Citation Nr: 0522589 Decision Date: 08/18/05 Archive Date: 08/25/05 DOCKET NO. 00-17 332 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to an effective date earlier than November 18, 1997, for the grant of service connection for transitional cell carcinoma of the bladder, status-post radical cystectomy with impotence, to include whether there was clear and unmistakable error (CUE) in prior rating determinations denying service connection. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant, spouse, and TB ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The veteran served on active duty from February 1943 to January 1946. This matter is before the Board of Veterans' Appeals (Board) from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. By a July 1999 rating decision, the RO established service connection for transitional cell carcinoma of the bladder, evaluated as 100 percent disabling, effective November 18, 1997. Thereafter, by a September 1999 rating decision, the RO denied the veteran's claim for an earlier effective date. The veteran provided testimony at a hearing before the undersigned Veterans Law Judge in July 2002, a transcript of which is of record. In January 2003, the Board remanded this case for the RO to address the veteran's contentions of CUE in the prior rating decisions of September 1993 and May 1995 which had denied service connection for bladder cancer. The RO was to also address the applicability of the Veterans Claim Assistance Act of 2000 (VCAA) to the earlier effective date claim. In accord with the Board's remand directives, the RO found in a June 2003 rating decision that the prior denials of service connection were not the product of CUE. The record indicates the veteran perfected an appeal on this issue to the Board: this issue was included in a January 2004 Supplemental Statement of the Case (SSOC), he was informed he had 60 days following this document in which to perfect his appeal, and he submitted a statement in March 2004, within 60 days of the SSOC, disagreeing with the CUE determination. Further, for the reasons stated below, the Board finds that the provisions of the VCAA have been satisfied. Accordingly, the RO substantially complied with the remand directives, and a new remand is not required to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. All development and notification necessary for the disposition of the instant case has been completed. 2. Service connection was denied for status-post cystectomy for bladder carcinoma and urosepsis by a September 1993 rating decision. The veteran was informed of this decision, including his right to appeal, and he did not appeal. 3. A May 1995 rating decision found that new and material evidence had not been received to reopen a claim of service connection for a bladder disorder. The veteran was informed of this decision, as well as his right to appeal, by correspondence dated in June 1995, and he did not appeal. 4. Both the September 1993 and May 1995 rating decisions were consistent with and supported by the evidence then of record, as well as the law in effect at that time. 5. To the extent error was committed in the September 1993 and May 1995 rating decisions, the evidence does not show that, had it not been made, it would have manifestly changed the outcome; it is not absolutely clear that a different result would have ensued. 6. Following the May 1995 rating decision, the next written communication from the veteran to VA in which he indicated he was seeking service connection for a bladder disorder, to include cancer, was received November 18, 1997. CONCLUSIONS OF LAW 1. The September 1993 and March 1995 rating decisions were not the product of CUE. 38 C.F.R. §§ 3.104(a), 3.105(a) (2004); Russell v. Principi, 3 Vet. App. 310 (1992); Damrel v. Brown, 6 Vet. App. 242 (1994). 2. The criteria for an effective date earlier than November 18, 1997, for the establishment of service connection for transitional cell carcinoma of the bladder, status-post radical cystectomy with impotence, are not met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.159, 3.400 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes at the outset that VA has a duty to assist a claimant in developing the facts pertinent to his or her claim, and to notify him or her of the evidence necessary to complete an application for benefits. The VCAA, which became law on November 9, 2000, redefined the obligations of VA with respect to the duty to assist and included an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. First, VA has a duty to notify the appellant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103; 38 C.F.R. § 3.159(b). Information means non-evidentiary facts, such as the claimant's address and Social Security number or the name and address of a medical care provider who may have evidence pertinent to the claim. See 66 Fed. Reg. 45,620, 45,630 (August 29, 2001); 38 C.F.R. § 3.159(a)(5). Second, VA has a duty to assist the appellant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In Quartuccio v. Principi, 16 Vet. App. 183 (2002), the United States Court of Appeals for Veterans Claims (Court) emphasized that adequate notice requires a claimant to be informed of what he or she must show to prevail in a claim, what information and evidence he or she is responsible for, and what evidence VA must secure. Thereafter, in Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held, in part, that a VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. More recently, however, the Court held in Mayfield v. Nicholson, 19 Vet. App. 103 (2005) that error regarding the timing of notice does not have the natural effect of producing prejudice and, therefore, prejudice must be pled as to it. Further, the Court held that VA can demonstrated that a notice defect is not prejudicial if it can be demonstrated: (1) that any defect in notice was cured by actual knowledge on the part of the appellant that certain evidence (i.e., the missing information or evidence needed to substantiate the claim) was required and that the appellant should have provided it; (2) that a reasonable person could be expected to understand from the notice provided what was needed; or (3) that a benefit could not possibly have been awarded as a matter of law. With respect to the veteran's CUE claim, the Court has held that the VCAA does not apply to claims of CUE in prior Board decisions or in prior rating decisions. See Parker v. Principi, 15 Vet. App. 407, 412 (2002); Livesay v. Principi, 15 Vet. App. 165, 178-79 (2001). Thus, no further discussion of the VCAA is warranted for this issue. Regarding the earlier effective date claim, the Board notes that the rating decisions which are the subject of this appeal, July 1999 and September 1999, were promulgated prior to the November 9, 2000, enactment of the VCAA. Nevertheless, as will be discussed below, the VCAA provisions have been considered and complied with. There is no indication that there is additional evidence to obtain, there is no additional notice that should be provided, and there has been a complete review of all the evidence without prejudice to the appellant. As such, there is no indication that there is any prejudice to the appellant by the order of the events in this case. See Mayfield, supra; see also Bernard v. Brown, 4 Vet. App. 384 (1993). Any error in the sequence of events is not shown to have any effect on the case or to cause injury to the claimant. Consequently, the Board concludes that any such error is harmless and does not prohibit consideration of this matter on the merits. See ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998); Miles v. Mississippi Queen, 753 F.2d 1349, 1352 (5th Cir. 1985). VA's Office of General Counsel indicated in VAOPGCPREC 8-2003 that when VA receives a Notice of Disagreement that raises a new issue - as is the case here with the veteran's earlier effective date claim - section 7105(d) requires VA to take proper action and issue a Statement of the Case (SOC) if the disagreement is not resolved, but section 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate the newly raised issue. Precedential opinions of VA's General Counsel are binding on the Board. 38 U.S.C.A. § 7104(c). Further, the RO sent correspondence to the veteran in June 2003 regarding the earlier effective date claim which informed him of what information and evidence he must submit, what information and evidence will be obtained by VA, and the need for the veteran to advise VA of or to submit any evidence in his possession that was relevant to the case. As such, this correspondence fully complied with the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), as well as the Court's holding in Quartuccio, supra. Moreover, the veteran has been provided with a copy of the appealed rating decisions, the July 2000 SOC, as well as the January 2004 Supplemental Statement of the Case (SSOC) which provided him with notice of the law and governing regulations regarding his case, as well as the reasons for the determinations made with respect to his claims. In pertinent part, the SSOC included a summary of the relevant VCAA regulatory provisions of 38 C.F.R. § 3.159. Therefore, the Board finds that the veteran was notified and aware of the evidence needed to substantiate this claim and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. Regarding the duty to assist, the Board notes that the veteran has had the opportunity to present evidence and argument in support of his claim, to include at the July 2002 hearing. However, it does not appear that the veteran has identified the existence of any relevant evidence that has not been obtained or requested by the RO. In addition, the Board finds that no additional development to include a medical examination and/or opinion is warranted based on the facts of this case. Simply put, any current examination would be subsequent to the current effective date, and pertain to the current nature and severity of his service- connected disabilities. As such, it could not indicate whether an earlier effective date was warranted in this case. Consequently, the Board concludes that the duty to assist has been satisfied. Based on the foregoing, the Board finds that, in the circumstances of this case, any additional development or notification would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided); Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (when there is extensive factual development in a case, reflected both in the record on appeal and the Board's decision, which indicates no reasonable possibility that any further assistance would aid the appellant in substantiating his claim, this Court has concluded that the VCAA does not apply). Thus, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled, to include the revised regulatory provisions of 38 C.F.R. § 3.159. No additional assistance or notification to the appellant is required based on the facts of the instant case. General Background. In May 1993, the veteran submitted a VA Form 21-526 (Application for Compensation or Pension), in which he indicated he was seeking service connection for bladder problems. He reported that he had had kidney and bladder trouble since apparently August 1945, that he could not hold urine and had blood in urine. However, he also indicated that the beginning date of treatment was October 1943, and that his problems were ongoing. However, he listed no specific dates of medical treatment earlier than in 1992 and 1993. The veteran's service medical records reflect that his genitourinary system was clinically evaluated as normal on his February 1943 induction examination. Service medical records are negative for manifestation, treatment or diagnosis. On his January 1946 discharge examination, it was noted that he was treated for pneumonia in October 1943, and that he had had kidney or bladder trouble since August 1945, with no pain in his back, but unable to hold urine and had to make frequent trips [to the toilet]. Nevertheless, his genitourinary system, including the urinalysis, was evaluated as normal. Evidence added to the claims file during the late 1940s contains no references on ongoing problems of the genitourinary tract. VA medical records were also added to the file that were dated in 1993. A May 1993 pathological report noted that bladder biopsy revealed poorly differentiated carcinoma, while a random bladder biopsy revealed chronic cystitis, benign. In addition, prostatic urethra showed benign prostatic urethra tissue with loose fragments of carcinomatous tissue. A July to August 1993 VA hospitalization report reflects that the veteran was status-post radical cystectomy in June 1993 for bladder carcinoma with placement of an ileobladder. During the July to August 1993 hospitalization he underwent an upper GI with small bowel follow through. Diagnosis was urosepsis. None of these records linked the onset of bladder cancer to the veteran's military service, nor did he provide a history on ongoing symptoms dating from that time. Service connection was subsequently denied for status-post cystectomy for bladder carcinoma and urosepsis by a September 1993 rating decision. The rating board's rationale was that the service medical records contained only a single mention relating to the veteran's bladder, with no diagnosis of a bladder disability. Given the time between the veteran's current diagnosis and the single complaint of not being able to hold urine, with no diagnosis, it was stated that it would require resorting to speculation to relate the two conditions. The veteran was informed of this decision by correspondence dated that same month. In addition, this correspondence noted that a VA Form 4107 was enclosed which explained his procedural and appellate rights. However, he did not appeal. In October 1994, the veteran submitted a new VA Form 21-526, in which he again indicated that he was seeking service connection for bladder problems since 1944 while on active duty. He attributed the onset to an episode of food poisoning in service. He identified medical treatment in1993 for this disorder, and stated that he had been treated at Kaiser Hospital in 1987 for genitourinary problems. Private medical records were subsequently obtained which cover a period from 1992 to 1995, and show, in part, treatment for carcinoma of the bladder. When the veteran was seen initially, in December 1992, he reported a 3 week history of intermittent blood in the urine. In January 1993, he reported a 6 week history of hematuria, and that he had passed a renal stone in 1985. Other records show his report of past urinary tract infections. None of these records linked the onset of urinary tract problems, including bladder cancer, to military service. A May 1995 rating decision found that new and material evidence relative to service connection for a bladder disorder had not been submitted. The rating decision noted the prior denial in September 1993, and found that the additional treatment records generally revealed follow-up for complaints of hematuria due to carcinoma of the bladder, and that the more recent treatment records indicated treatment for urinary tract infection. Based on the foregoing, it was found that the new evidence submitted was not considered material to the issue of service connection for a bladder disorder, as the treatment noted took place some 40+ years subsequent to the veteran's military discharge, and bore no relationship to any incident which occurred in service. Therefore, the prior denial of service connection for status- post cystectomy for bladder carcinoma and urosepsis was continued, and this issue was not considered reopened. The veteran was informed of this rating decision by correspondence dated in June 1995, and it was again noted that a VA Form 4107 was enclosed which explained his procedural and appellate rights. However, he did not appeal. Following the May 1995 rating decision, the next written communication from the veteran to the VA in which he indicated he was seeking service connection for a bladder disorder was a new VA Form 21-526 received on November 18, 1997. Specifically, he indicated he was seeking service connection for kidney and bladder problems since 1945, culminating in bladder removal and radical cystectomy and enlarged kidney. On that occasion he reported being treated by Kaiser Permanente for kidney problems from 1985 to 1987. Various medical records were subsequently added to the file which cover a period from 1993 to 1999, and include findings regarding the veteran's bladder cancer. In pertinent part, records dated in April 1993 note that he complained of intermittent hematuria since 1944. In a letter of June 1998 the veteran claimed that he had been treated off and on for genitourinary complaints since his discharge from service, although records compiled during the several decades after service were not available, and also reported that he worked for an oil company after discharge from service. Service connection was ultimately established for transitional cell carcinoma of the bladder, status-post radical cystectomy with impotence, evaluated as 100 percent disabling, effective November 18, 1997. This decision reflects that the allowance was based upon medical opinions dated in February and March 1999, as well as a May 1999 VA medical examination, which linked the current disability to service. These opinions were collectively to the effect that over the last few decades medical literature had mentioned several etiologies related to the high incidence of bladder cancer, and that exposure to chemicals such as gasoline additives had been directly related to incidences of bladder cancer. In this context, it was reasonable to suspect that prolonged exposure to these known carcinogens when the veteran was transporting gasoline during his military service were undoubtedly the cause of his bladder carcinoma which was detected in subsequent years and followed by chemotherapy after a radical cystectomy in 1993. One physician noted that the veteran had no history of smoking or other industrial exposure after the war, but may have been exposed to benzene and other toxic agents during World War II. Another stated that because of the veteran's exposure while serving in the military to benzene and other gasoline additives which are known causatives of bladder cancer with long-term exposure, it was possible that his cancer arose because this exposure during military service. A May 1999 VA medical examination diagnosed status-post bladder carcinoma, status-post chemotherapy. The examiner noted that medical records were reviewed prior to the examination, and opined that it was as likely as not that the veteran's bladder cancer was due to his military service and long-term exposure to carcinogens. The examiner stated that his rationale for this was based on the fact that the veteran gave a history of bladder problems since 1943. Further, the examiner noted that there was a note from "1943" from the hospital on release from active duty that the veteran had been complaining of trouble since 1945 and difficulty holding urine. There was also the veteran's history of being told in 1943 that he had bladder tumors, although there were no records to substantiate this. In addition, the veteran had had ongoing care for urinary tract problems from the 1960s on to the diagnosis of bladder carcinoma in 1993. The examiner reiterated that it was as likely as not that the initial problems were due to the veteran's exposure to gasoline. In addition to the above medical opinions, the RO noted in the July 1999 rating decision that the veteran's record indicated that he was involved with the transportation of benzene and gasoline during his military service. The veteran appealed the July 1999 rating decision to the extent it assigned an effective date of November 18, 1997, for the establishment of service connection for his bladder cancer. He has contended that he should have an effective date of May 26, 1993, because that was when he first filed a claim for the same disability for which he is currently service-connected, and because there is evidence of bladder problems dating back to service. Further, he indicated at his July 2002 Board hearing that because of the severity of his medical condition and the demands it placed on his family he was unable to pursue the matter of filing a timely Notice of Disagreement at the time of the prior denials. The veteran has also asserted, through statements and hearing testimony, that the RO erroneously denied his earlier claims of service connection for bladder cancer. He indicated that the RO failed to obtain relevant records at the time of the prior denials. Further, he indicated that they failed to consider evidence in support of his claim. In one statement, he asserted that the references to the service medical records in the September 1993 rating decision overlooked a lengthy 5-week hospitalization course as an inpatient at Maxwell Field, Alabama, and 8 additional weeks of rehabilitation. He also asserted that the RO did not and could not prove there was no relationships between the in- service bladder problems and the post-service bladder carcinoma before their rationale could be accepted as a reason for stating that service connection was not warranted. Moreover, he asserted that his discharge physical indicated that his bladder problems were aggravated by service. He emphasized the fact that 4 clinicians had linked his bladder carcinoma to service. In various statements, the veteran has criticized the accuracy of the RO's description of evidence in this case, to include the September 1993 and May 1995 rating decisions, as well as the June 2003 rating decision and January 2004 SSOC which adjudicated his CUE claim. He maintains that the evidence in support of his claim was positive, and that the RO left out significant details regarding the evidence of record. Further, he has indicated that the RO did not correctly apply the law to the facts of his case, in either the prior denials or the adjudication of his CUE claim. I. CUE Legal Criteria. The Board notes that, under 38 C.F.R. §§ 3.104(a), 3.105(a) and 20.1103 taken together, a rating decision is final and binding in the absence of clear and unmistakable error. Under 38 C.F.R. § 3.105(a), "[p]revious determinations which are final and binding ...will be accepted as correct in the absence of clear and unmistakable error." A decision which constitutes a reversal of a prior decision on the grounds of clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.105(a). The Court has provided the following guidance with regard to a claim of clear and unmistakable error: In order for there to be a valid claim of 'clear and unmistakable error,' there must have been an error in the prior adjudication of the claim. Either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied. The claimant, in short, must assert more than a disagreement as to how the facts were weighed or evaluated. Russell v. Principi, 3 Vet. App. 310, 313 (1992) (en banc). The Court in Russell further stated: Errors that would not have changed the outcome are harmless; by definition, such errors do not give rise to the need for revising the previous decision. The words 'clear and unmistakable error' are self-defining. They are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made. A determination that there was a 'clear and unmistakable error' must be based on the record and the law that existed at the time of the prior AOJ [agency of original jurisdiction] or Board decision. Russell, 3 Vet. App. at 313-314; see also Bustos v. West, 179 F.3d 1378 (Fed. Cir. 1999). In determining whether there is CUE, the doctrine of resolving reasonable doubt in favor of the veteran is not for application, inasmuch as error, if it exists, is undebatable, or there was no error within the meaning of 38 C.F.R. § 3.105(a). Russell, 3 Vet. App. at 314; see also Yates v. West, 213 F.3d 1372 (2000). The Board wishes to emphasize that the Court has consistently stressed the rigorous nature of the concept of CUE. "Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts; it is not mere misinterpretation of facts." Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). "'Clear and unmistakable error' requires that error, otherwise prejudicial, must appear undebatably." Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). "It must always be remembered that clear and unmistakable error is a very specific and rare kind of 'error'." Fugo v. Brown, 6 Vet. App. 40, 43 (1993). In Russell, Fugo and other decisions, the Court has emphasized that merely to aver that there was CUE in a rating decision is not sufficient to raise the issue. The Court has further held that simply to claim CUE on the basis that previous adjudications had improperly weighed the evidence can never rise to the stringent definition of CUE. The determination regarding CUE must be made based on the record and the law that existed at the time the decision was made. Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell. at 314. Evidence that was not of record at the time of the decision cannot be used to determine if CUE occurred. See Porter v. Brown, 5 Vet. App. 233 (1993). Analysis. In the instant case, the Board finds that neither the September 1993 nor the May 1995 rating decisions was the product of CUE. The Board notes that the veteran has provided hearing testimony and several detailed statements as to his allegations of CUE in the prior rating decisions. In essence, these allegations raise 2 principal claims: that the RO failed in the duty to assist at the time of these decisions, and that the denial of his claims were not supported by the evidence of record. With respect to these allegations, the Board notes that it does appear the RO failed to request treatment records at the time of the prior denials. For example, he identified private treatment records dated in 1992 and 1993 in his original May 1993 VA Form 21-526, and these records were not added to the file until the time of the May 1995 rating decision. Additionally, VA medical records for this period, including the June 1993 surgical report, do not appear to have been added to the claims folder until after the May 1995 rating decision. The failure to obtain the VA medical records is particularly significant because in Bell v. Derwinski, 2 Vet. App. 611 (1992), the Court held that VA medical records which are in existence are constructively of record and the failure of the RO or the Board to consider any such pertinent records might constitute clear and unmistakable error, even though such evidence was not actually in the record assembled for appellate review. However, the VA medical records from 1993 to the time of the May 1995 rating decision are consistent with the post-service medical records which were noted in these rating decisions. Specifically, that the veteran had bladder cancer for which he underwent a cystectomy in June 1993. These records do not contain a competent medical opinion which related this disability to active service. The lack of such medical opinion, linking the onset of bladder cancer to a complaint of hematuria made almost 50 years earlier, was the basis for the prior denials. In fact, no such evidence was of record until the 1999 medical opinions noted above. More importantly, following the Bell case, the Court held and has maintained that a violation in the duty to assist does not constitute CUE. Caffrey v. Brown, 6 Vet. App. 377 (1994). This also goes to any failure on the part of VA to obtain a medical examination and/or opinion regarding the etiology of the veteran's bladder cancer at the time of the prior denials. Regarding the veteran's allegations that the denials were inconsistent with the evidence, the Board notes that he has criticized the accuracy of the RO's description of the evidence in the September 1993 and May 1995 rating decisions, and that they leave out significant details. However, the RO in these decisions, as well as the Board in the current decision, was only providing a summary of the evidence of record rather than a detailed account of all information contained therein. In Gonzalez v. West, 218 F.3d 1378 (Fed. Cir. 2000) the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that "absent specific evidence indicating otherwise, all evidence contained in the record at the time of the RO's determination of the service connection must be presumed to have been reviewed by the Department of Veterans Affairs, and no further proof of such review is needed." The Federal Circuit explicitly rejected the view that all evidence must be discussed; i.e., that an adequate "review" of the record did not require an explanation in the RO decision of the impact or lack thereof of every piece of evidence of record. Moreover, the Board finds that the RO's description of the evidence then of record was accurate. Thus, it does appear that the correct facts were before the adjudicators based upon the evidence of record at that time. Consequently, the veteran's allegations constitute no more than a disagreement with how the evidence was weighed at the time of the September 1993 and May 1995 rating decisions, which the Court has held can never rise to the stringent definition of CUE. The Board also finds that both the September 1993 and May 1995 rating decisions were consistent with and supported by the evidence then of record, as well as the law in effect at that time. With respect to the September 1993 rating decision, service connection was denied at that time because it was determined that the service medical records contained only a single mention relating to the veteran's bladder, with no diagnosis of a bladder disability, and a normal urinalysis and that given the time between the veteran's current diagnosis and the single complaint during service, with no diagnosis or finding of abnormality, it was stated that it would require resorting to speculation to relate the two conditions. The Board has already determined that the RO's summary of the evidence of record in both rating decisions was accurate, and further acknowledges that there was no competent medical evidence of record at that time which related his bladder cancer to service. In fact, the Board has already noted that there was no such competent medical evidence until 1999, after the promulgation of both the September 1993 and May 1995 rating decisions. The determination regarding CUE must be made based on the record and the law that existed at the time the decision was made, and subsequent evidence cannot be used to determine that there was CUE in a prior decision. Damrel, supra; Russell, supra; Porter, supra. The Board acknowledges that the RO did not explicitly refer to the statutory or regulatory provisions regarding service connection in the September 1993 rating decision. However, to the extent this was error, it does not change the fact that the RO's stated rationale for denying the claim was the lack of evidence linking the current disability first diagnosed in 1993 to the notation of kidney or bladder problems on the January 1946 discharge examination almost 50 years earlier. Moreover, the Board notes that the RO's rationale in the September 1993 rating decision was consistent with the case of Mense v. Derwinski, 1 Vet. App. 354, 356 (1991), where the Court upheld a Board decision which denied service connection for a low back disorder when the Board emphasized in its decision that the veteran failed to provide evidence which demonstrated continuity of symptomatology, a requirement for service connection when the condition noted during service was not chronic, and the Board found that the veteran failed to account for the lengthy time period for which there was no clinical documentation of his low back condition. The generic term of "problems" does not indicate a chronic disability was diagnosed at that time, nor was there any medical evidence documenting any such problems from the time of the January 1946 discharge examination and the subsequent findings of bladder cancer more than 40 years later in 1993. As such, the RO's decision was consistent with the law regarding service connection at that time. In regard to the May 1995 rating decision, the RO found that new and material evidence had not been received, in essence, because there was still no competent medical evidence linking the current bladder cancer to service, which was the specific basis for the prior denial. A review of the evidence on file at that time, as well as the VA medical records which would have been constructively of record at that time, confirms that there was no such evidence in existence at that time. The Board has already determined that there was no such evidence until 1999. Further, the Board notes that the RO's rationale in finding new and material evidence had not been received was consistent with existing caselaw at that time. Specifically, Morton v. Principi, 3 Vet. App. 508, 509 (1992), the Court held that medical records describing the veteran's current condition are not material to the issue of service connection and are not sufficient to reopen a claim for service connection based on new and material evidence. The RO's rationale is also consistent with Moray v. Brown, 5 Vet. App. 211, 214 (1993), which held that lay assertions of medical causation cannot serve as the predicate to reopen a claim. The Board acknowledges that, similar to the September 1993 rating decision, the RO did not specifically refer to the statutory and/or regulatory provisions for "new and material evidence" in the May 1995 rating decision. At that time, 38 C.F.R. § 3.156(a) provided that "new and material evidence" was evidence not previously submitted which bears directly and substantially upon the specific matter under consideration, was not cumulative or redundant, and which by itself or in connection with evidence previously assembled was so significant that it must be considered in order to fairly decide the merits of the claim. Further, the RO did not explicitly refer to the Court's holding in Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991), that in order for newly submitted evidence to be considered material, "there must be a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome." Although the Colvin standard was subsequently overruled by the Federal Circuit in Hodge v. West, 115 F.3d 1356 (Fed. Cir. 1998), it was the law in effect at the time the May 1995 rating decision was issued. Nevertheless, to the extent this was error, the evidence does not show that, had it not been made, it would have manifestly changed the outcome; it is not absolutely clear that a different result would have ensued. The Board has already found that the RO's rationale in finding that new and material evidence had not been received was consistent with existing caselaw at that time. Further, even though not explicitly stated, it appears that the RO made an implicit determination that the new evidence was cumulative and redundant of that which was of record at the time of the prior denial in September 1993. Specifically, the RO found that the new evidence was not material in that it the treatment noted took place some 40+ years subsequent to the veteran's military discharge, and bore no relationship to any incident which occurred in service. This is similar to the RO's description of the evidence of record at the time of the September 1993 rating decision. The Board further finds that even if the RO had determined that new and material evidence had been presented, the case would have been found to be not well grounded, which was the legal standard in effect at that time and until the enactment of the VCAA on November 9, 2000. See Holbrook v. Brown, 8 Vet. App. 91 (1995) (The Board has the fundamental authority to decide a claim in the alternative.). In Caluza v. Brown, 7 Vet. App. 498, 506 (1995), issued on April 12, 1995, it was held that order for a claim to be well grounded, there must be competent evidence of a current disability (a medical diagnosis); evidence of incurrence or aggravation of a disease or injury in service (lay or medical evidence); and evidence of a nexus between the in-service injury or disease and the current disability (medical evidence). As already stated, there was no medical nexus evidence until 1999, after the promulgation of both the September 1993 and May 1995 rating decisions. In light of the foregoing, the Board must find that to the extent error was committed in the September 1993 and May 1995 rating decisions, the evidence does not show that, had it not been made, it would have manifestly changed the outcome; it is not absolutely clear that a different result would have ensued. Simply put, based upon the evidence of record and the law in effect at the time of these decisions, it was not undebatable that service connection was warranted for the veteran's bladder cancer. For the reasons stated above, the Board finds that the veteran's CUE claim must be denied. II. Effective Date Legal Criteria. The effective date for the grant of service connection for a disease or injury is the day following separation from active duty or the date entitlement arose if a claim is received within one year after separation from service. Otherwise, the effective date is the date of receipt of claim, or date entitlement arose, whichever is later. The effective date of an award based on a claim reopened after final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. The VA administrative claims process recognizes formal and informal claims. A formal claim is one that has been filed in the form prescribed by the Secretary. 38 C.F.R. § 3.151. Any communication or action, indicating an intent to apply for one or more benefits, under the laws administered by VA, from a claimant may be considered an informal claim. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within 1 year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. When a claim has been filed which meets the requirements of 38 C.F.R. § 3.151, an informal request for increase or reopening will be accepted as a claim. 38 C.F.R. 3.155. The provisions of 38 C.F.R. § 3.157 commence with notation of the general rule that the effective date of compensation benefits will be the date of receipt of the claim or the date when entitlement arose, whichever is the later. However, this regulation goes on to provide that receipt of clinical reports of examination or hospitalization may serve as informal claims "for increase or to reopen" where the claim is for an already service-connected condition. The date of receipt of such clinical evidence may serve to form the basis for an earlier effective date for the subsequent award of VA benefits if such benefits derive from (1) a claim for increased evaluation or (2) an application to reopen a claim for compensation denied because the service-connected disability was not of compensable degree. Since the veteran's appeal flows from her original claim of service connection, the provisions of 38 C.F.R. § 3.157 are not for application in the instant case. "Application" is not defined in the statute. However, in the regulations, "claim" and "application" are considered equivalent and are defined broadly to include "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p); see also Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999). The Federal Circuit, in Rodriguez, supra, pointed out that for purposes of establishing the requirements and procedures for seeking veterans' benefits, a claim, whether "formal" or "informal" must be "in writing" in order to be considered a "claim" or "application" for benefits, and that the provisions of 38 C.F.R. § 3.1(p) defines "claim," informal as well as formal, as a "communication in writing." Further, the Federal Circuit stated that when 38 C.F.R. § 3.155(a) refers to "an informal claim," it necessarily incorporates the definition of that term in 38 C.F.R. § 3.1(p) as a "communication in writing." The Federal Circuit also pointed out the provisions of 38 C.F.R. § 3.155(a) make clear that there is no set form that an informal written claim must take. All that is required is that the communication "indicat[e] an intent to apply for one or more benefits under the laws administered by the Department," and "identify the benefits sought." Analysis. In the instant case, the Board finds that the veteran is not entitled to an effective date earlier than November 18, 1997, for the establishment of service connection for transitional cell carcinoma of the bladder, status-post radical cystectomy with impotence. As detailed above, service connection was previously denied for the veteran's bladder carcinoma by rating decisions dated in September 1993 and May 1995. Further, he was notified of both decisions, including his right to appeal, and he did not appeal. In this regard, he testified at his July 2002 hearing that the severity of his bladder cancer prevented him from filing a timely Notice of Disagreement at the time of those decisions. The Board is aware of the severity of the veteran's ongoing medical problems, dating back to 1993, from a review of the voluminous medical records. However these records show that, despite the need for ongoing treatment and care from family members, during the period beginning in September 1993, after the rating decision, the veteran was frequently described as oriented, alert and doing well. For example, in a report by Dr. P. Strutz, dated in November 1993, well within the time frame to file a notice of disagreement to the May 1993 rating decision, it was noted that the veteran had no mental dysfunction. In fact, the veteran asked whether he could return to work, and Dr. Strutz indicated that he could, since his work did not require physical exertion. The veteran was seen in an emergency room in July 1994, after he had fallen after striking a curb while riding his bike. He denied significant complaints. In October 1994, certain medical procedures were recommended to the veteran, and he indicated that he wanted to go home to conduct medical research. In August 1996 he was noted to work on his computer many hours each day. In October 1996 he was described as being alert and "peppy," and in February 1997, he was reported to be doing extremely well, assisting with the household chores. While the Board does not wish to immunize the significant disability the veteran has experienced due to his bladder cancer and other illnesses, nothing in the record indicates that such information was reported to the RO at the time of these denials, nor that it was otherwise communicated to VA that an extension was requested for initiating and/or perfecting an appeal to either of these rating decisions. See 38 C.F.R. § 20.303. Simply put, there was nothing at that time to indicate he was unable to respond the prior denials, particularly as he was not shown to have any such impairment in filing his VA Forms 21-526 in May 1993 and October 1994. Moreover, for the reasons detailed above, the Board has concluded that these decisions were not the subject of CUE. Therefore, these decisions became final. 38 C.F.R. § 20.1103. Accordingly, the effective date assigned for the subsequent grant of service connection cannot be earlier than the date VA received the application to reopen. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. Here, a thorough review of the record indicates that no written communication was received by VA from the veteran in which he indicated he was seeking service connection for a bladder disorder until the new VA Form 21-526 which was received on November 18, 1997. See Rodriguez, supra. As this is the current effective date for the establishment of service connection, the Board finds that there is no legal basis upon which to award the veteran an earlier effective date. Thus, the benefit sought on appeal must be denied. ORDER Inasmuch as the September 1993 and May 1995 rating decisions were not the product of CUE, the appeal is denied. Entitlement to an effective date earlier than November 18, 1997, for the grant of service connection for transitional cell carcinoma of the bladder, status-post radical cystectomy with impotence, is denied. ____________________________________________ N. R. ROBIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs