Citation Nr: 0018228 Decision Date: 07/12/00 Archive Date: 07/14/00 DOCKET NO. 94-47 929 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Entitlement to an effective date prior to July 14, 1993, for the award of service connection for bilateral conjunctivitis based on clear and unmistakable error (CUE) in a July 1970 RO decision. REPRESENTATION Veteran represented by: Michael E. Wildhaber, Attorney at Law ATTORNEY FOR THE BOARD K. Parakkal, Counsel INTRODUCTION The veteran served on active duty from July 1, 1966, to June 30, 1969. By a February 1995 RO decision, service connection was granted for bilateral conjunctivitis, effective from July 14, 1993. Thereafter, the veteran appealed to the Board of Veterans' Appeals (Board) for an earlier effective date for the award of service connection. By a March 1997 Board decision, the veteran's claim was denied. The veteran then appealed to the U.S. Court of Appeals for Veterans Claims (Court). In an August 1999 memorandum decision, the Court vacated the Board's March 1997 decision and remanded the matter back to the Board for readjudication. In its decision, the Court directed the Board to consider solely the issue of whether the veteran was entitled to an earlier effective date for the award of service connection for bilateral conjunctivitis based on CUE in a July 1970 RO decision. FINDINGS OF FACT 1. At the time of his March 19, 1969, discharge examination, the veteran complained of eye problems, and a physician noted that the veteran had eye trouble and was being treated for such. 2. On June 1, 1970, the RO received the veteran's initial application for service connection for an eye disorder. 3. By a July 24, 1970, RO decision, the veteran's claim of service connection for an eye disorder was denied on the premise that he did not have an eye disability at the time of his service discharge examination. 4. The RO's conclusion that the veteran did not have a chronic eye disorder at the time of his service discharge examination, on March 19, 1969, was undebatably wrong and was not reasonably supported by the evidence that was of record at the time of that decision. CONCLUSIONS OF LAW 1. The July 1970 RO decision which denied service connection for an eye disorder was clearly and unmistakably erroneous. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 3.105(a) (1999). 2. The criteria for an earlier effective date of July 1, 1969, for the award of service connection for an eye disorder have been met. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 3.105(a) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background The veteran served on active duty from July 1, 1966, to June 30, 1969. The veteran's service medical records includes a Report of Medical History (Standard Form 89) which is dated on May 26, 1966, prior to enlistment. In Item 17, entitled "STATEMENT OF EXAMINEE'S PRESENT HEALTH IN OWN WORDS," the veteran indicated he was in good health. In Item 20, entitled "HAVE YOU EVER HAD OR HAVE YOU NOW," the veteran indicated he had no eye trouble. No pertinent findings were made in Item 39, entitled "PHYSICIAN'S SUMMARY AND ELABORATION OF ALL PERTINENT DATA." A Report of Medical Examination (Standard Form 88) reflects that the veteran underwent an examination on May 26, 1966, prior to enlistment. Item 24 of the medical examination report was checked, signifying that the veteran's "EYES- GENERAL," were normal. Item 25, "OPHTHALMOSCOPIC" was also marked normal. Item 59, "DISTANT VISION" reflected 20/20 vision in the right and left eyes. Item 60, "REFRACTION" and Item 67, "NIGHT VISION" were blank. Item 77 indicated that the examinee was qualified for "enl[istment]." In July 1966, the veteran presented for treatment and reported that his left eye hurt. Two days later, he complained that the vision in his left eye was blurry, and he also reported that he felt as if there was foreign matter in his eye. Another two days later, he was seen in the ophthalmology clinic and it was noted that he possibly had a foreign body in his left eye, but that no abnormalities were seen. A February 1967 medical record from the optometry clinic noted that that the veteran wore glasses. It was also noted that he had blurred vision, and that his eyes burned and were bloodshot and watery. It was noted that he had 20/20 vision, bilaterally. Internal and external examinations were negative. In December 1967, the veteran again presented for treatment of an inflamed left eye. It was noted he had an irritated and inflamed conjunctiva and sclera of the left eye with moderate photophobia. His pupils were noted as equal, round, and reactive to light and accommodation. The impression was conjunctivitis. Medication was prescribed. The next day it was noted that he had made no improvement and continued to have symptoms. It was also noted that his pupils were equal, round, and reactive to light. In March 1969, it was noted that the veteran had conjunctivitis and medication was prescribed. Later in March, it was noted that he reported having blurred vision in the left eye. He also reported that it felt as if he had a foreign body in his eye most of the time. On examination, his media and fundi were clear. An external examination of the eye revealed much congestion of the left eye as well as photophobia. A diagnosis was not made. On file is a Report of Medical History (Standard Form 89) which is dated on March 19, 1969. Item 5 of Standard Form 89 shows that the purpose of the examination was "SEPARATION." In Item 17, entitled "STATEMENT OF EXAMINEE'S PRESENT HEALTH IN OWN WORDS," the veteran indicated he was in "Good Health except [for] eye trouble." In Item 20, in response to a question as to whether he had, or had ever had, eye trouble, the veteran again indicated he had eye trouble and said he was being treated. In Item 39, entitled "PHYSICIAN'S SUMMARY AND ELABORATION OF ALL PERTINENT DATA (Physician shall comment on all positive answers in items 20 through 38)" it was noted, among other things, that the veteran had "Eye trouble-[was][b]eing treated-[and had] [n]o sequelae." A "Report of Medical Examination" (Standard Form 88) shows that the veteran underwent an examination on March 19, 1969. Item 5 on Standard Form 88 reflects that the purpose of the examination was "separation." Following a clinical evaluation, Item 24, "EYES-GENERAL (Visual acuity and refraction under items 59, 60 and 67)" was marked normal. Item 25, "OPHTHALMOSCOPIC" was also marked normal. Item 59, "DISTANT VISION," Item 60, "REFRACTION," and Item 67, "NIGHT VISION" were blank. Item 68, "RED LENS TEST" indicated that "Digital Palp[ation][was] Normal." Item 74, "SUMMARY OF DEFECTS AND DIAGNOSES," was left blank. Item 77 indicated that the examinee was qualified for separation. A May 1969 consultation request shows that the veteran complained of photophobia and the sensation of having a foreign body in his left eye all of the time. He also had complaints of blurry vision in the left eye. It was noted that his conjunctiva of his left eye looked quite congested. On ophthalmologic consultation examination, it was reported that he had a 2 year history of photophobia and the sensation having a foreign body in his eye. It was objectively noted that he had limbal cataracts. When seen in June 1969, it was noted that he was much improved. It was noted that he was leaving the area next month and would probably improve in his new region. It was recommended that he continue with use of his medication. In June 1969, shortly before his discharge, the veteran reported that there had been no change in his medical condition since his last separation examination. On June 1, 1970, the RO received the veteran's initial application for service connection (VA FORM 21-526). He indicated that he had an "EYE CONDTION, LT." On July 10, 1970, the RO received the veteran's service medical records, which are discussed above. By a July 24, 1970, RO decision, the veteran's claim of service connection for an eye condition was denied. The RO noted, in its decision, that "Exam at discharge from service showed the eyes were normal." It was also noted that an "EYE CONDITION [was] not shown on examination at discharge [on] 3/19/69." The veteran was informed of the adverse decision in a September 1970 letter, in which it was noted that an "Eye condition [was] not shown on discharge examination of March 19, 1969." In February 1981, the veteran filed an application to reopen a claim of service connection for an eye condition. In March 1981, the RO received a statement from Dr. P.B., which indicates that the veteran had presented in April 1973, with irritated eyes. It was noted that the diagnoses were conjunctivitis and refractive error. By a March 1981 RO decision, the veteran's application to reopen a claim of service connection for an eye condition was denied. He was informed of the adverse decision in an April 1981 letter; and he did not file a timely appeal. In a September 1993 statement, the veteran's private physician, Dr. P.B., indicated that he had treated the veteran for bilateral acute conjunctivitis and acute iritis of the left eye. He related that he had treated the veteran since March 24, 1982, and had seen him, on average, once a year. In January 1995, the veteran testified at a RO hearing that his eye condition developed in service. He also said he been treated for an eye condition immediately after his service discharge and had been diagnosed as having conjunctivitis. He said he had been treated by a private physician over the years. The veteran's wife indicated that she married the veteran in 1971. She said that he had the condition when she met him in 1969. In January 1995, the veteran's mother indicated that when the veteran returned home from the military he repeatedly complained that his eyes were bothering him. She reported that he had visited a doctor on many occasions due to his problems. It was noted that the eye problems had been consistent over the years. In January 1995, the RO received private medical records, dated from 1979 to 1981, showing treatment for bilateral conjunctivitis. By a February 1995 RO decision, service connection for bilateral conjunctivitis was granted and a 10 percent evaluation was assigned effective from July 14, 1993, the date of his application to reopen his claim of service connection. II. Legal Analysis The veteran's claim for an earlier effective date for an award of service connection for bilateral conjunctivitis, based on CUE in a July 1970 RO decision, is well grounded in that it is not inherently implausible. 38 U.S.C.A. § 5107(a). The facts relevant to the issue have been properly developed, and the statutory obligation of VA to assist the veteran in the development of his claim is satisfied. Id. To establish a valid CUE claim, a claimant must show that either the correct facts, as they were known at the time, were not before the adjudicator, or that the statutory or regulatory provisions extant at the time were incorrectly applied. Russell v. Principi, 3 Vet. App. 310, 313 (1992). CUE is a very specific and rare kind of error of fact or law that compels the conclusion, to which reasonable minds could not differ, that the result in the decision in question would have been manifestly different but for the error. Fugo v. Brown, 6 Vet. App. 40, 43 (1993). The claimant must assert more than a mere disagreement as to how the facts were weighed or evaluated. Eddy v. Brown, 9 Vet. App. 52 (1996). When attempting to raise a claim of CUE, a claimant must describe the alleged error with some degree of specificity, and provide persuasive reasons as to why the result would have been manifestly different but for the alleged error. Fugo, supra. Where evidence establishes CUE, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of CUE had the same effect as if the corrected decision had been made on the date of the reversed decision. Id. In general, controlling law and regulations provide that service connection may be established for a chronic disability resulting from personal injury or disease incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. The effective date for an award of service connection and disability compensation, based on an original claim, is the day following separation from active service or the date entitlement arose, if the claim is received within one year after separation from service; otherwise, the date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a), (b)(1); 38 C.F.R. § 3.400(b)(2) In the instant case, the veteran filed a claim of service connection for an eye disorder on June 1, 1970, within one year of his separation from service. By a July 1970 decision, the RO denied the veteran's claim of service connection, asserting that his eyes were normal at the time of his March 19, 1969, discharge examination. The veteran did not appeal the July 1970 RO decision and it became final. 38 U.S.C.A. § 7105. In February 1981, the veteran filed an application to reopen his claim of service connection for an eye disorder; and in March 1981, the RO denied this application. He was duly informed of the decision and he failed to appeal. As such, the March 1981 RO decision became final. 38 U.S.C.A. § 7105. On July 14, 1993, the veteran filed another application to reopen his claim of service connection for an eye disorder. By a February 1995 RO decision, the veteran's claim of service connection was granted and made effective from the date of his last application to reopen his claim --- July 14, 1993. Thereafter, the veteran indicated he wanted an earlier effective date for the award of service connection. In March 1997, the Board denied his claim for an earlier effective date and he appealed this decision to the Court. In a September 1999 memorandum decision, the Court held that the RO, in its July 1970 decision, which denied service connection for an eye disorder, made a misstatement of fact that denied the existence of critical evidence when it indicated that an eye condition was not shown on the veteran's March 19, 1969, discharge examination. Further, the Court directed the Board to determine whether the RO's July 1970 misstatement of fact rose to the level of CUE under 38 C.F.R. § 3.105(a). Standard Form 88, "A Report of Medical Examination," reflects that the veteran was examined on March 19, 1969, and the purpose of the examination was "separation," according to Item 5. Following a clinical evaluation, Item 24, "EYES-GENERAL (Visual acuity and refraction under items 59, 60 and 67)" and Item 25, "OPHTHALMOSCOPIC" were both marked normal. Item 59 "DISTANT VISION," Item 60 "REFRACTION," and Item 67 "NIGHT VISION" were left blank. Item 68, "RED LENS TEST" indicated that a "Digital [p]alp[ation] [was] [n]ormal." Item 74, which was entitled "Summary of Defects and Diagnoses," was left blank. Finally, Item 77 indicated that the examinee was qualified for separation. With respect to the veteran's medical history, Standard Form 89, dated on March 19, 1969, includes Item 17, which was entitled "STATEMENT OF EXAMINEE'S PRESENT HEALTH IN OWN WORDS." In Item 17, the veteran indicated he was in "Good Health except [for] eye trouble." In Item 20, which was entitled "HAVE YOU EVER HAD OR HAVE YOU NOW," the veteran again indicated he had eye trouble and also said he was being treated. Item 39, which was entitled "PHYSICIAN'S SUMMARY AND ELABORATION OF ALL PERTINENT DATA," noted "Eye trouble- Being treated-No sequelae." Shortly after the veteran underwent his discharge examination on March 19, 1969, and while still in service, he sought examination and treatment for eye problems. Specifically, a May 1969 request for an ophthalmological consultation examination shows that he complained of photophobia, the sensation of having a foreign body in his left eye, and blurry vision in the left eye. It was also noted that the conjunctiva of his left eye looked quite congested. When the veteran underwent an ophthalmologic consultation examination later in May 1969, it was reported that he had a 2 year history of photophobia and the sensation of having a foreign body in his eye. It was objectively noted that he had limbal cataracts. When seen in June 1969, it was noted that he was much improved. It was also noted that he was leaving the area next month and would probably improve in his new region. Continued use of medication was recommended. In June 1969, shortly before his discharge, the veteran reported that there had been no change in his medical condition since his last separation examination. When the RO originally denied the veteran's claim for an eye condition on July 24, 1970, it did, in fact, have access to all of the veteran's service medical records. In this regard, it is noted that the envelope containing the veteran's service medical records shows a date of receipt at the RO of July 10, 1970, which was prior to the date on which the RO adjudicated the veteran's claim. However, not all of the veteran's relevant service medical records were discussed in the RO's decision. In particular, as the Court noted in its September 1999 memorandum decision, certain aspects of the veteran's March 19, 1969, discharge examination were, in essence, denied, particularly those which were critically relevant to the veteran's claim. This critically relevant evidence not only shows that the veteran complained of an eye condition at the time of his discharge examination but also that a physician (at the time of his discharge examination) acknowledged the veteran's eye complaints and specifically pointed out that the veteran had eye trouble and was being treated for such. Additionally, the RO failed to discuss service medical records which demonstrate that the veteran received repeated treatment for his eye condition following his March 19, 1969, discharge examination. These service medical records specifically document that the veteran had congested conjunctiva, the disability in question, during active service. Because the service medical records available to the RO included a report of an examination for the purpose of "separation" dated in March 1969 on which the examiner noted the conclusion on "clinical evaluation" was that the veteran's eyes were normal, and because the service medical records also included a statement dated 30 June 1969 on which the veteran reported that there had been no change in his medical condition since his last separation examination, the Board, in its decision of March 1997, concluded that appellant's allegation of error in the RO's decision was merely a statement of disagreement with the RO's interpretation of the evidence. However, the Court has concluded that the RO was not merely weighing evidence when it concluded that an eye condition was not shown on examination at discharge, but rather, the RO made a misstatement of fact that denied the existence of critical evidence when it characterized the veteran's March 19, 1969, discharge examination as showing the veteran's eyes were normal. Additionally, the Court has concluded that the RO failed to consider, in the first instance, service medical records which document extensive eye treatment following the veteran's March 19, 1969, discharge examination. The question left for the Board to consider is whether the errors found by the Court "would have manifestly changed the outcome" of the RO's 1970 decision. Had the RO not committed the errors found by the Court, the RO would have properly characterized the discharge examination and considered other service medical evidence. The RO would have found that the evidence supported the veteran's claim and granted service connection for an eye condition. 38 U.S.C.A. § 1101; 38 C.F.R. § 3.303. It is therefore concluded that the RO's 'misstatement of fact that denied critical evidence' rises to the level of CUE; thus, the RO's July 1970 decision which denied service connection for an eye condition is reversed. 38 C.F.R. § 3.105(a) (Where evidence establishes CUE, the prior decision will be reversed or amended.). Since the veteran filed his original claim of service connection on June 1, 1970, within one year after his June 30, 1969, release from active duty, the correct effective date for service connection is July 1, 1966, which is the day after his service discharge. In other words, the effective date of the grant of service connection is retroactive to the time when he retired from the military and filed his initial claim. See 38 C.F.R. § 3.400(b)(2). ORDER The RO's July 1970 decision was clearly and unmistakably erroneous; and the veteran is entitled to an effective date of July 1, 1969, for the award of service connection for bilateral conjunctivitis. G. H. SHUFELT Member, Board of Veterans' Appeals