# Hazan v. Gober > United States Court of Appeals for Veterans Claims · November 14, 1997 · 10 Vet. App. 511 URL: https://www.frixlaw.com/law-library/cases/8167305 ## Case - **Full name:** Sol J. HAZAN v. Hershel W. GOBER, Acting Secretary of Veterans Affairs - **Court:** United States Court of Appeals for Veterans Claims - **Decided:** November 14, 1997 - **Citations:** 10 Vet. App. 511; 1997 U.S. Vet. App. LEXIS 1036; 1997 WL 712959 - **Precedential status:** Published - **Opinion:** Concurring in part by Away - **Judges:** Away, Holdaway, Kramer, Steinberg - **Cited by:** 54 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8167305 ## How later opinions describe it (automated extraction) - holding that where an unappealed final decision is determinative of an issue, an appellant is collaterally estopped from “relitigating the same issue based upon the same evidence, albeit for a different purpose” - noting that, under section 5110(b)(2), which provides that the effective date of an award of increased compensation shall be the earliest date of which it is ascertainable that an increase in disability had occurred, “the only cognizable ‘increase’ for this purpose is one to t… - noting that, under section 5110(b)(2) which provides that the effective date of an award of increased compensation shall be the earliest date of which it is ascertainable that an increase in disability had occurred, "the only cognizable 'increase' for this purpose is one to th… - noting that, under § 5110(b)(2) which provides that the effective date of an award of increased compensation shall be the earliest date of which it is ascertainable that an increase in disability had occurred, "the only cognizable 'increase' for this purpose is one to the next… - holding that for effective date purposes, “the application ... must be an application on the basis of which the increased rating was awarded” ## Opinion text HOLD AWAY, Judge, concurring in part and dissenting in part: I agree with the majority opinion except insofar as it remands for a determination of the “earliest ascertainable date that the increased rating was ‘ascertainable’ within the meaning of section 5110(b)(2),” and potentially requires, the Board to “determine whether the language ‘within one year from such a date’ in 5110(b)(2) ... permits or precludes the assignment of an effective date earlier than April 27, 1990.” Part II.A.l.d, swpra. By statute the Court is required to “decide all relevant questions of law, interpret constitutional, statutory, and regulatory provisions, and determine the meaning or applicability of the terms of an action of the Secretary.” 38 U.S.C. § 7261 (a)(1). Yet the majority would have the Board decide issues of statutory interpretation which are more appropriately decided by the Court. In the context of section 5110(b)(2), the term “earliest ascertainable date” means the date on which sufficient evidence existed to prove that a disability had increased. In Wood v. Derwinski, 1 Vet.App. 367 (1991), the Court relied on what is now § 5110(b)(2) to remand for determination of the date an increased disability became ascertainable. The Court then briefly explained how to “ascertain” that date from the evidence. Observing that the Board had received the results of January 1987 examinations in May 1987, the Court suggested that the records “would seem to rather conclusively establish January 1987 as the latest date on which the extent of appellant’s disability was ascertainable.” However, the Court observed that there was “also evidence suggesting an earlier date,” and the BVA was instructed to consider two earlier reports, dated July 1986 and June 1984, that might indicate that the disability increased by either of those dates. Id. at 369. Although the Court pronounced no formal definition of the word “ascertainable” in its decision, its instructions to the. Board assumed that “earliest ascertainable date” meant the date when probative reports were prepared, in other words, the day that sufficient evidence came to exist which could prove a disability had increased. In Wood, supra, it meant that the earliest ascertainable date was the date of the earliest examination indicating total and permanent unemployability. The interpretation of section 5110(b)(2) expressed in Wood is supported by the subsection’s context. Section 5110(a) outlines the general rule that an effective date must be “fixed in accordance with the facts found.” Section 5110(b)(2), an exception to the general rule, uses different words — “the earliest date as of which it is ascertainable that an increase in disability had occurred” — suggesting congressional intent to communicate a different meaning. Therefore, the use of “ascertainable,” rather than “facts found,” implies that Congress did not mean for a retroactive effective date to be established by looking at the evidence and extrapolating backward based on the facts found therefrom. Instead, the effective date should be the date when sufficient evidence existed to find that the disability had increased. In applying section 5110(b)(2) to the instant case, the earliest ascertainable date of a disability increase is the date of Dr. Kueera’s report, April 1990. The majority opinion shows that Dr. Hazan’s testimony in August 1989 was insufficient on its own, or in combination with all previously existing evidence, to prove that Dr. Hazan’s disability had increased. See part II.A.1, supra. Therefore, because no more material evidence came into existence until Dr. Kucera prepared his report in April 1990, the earliest date that an increased disability was ascertainable was *526 April 1990. Since the Board already awarded an effective date of April 29, 1990, remand to decide the earliest ascertainable date is moot. Accordingly, I respectfully dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8167305. Public record. Not legal advice.