3)(A). An effective date of not later than October 25, 1984,
must be assigned in accordance with the facts of record.

Because the Court has found that the Board\'s analysis of the veteran\'s
symptoms arising prior to October 25, 1984, does not contain an adequate
statement of reasons or bases and is deficient in its failure to
consider or discuss the impact of the veteran\'s pain on the severity of
his low back disability prior to 1984, the Court is presented with an
inadequate record to review in connection with the question of the
appropriate effective date for the increase. Consequently, the Board\'s
decision is reversed, and the matter is remanded to the Board for prompt
readjudication of the effective-date question, in accordance with this
opinion, including a critical examination of all of the evidence of
record and a full written justification. *See Fletcher v. Derwinski*, 1
Vet.App. 394, 397 (1991). On remand, the appellant will be free to
submit additional evidence and argument on the question at issue, and
the Board will \"seek any other evidence it feels is necessary\" to the
timely resolution of this claim. *Ibid*. When all of this evidence has
been assembled, the Board must assess whether the veteran is entitled to
the benefit of the doubt with regard to an effective date in February
1984, or earlier, for his increased disability rating. *See* 38 U.S.C. §
5107(b); *Gilbert*, 1 Vet.App. at 55.

Accordingly, the motion by the Secretary of Veterans Affairs for summary
affirmance is denied. A final decision by the Board following the remand
herein ordered will constitute a new decision which 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 new BVA
decision is mailed to the appellant.

REVERSED AND REMANDED.