Citation Nr: 0738589 Decision Date: 12/07/07 Archive Date: 12/13/07 DOCKET NO. 06-13 716 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE 1. Whether the August 22, 1950 rating decision was clearly and unmistakably erroneous (CUE) in denying entitlement to service connection for stomach condition, possibly ulcers. 2. Entitlement to an effective date earlier than March 21, 1995, for entitlement to service connection for cholecystectomy residuals. 3. Entitlement to the assignment of an initial rating higher than 30 percent for cholecystectomy residuals. REPRESENTATION Appellant represented by: Thomas P. Higgins, Attorney ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The veteran had active service from September 1944 to March 1946. This appeal to the Board of Veterans' Appeals (Board) arose from an April 2005 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA) in Roanoke, Virginia, which granted service connection for cholecystectomy residuals and assigned an initial rating of 10 percent, effective March 21, 1995. An August 2005 rating decision granted service connection for a cholecystectomy abdominal scar, and assigned a 10 percent rating effective March 21, 1995. In December 2005, the veteran claimed that an August 1950 rating decision was clearly and unmistakably erroneous. In February 2006, the RO received the veteran's Notice of Disagreement with the initial 10 percent rating, wherein he asserted that his residuals should have been rated at least at 30 percent disabling. In a March 2006 Decision Review Officer decision increased the rating for the cholecystectomy residuals to 30 percent, effective March 21, 1995. Although 30 percent is the maximum schedular rating for the cholecystectomy residuals, 38 C.F.R. § 4.114, Diagnostic Code (DC) 7318 (2007), there is no evidence that the veteran has withdrawn his appeal of the initial rating, and his substantive appeal also requests extra-schedular consideration. Thus, the decision below will address the issue of the initial rating for the cholecystectomy residuals. For good cause shown, the Board advanced his case on the docket. See 38 U.S.C.A. § 7107 (West 2002 & Supp. 2007); 38 C.F.R. § 20.900(c) (2007). FINDINGS OF FACT 1. An August 1950 rating decision which denied entitlement to service connection for a "stomach condition, possibly ulcers" was supported by the evidence then of record and was consistent with the law and regulations then in effect. 2. The veteran's claim to reopen the issue of entitlement to service connection for a stomach disorder, now classified as residuals of a cholecystectomy, was presented not prior to March 21, 1995. 3. The veteran's cholecystectomy residuals are not manifested by a marked impact on employment or frequent hospitalization. CONCLUSIONS OF LAW 1. The August 1950 rating decision was not clearly and unmistakably erroneous. 38 U.S.C.A. § 5109A (West 2002 and Supp. 2007); 38 C.F.R. §§ 3.77, 3.80, 3.95 (1949); § 3.105(a) (2007). 2. The requirements for an effective date prior to March 21, 1995, for a grant of entitlement to service connection for cholecystectomy residuals are not met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.159, 3.400 (2007). 3. The requirements for the assignment of an initial rating higher than 30 percent for cholecystectomy residuals have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.321(b), 4.1, 4.3, 4.7, 4.114, Diagnostic Code (DC) 7318 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION CUE Claim Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) became law in November 2000. Given the parameters of the law surrounding CUE claims, however, the duties to notify and assist imposed by the VCAA are not applicable where CUE is claimed in prior RO decisions. Livesay v. Principi, 15 Vet. App. 165 (2001). Governing Law and Regulation Previous determinations, which are final and binding, including decisions of service connection, degree of disability and other issues, will be accepted as correct in the absence of CUE. 38 U.S.C.A. § 5109A; 38 C.F.R. § 3.105(a). To establish a valid CUE claim, a veteran 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 (1992). The veteran must assert more than a disagreement as to how the facts were weighed or evaluated. Crippen v. Brown, 9 Vet. App. 412, 418 (1996). The United States Court of Appeals for Veterans Claims (Court) has propounded the following three-pronged test to determine whether CUE is present in a prior determination: (1) Either the correct facts, as they were known at the time, were not before the adjudicator (that is, more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at that time were incorrectly applied; (2) the error must be "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made;" and (3) a determination that there was CUE must be based on the record and law which existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994), quoting Russell, 3 Vet. App. at 313-14. If a veteran wishes to reasonably raise a claim of CUE, there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error that, if true, would be CUE on its face, persuasive reasons must be given as to why one would be compelled to reach the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the alleged error. Fugo v. Brown, 6 Vet. App. 40, 44 (1993). If the error alleged is not the type of error that, if true, would be CUE on its face; if the veteran is only asserting disagreement with how the RO evaluated the facts before it; or if the veteran has not expressed with specificity how the application of cited laws and regulations would dictate a "manifestly different" result, the claim must be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Luallen v. Brown, 8 Vet. App. 92, 95 (1995). Further, VA's failure in the duty to assist cannot constitute CUE. Cook v. Principi, 318 F.3d 1334, 1346 (Fed. Cir. 2003). The veteran asserts that the rating board committed clear and mistakable error by applying an incorrect legal standard in the April 1950. Specifically, the RO determined that proof of a diagnosis of a disorder or disease within one year of service was required for service connection, rather than evidence that a disorder or disease manifested to a degree of 10 percent. Analysis In October 1949, the RO received the veteran's formal claim of entitlement to service connection for a "stomach condition: 1945 (possibly ulcers)." The RO encountered difficulty obtaining all of the veteran's pertinent medical records from the outset. Service medical records in the claim file at the time his claim was received were negative for any entries related to complaints, findings, or treatment for stomach related disorders. A June 1945 entry noted an admission for nasopharyngitis. The March 1946 Report Of Examination For Discharge notes the veteran's 1945 treatment for malaria in the Philippine Islands. No pertinent complaints or abnormalities are noted. The examiner assessed the veteran's abdominal wall and viscera as normal. He was assessed as physically fit for discharge. VA records from January 1947 note the veteran's report of an 18 day history of right upper quadrant pain. Examination revealed abdominal tenderness of the right upper quadrant. The diagnosis was hepatitis. A VA July 1947 summary notes the veteran's May 1947 admission after his presentation with complaints of severe epigastric pain over the prior five to six months, which was relieved by alkalin and food ingestion. He also reported a burning sensation in the epigastrium and frequent nausea but no actual vomiting. A tentative diagnosis of duodenal ulcer was entered at admission. He was treated with sedation, antispasmodics, and alkalin therapy. The veteran's symptoms improved with the treatment, but an upper GI series failed to reveal the presence of gastric or duodenal ulcers. He was discharged symptom-free, and the final diagnosis was an acute exacerbation of chronic gastritis. The veteran was admitted to a VA facility again in November 1947. The summary notes that the appellant underwent a cholecystectomy approximately five months earlier, and that his symptoms had recurred several times afterwards. The veteran reported he was awakened by the sudden onset of epigastric pain involving the entire abdomen, followed by vomiting and nausea. At discharge from the hospital the veteran was diagnosed with acute severe nasopharyngitis and acute severe gastritis. In response to the RO's development efforts, the veteran's private physician submitted a VA Form 10-2614 in November 1949. It noted that, in July 1947, the veteran complained of pain over the epigastrium, nausea, vomiting, and occasional diarrhea. He denied hematemesis or melena. Examination revealed hypertrophied tonsils, and examination of the abdomen revealed tenderness over the epigastrium. The gall bladder did not visualize on a gall bladder visualization. In late July 1947, a cholecystectomy was performed. The pertinent diagnosis on discharge was chronic cholecystectomy. In a January 1950 letter, E. Colon-Yordan, M.D., noted that the veteran was discharged from service in April 1946, and that he was hospitalized on several occasions for complaints of nausea and vomiting. In November 1946, a cholecystectomy was performed. In May 1947, he was seen at Damas Hospital with complaints of epigastric pain and nausea. An upper gastrointestinal series in July 1947 led to a diagnosis of chronic gastritis. Chronic gastritis was again diagnosed following a November 1947 hospitalization. The veteran informed the RO that he was treated for stomach related complaints during his active service, including one occasion while aboard a Naval vessel. The RO was unable to obtain records to confirm the veteran's assertion, despite repeat attempts to do so. In a January 1950 affidavit, Mr. [redacted] avowed that he served with the veteran in Hawaii from December 1945 to March 1946 and, during that period, the veteran frequently complained of severe stomach pain. At times, the pain caused the veteran to grip his stomach, bend forward, and become short of breath. He also stated he saw the veteran vomit on numerous occasions, and that the veteran had to be hospitalized while they were being transported to Puerto Rico by ship. Mr. [redacted] submitted a March 1950 affidavit, in which he avowed that he knew the veteran while they were in the Philippine Islands from July 1945 to March 1946. The veteran frequently complained of stomach pain, and he also had frequent visits to sick call. In response to the RO's inquiry, the U.S. Army adjutant general verified that those individuals and the veteran were assigned to the same location for at least brief periods of time in 1945. The August 1950 rating decision noted the veteran's post- service treatment as set forth above, but the veteran's service records noted no complaints or treatment for stomach related symptoms. Further, the separation examination noted the veteran's stomach as normal. The decision determined that, in the absence of evidence of complaint or treatment during service for a stomach condition, there was no basis for a grant of service connection. The decision then noted that service connection for a duodenal ulcer required a diagnosis of the disorder within one year of separation from active service, yet the initial diagnosis of duodenal ulcer was subsequently changed to gastritis after a hospital workup, and the diagnosis was not offered again. An August 1950 RO letter informed the veteran of the decision, and there is no issue or dispute as to whether he received it. He did not appeal the decision, and it became final and binding on him in accordance with applicable law. Thus, as set forth above, it is only via a claim of CUE that it may be revisited. In addition to the assertions in his notice of disagreement, the veteran asserted in his substantive appeal that, besides misstating the legal standard, was the disorder compensably disabling versus a firm diagnosis, the August 1950 rating decision was clearly and unmistakably erroneous in determining there was no evidence of complaints or treatment in service. It is asserted that there was medical and lay evidence that the veteran's gall bladder was removed to treat a continuity of severe epigastric pain and nausea that began during service, and that the pertinent evidence was in the post-service discharge summaries of his in-patient treatment. The Board finds that there was no CUE in the rating authority's August 1950 determination. The legal standard the RO applied to the veteran's claim was essentially the same as the one currently applied. See 38 C.F.R. §§ 3.77, 3.80, 3.95 (1949). There had to be evidence, medical or lay, that the disorder in question was incurred in service or otherwise causally related to the veteran's service. There is no evidence that the correct facts as they were known at that time were not before the rating authority. The only evidence before the rating authority in 1950 that the veteran may have received in-service treatment for his stomach-related symptoms were the lay affidavits of the noted persons who stated they served with him. There was no competent evidence showing in-service treatment. While the August 1950 rating decision did not reference the lay statements, they were clearly of record and known to the rating authority, as indicated by the action to verify that the persons were in fact assigned to the same locality as the veteran at the time they claimed. The reasonable inference supported by the evidence is that the rating authority accorded more weight to the state of the service medical records-which were negative for stomach complaints, the examination at discharge, and the clinical findings of the veteran's post-service treatment, than the lay statements of the veteran's fellow soldiers. Their statements were probative only to the extent that they observed the veteran exhibit or complain of stomach problems at that particular point in time. They would not have been competent evidence that the appellant had a chronic stomach disorder in-service. There also is the fact that the medical evidence before the rating authority noted diagnoses of an acute disorder. While they noted the veteran's complaints, the post-service discharge summaries noted no complaints or history from the appellant that he experienced similar symptoms during his active service. None of the medical reports of record in 1950 noted any causal relationship between the veteran's then current symptoms and his active service. Thus, the veteran's assertions constitute an effort to reweigh the evidence then of record. That does not prove CUE. A similar finding applies to the opinion of the independent medical examiner, Dr. Bash which was not received by VA until March 2005, almost 55 years after the rating decision in question. In his report, Dr. Bash opined that the pain the veteran had in service was likely the first sign of his chronic gall bladder problem. Dr. Bash clearly bases his opinion that there was in-service evidence of abdominal pain on the lay statements, as he connects them with the post-service medical evidence to support his opinion. It was entirely appropriate for Dr. Bash to accord probative weight to the lay statements, but it was not legally required that the rating authority accord similar weight to those statements in 1950. The Board further finds that there was no CUE in the rating authority determining that service connection on a presumptive basis was not shown by the evidence of record. Even if it was incorrect to state that a firm diagnosis was required, the factual state of the record is that the veteran did not manifest a disorder or disease that was subject to presumptive service connection. In August 1950 there was no competent evidence that the veteran presented competent evidence of compensably disabling ulcer disorder within one year of separation from active duty, and gall bladder disorders were not then on the list of diseases subject to service connection on a presumptive basis. See 38 C.F.R. §§ 3.80, 3.85 (1949). Accordingly, while the veteran was treated for his gall bladder symptoms within six months of his discharge from active service, it was not a presumptive disorder. Further, none of the medical authorities who treated the veteran after discharge opined or noted that there was chronicity of his symptomatology from his active service up to his treatment that started in 1947. Thus, there is no basis for a finding of CUE in the August 1950 rating decision. 38 C.F.R. § 3.105(a). Effective Date VCAA The requirements of the VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126, have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the veteran in April 2006 of the information and evidence needed to substantiate and complete a claim for an increased rating and how effective dates are determined, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. VA has fulfilled its duty to assist the veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. See 38 C.F.R. § 3.159. VA informed him of the need to submit all pertinent evidence in his possession. While the veteran may not have received full notice prior to the initial decision, after notice was provided he was afforded a meaningful opportunity to participate in the adjudication of the claims. The claims were readjudicated in a January 2007 statement of the case. The veteran was provided the opportunity to present pertinent evidence and testimony. In sum, there is no evidence of any VA error in notifying or assisting him that reasonably affects the fairness of this adjudication. Governing Law and Regulation In the absence of CUE in the August 1950 rating decision, the effective date of the veteran's grant of service connection is determined by the applicable regulatory criteria. As concerns awards following an application to reopen a previously denied claim on the basis of new and material evidence, if an allowance is made on evidence other than service department records, and the application is received after final disallowance, the effective date is the date of receipt of new claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(ii), which is the same as the general rule for reopened claims. See 38 C.F.R. § 3.400(r). There is no indication in the claims file that the veteran disputes how the April 2005 rating decision determined his effective date, hence explaining the submission of a motion that the August 1950 rating decision was clearly and unmistakably erroneous. The 2005 rating decision based the assigned effective date on the date his claim to reopen was received, i.e., March 21, 1995. Prior to that submission the claims file does not reveal evidence of an earlier claim, and certainly, there was no evidence that entitlement arose prior to that date. In this latter context, the Board observes by law service connection requires evidence of the disorder in-service, evidence of a current disability, and competent evidence linking the disorder to service. 38 U.S.C.A. § 1110 (West 2002). At best, this was not received prior to the March 2005 submission of a report from Dr. Bash, that is, years after the currently assigned date, and years after receipt of the March 1995 claim. Thus, entitlement to an effective date prior to March 21, 1995, is not in order. 38 C.F.R. § 3.400. Initial Rating Governing Law and Regulation Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that the rule from Francisco does not apply where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, as is the case with the veteran's post-operative gall bladder residuals. Rather, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as 'staged' ratings. Fenderson, 12 Vet. App. At 126. Analysis The maximum rating for removal of the gall bladder is 30 percent. 38 C.F.R. § 4.114, DC 7318. As already noted, the veteran was assigned an initial rating of 30 percent as of March 1995, the date his entitlement arose. Thus, there is no basis for a higher rating under the rating schedule. The RO determined that the veteran's disability did not present such an exceptional disability picture so as to merit submission for extra-schedular consideration. Extra-Schedular Consideration In exceptional cases, where the rating schedule is deemed inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The Board is precluded from granting an increased rating on an extra-schedular basis in the first instance. 38 C.F.R. § 3.321(b)(1); Floyd v. Brown, 9 Vet. App. 88, 95 (1996). The Board may, however, determine whether a particular claim merits submission for an extra-schedular evaluation. Brannon v. West, 12 Vet. App. 32, 35 (1998). Further, where the RO has considered the issue of an extra-schedular rating and determined it inapplicable, the Board is not specifically precluded from affirming a RO conclusion that a claim does not meet the criteria for submission pursuant to 38 C.F.R. § 3.321(b)(1) for an extra-schedular rating. Bagwell v. Brown, 9 Vet. App. at 339. Analysis The veteran has not submitted any evidence that the rating schedule is inadequate to address his post-operative gall bladder residuals or that his disability picture is exceptional. There is no evidence that his post-operative gall bladder residuals have a marked impact on his employment, or that he has experienced frequent hospitalization as a result. Thus, the Board finds no basis on which to disagree with the RO's determination that the veteran's disability picture is not unusual or exceptional so as to merit a referral to the Under Secretary for Benefits, or the Director, Compensation and Pension Service, for extra-schedular consideration. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). ORDER An August 1950 rating decision was not clearly and unmistakably erroneous in denying entitlement to service connection for a "stomach condition, possibly ulcers." Entitled to an effective date earlier than March 21, 1995, for entitlement to service connection for cholecystectomy residuals is denied. Entitlement to the assignment of an initial rating higher than 30 percent for cholecystectomy residuals is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs