CAVC Case 94-557: Back

A June 1979 RO decision granted a 30% rating for service-connected congestive heart failure, effective on July 15, 1978, and concluded that CDD and related muscle atrophy were not service connected.

The Board noted that the BVA's 1981 decision had been a final disallowance of 7 the claim.

Additionally, as to a claim first raised in the appellant's brief -- that the BVA decision failed to address a reasonably raised claim for total disability on the basis of individual unemployability (TDIU) -- the Secretary has proposed that the TDIU claim be remanded (see Secretary's Brief (Br.

Thus, this appeal presents two major issues: (1) Whether the Board erred in the effective date it assigned for the veteran's increased rating for CDD; and (2) whether the Board erred in 8 determining that his claim for an increased rating for congestive heart failure was not properly before the Board.

at 2-12) and prior to the March 1990 BVA decision demonstrated an earlier effective date and that this is evidence that the RO and the Board failed to consider in the proceedings leading to the BVA decision on appeal.

196, 200 (1992) (although increased rating was based upon evidence submitted subsequent to application for increased rating, Board erred in not considering evidence about status of condition during one-year period prior to application); 38 U.

prior to filing of claim, Board's setting of November, rather than October, 1984 effective date was clearly erroneous); cf.

273, 283 (1996) (in claim to reopen on the basis of new and material evidence, if evidence is "new" and "probative", then VA must determine "in light of all the evidence of record, [whether] there [is] a reasonable possibility that the outcome of the claim on the merits would be changed" (emphasis added)).