Buchert v. Shinseki, 2011-7046
| Decision Date | 08 June 2011 |
| Docket Number | 2011-7046 |
| Parties | FRANCIS E. BUCHERT, Claimant-Appellant, v. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Federal Circuit |
NOTE: This disposition is nonprecedential
Appeal from the United States Court of Appeals for Veterans Claims in case no. 08-3271, Judge Lawrence B. Hagel.
FRANCIS E. BUCHERT, of Grand Prairie, Texas, pro se.
MICHAEL D. SNYDER, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent-appellee. With him on the brief were TONY WEST, Assistant Attorney General, JEANNE E. DAVIDSON, Director, and MARTIN F. HOCKEY, Jr. Of counsel on the brief were DAVID J.BARRANS, Deputy Assistant General Counsel, United States Department of Veterans Affairs, of Washington, DC.
Before LOURIE, Linn, and DYK, Circuit Judges.
Francis E. Buchert ("Buchert") appeals from a decision of the United States Court of Appeals for Veterans Claims ("Veterans Court"). The Veterans Court affirmed a decision of the Board of Veterans' Appeals ("Board"), which denied entitlement to an effective date earlier than June 11, 1997, for disability compensation for a tender and painful scar in the right rib area. Buchert v. Shin-seki, No. 08-3271 (Vet. App. Aug. 17, 2010). We dismiss.
Buchert served on active duty in the United States Navy from May 1953 to July 1956 and from May 1958 to May 1962. In May 1967, the regional office of the Department of Veterans Affairs ("VA") awarded Buchert disability benefits, with a 10% disability rating, for residuals of resection of the tenth rib with peripheral nerve damage. Buchert later sought an increased disability rating for that condition, which the VA denied. Buchert appealed the VA's decision to the Board, which awarded a separate 10% disability rating for a tender and painful scar and remanded the matter to the VA to determine an appropriate effective date. Under the applicable statute and regulation, the effective date of an award of compensation is the "date of receipt of the claim." 38 C.F.R. § 3.400; see also 38 U.S.C. § 5110(a). The veteran may, however, be entitled to an earlier effective date where there is evidence that an increase in disability occurred within the one-year period preceding the date of a claimfor increased rating. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). The date of a VA medical examination which demonstrates service connected disability is considered the date of an informal claim 38 C.F.R. § 3.157. Here, the VA assigned an effective date of June 11, 1997, because a VA medical examination on that date showed that Buchert experienced pain and tenderness related to his scar. Buchert appealed, contending that he was entitled to an earlier effective date.
On appeal, the Board denied Buchert's claim of entitlement to an earlier effective date because it found that "no treatment records dated prior to June 11, 1997, showed the presence of a tender and painful scar . . . ; therefore, none of these records amount[ed] to an informal claim." In re Buchert, No. 05-30 027, slip op. at 5 (Bd. Vet. App. Jan. 15, 2008). Buchert appealed the Board's decision to the Veterans Court. The Veterans Court affirmed the Board's decision, finding that Buchert had not established the existence of an earlier informal claim or evidence of an increase in disability within the year preceding the 1997 VA examination. The court also concluded that the Board's finding regarding the VA's satisfaction of its duty to assist was not clearly erroneous, noting that the VA made reasonable efforts to obtain relevant medical records, and where it was unable to do so, it was due to Buchert's failure to provide the VA with information necessary to obtain the records (e.g., a signed medical record release). Additionally, the court concluded that the Board did not err in failing to give...
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