Citation Nr: 0923973 Decision Date: 06/25/09 Archive Date: 07/01/09 DOCKET NO. 08-30 880 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an effective date earlier than November 7, 2006 for the award of service connection for end stage renal disease, to include the issue of whether an August 1998 RO rating decision which denied service connection for renal disease should be revised or reversed on the grounds of clear and unmistakable error (CUE). REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The Veteran served on active duty from October 1950 to April 1976. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles California. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2008). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. An August 1998 RO rating decision, which denied a claim of service connection for chronic renal failure, is final. 2. The evidence before the RO in August 1998, either actual or constructive, did not establish that the Veteran manifested nephrosclerosis and/or an arteriosclerotic kidney disorder, or otherwise manifested renal disease attributable to service or a service-connected cause. 3. The RO's August 1998 rating decision was correct based upon the evidence and law which existed at that time and did not involve undebatable error which would have manifestly changed the outcome of the decision. 4. The Veteran submitted an application to reopen a claim of service connection for renal disease on November 7, 2006; there are no written documents between the August 1998 denial and November 7, 2006 which may be considered a formal or informal application to reopen. CONCLUSIONS OF LAW 1. An August 1998 RO rating decision, which denied a claim of service connection for chronic renal disease, is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2008). 2. The criteria for entitlement to an effective date earlier than November 7, 2006 for the award of service connection for end stage renal disease, to include revising or reversing a final August 1998 RO rating decision on the grounds of CUE, have not been met. 38 U.S.C.A. §§ 5109A, 5110 (West 2002); 38 C.F.R. §§ 3.104, 3.105, 3.151(a), 3.400 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION Section 5110(a), title 38, United States Code, provides that "[u]nless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication . . . of compensation . . . 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(a). The implementing regulation, 38 C.F.R. § 3.400, similarly states that the effective date "will be the date of receipt of the claim or the date entitlement arose, whichever is the later." In pertinent part, the effective date for reopened claims is the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(r). The VA administrative claims process recognizes formal and informal claims. A formal claim is one that has been filed in the form prescribed by VA. See 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). An informal claim may be any communication or action, indicating an intent to apply for one or more benefits under VA law. Thomas v. Principi, 16 Vet. App. 197 (2002). See 38 C.F.R. §§ 3.1(p), 3.155(a). An informal claim must be written, see Rodriguez v. West, 189 F. 3d. 1351 (Fed. Cir. 1999), and it must identify the benefit being sought. Brannon v. West, 12 Vet. App. 32, 34-5 (1998). Although a claimant need not identify the benefit sought "with specificity," see Servello v. Derwinski, 3 Vet. App. 196, 199-200 (1992), some intent on the part of the veteran to seek benefits must be demonstrated. See Brannon v. West, 12 Vet. App. 32, 34-35 (1998). See also Talbert v. Brown, 7 Vet. App. 352, 356-7 (1995) (noting that while VA must interpret a claimant's submissions broadly, VA is not required to conjure up issues not raised by claimant). The United States Court of Appeals for the Federal Circuit has emphasized VA has a duty to fully and sympathetically develop a veteran's claim to its optimum. Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). This duty requires VA to "determine all potential claims raised by the evidence, applying all relevant laws and regulations," Roberson v. West, 251 F.3d 1378, 1384 (Fed. Cir. 2001), and extends to giving a sympathetic reading to all pro se pleadings of record. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). The Veteran has alleged CUE in the RO's August 1998 rating decision which denied service connection for chronic renal disease, and this issue has been addressed in the proceedings before the RO. The Board, therefore, has jurisdiction to review this aspect of the claim. Pursuant to 38 C.F.R. § 3.104(a), "[a] decision of a duly constituted rating agency . . . shall be final and binding . . . based on evidence on file at the time and shall not be subject to revision on the same factual basis." See also 38 U.S.C.A. § 5108. An exception to this rule is when the VA has made CUE in its decision pursuant to 38 C.F.R. § 3.105. See 38 U.S.C.A. § 5109A (an RO decision is subject to revision or reversal on the grounds of CUE). An additional exception, involving circumstances where previously unconsidered service records were not associated with the claims folder, does not apply. See 38 C.F.R. § 3.303(c). Under 38 C.F.R. § 3.105(a), VA must reverse or amend a prior decision "[w]here evidence establishes [CUE]." The United States Court of Appeals for Veterans Claims (Court) defines a determination of CUE in a prior adjudication to mean that: (1) "[e]ither 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," (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 the law that existed at the time of the prior ... decision." Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). "In order for there to be a valid claim of [CUE], . . . [t]he claimant, in short, must assert more than a disagreement as to how the facts were weighed or evaluated." Id.; see also Eddy v. Brown, 9 Vet. App. 52, 54 (1996). An asserted failure to evaluate and interpret correctly the evidence is not CUE. Id. See Damrel v. Brown, 6 Vet. App. 242, 245-246 (1994). A general breach of duty to assist also cannot constitute basis for CUE claim. See Shockley v. West, 11 Vet. App. 208, 213-14 (1998); Caffrey v. Brown, 6 Vet. App. 377, 383-84 (1994) (breach of duty to assist cannot constitute basis for CUE claim). This is especially evident when the alleged breach is a failure to obtain new medical evidence as opposed to already existing evidence. See Simmons v. West, 13 Vet. App. 501, 508 (2000). Furthermore, a failure to obtain an examination cannot constitute the basis for a claim of CUE because "there is . . . no way of knowing what such an . . . examination would have yielded . . . , so it could not be concluded that it 'would have manifestly changed the outcome.'" Hazan v. Gober, 10 Vet. App. 511, 522-23 (1997) (citing Russell v. Principi, 3 Vet. App. 310, 315 (1992) (en banc)). An alleged "misdiagnosis" of disorder cannot form the basis of a CUE claim. See Henry v. Derwinski, 2 Vet. App. 88, 90 (1992) ("[A] new medical diagnosis that 'corrects' an earlier diagnosis ruled on by previous adjudicators is the kind of 'error' that could not be considered an error in the original adjudication"). Historically, the Veteran has been service-connected for hypertension since May 1984. On May 12, 1998, the Veteran filed a claim of service connection for "renal failure." In support of his claim, the Veteran submitted VA clinical records reflecting a diagnosis of "chronic renal failure" with laboratory reports demonstrating abnormally high creatinine and BUN levels. Notably, no cause or etiology for the diagnosis of "chronic renal failure," or further clarification of the diagnosis, was provided, providing no evidence to support this claim. In May 1998, the RO initiated a VA compensation and pension (C&P) examination request to investigate a claim of secondary service connection for renal complications due to hypertension. On June 8, 1998, the RO contacted the Veteran by telephone who requested the RO to obtain his inpatient and outpatient clinical records from the VA Medical Center (VAMC) in Long Beach, California. Notably, most of these records were obtained at that time. On June 13, 1998, the Veteran failed to report for VA C&P examination. The Veteran did not provide good cause for failing to appear, or request a rescheduling of this examination. In a rating decision dated August 1998, the RO denied a claim of service connection for chronic renal disease holding that the "[e]vidence received in connection with this claim fails to establish any relationship between hypertension and history of renal failure." Notably, the RO determined that the diagnosis of chronic renal failure was in question and, in their view, was based upon the Veteran's report of history. The RO also noted that, as a result of the Veteran's failure to report for VA examination, "[e]vidence expected from this examination which might have been material to the outcome of this claim could not be considered." The Veteran was provided notice of this decision, and his appellate rights, by letter dated August 13, 1998. The record does not reflect that the Veteran filed a written document within one year from the date of notice indicating an intent to appeal the RO's decision. That decision, therefore, became final. See 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. In pertinent part, the record reflects that the Veteran filed an application to reopen his claim of service connection for renal disease on November 7, 2006, and the RO has granted service connection for end stage renal disease effective to the date of the Veteran's application to reopen. The Veteran primarily argues his entitlement to an effective date to May 12, 1998 for the award of service connection for end stage renal disease, which represents the date of his original service connection application. See Informal Hearing Presentation dated May 2009. It is argued that the RO's August 1998 decision should be revised or reversed on the basis of CUE due to the following errors: 1) it is argued that RO substituted its own medical conclusion for determining that a current disability of chronic renal failure secondary to hypertension was not shown by the evidence of record; 2) citing to VAOPGCPREC 12-95 and Bell v. Derwinski, 2 Vet. App. 611 (1992), it is argued that the RO failed to obtain all available VA clinical records and that such error would have proven a current diagnosis of chronic renal failure secondary to hypertension; and 3) citing to VA's Adjudication Procedure Manual M21-1 (M21-1) then in effect, it is argued that the RO had a mandatory obligation to service connect chronic renal failure. The law extant in August 1998 essentially required a claimant to meet three factors in substantiating a service connection claim: (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in- service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in- service disease or injury and the present disability. See generally Caluza v. Brown, 7 Vet. App. 498, 506 (1995); aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). Unless all three factors were met, VA could not assist a claimant by providing examination or obtaining medical opinion as the claim was considered not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999). Service connection could be awarded on a secondary basis for disability proximately due to or the result of a service- connected disease or injury. 38 C.F.R. § 3.310 (1998). In July 1992, the Court issued a decision in Bell v. Derwinski, 2 Vet. App. 611 (1992) which held that VA has constructive notice of VA-generated documents that could reasonably be expected to be part of the record, and that such documents are thus constructively part of the record before the Secretary and the Board, even where they are not actually before the adjudicating body. In VAOPGCPREC 12-95, VA's General Counsel concluded that the constructive-notice rule announced in Bell must be considered applicable to all agency of original jurisdiction (AOJ) decisions rendered on or after the date the opinion, so that the record in those AOJ decisions would be deemed to include all pertinent VA medical evidence in existence on the date of the AOJ decisions, regardless of whether such evidence was actually in the record before the AOJ. It was further concluded that an AOJ's failure, in a decision rendered on or after July 21, 1992, to consider evidence which was actually or constructively in the record before it may constitute CUE if it affected the outcome of the prior decision. See Damrel v. Brown, 6 Vet. App. 242 (1992). VA's Adjudication Procedure M21-1, Part IV, Subchapter V, Section 7.20(c), in effect at the time of the RO's August 1998 decision, educated the rating specialist that long- standing hypertension of sufficient degree may cause impairment of circulation to the bodily organs. Examples of possible impairments to the brain, heart and renal functioning were provided. In pertinent part, it was noted that "[n]ephrosclerosis" "may occur" with impairment of renal function. The rating specialist was thereby instructed, at M21-1, Part IV, Subchapter V, Section 7.20(c)(2), as follows: If any of the above arteriosclerotic manifestations are diagnosed in a veteran who presents a service-connected hypertension, hold him/her to be service-connected through his/her relationship to the hypertension. The Court addressed the legal effect of M21-1 provisions in Fugere v. Derwinski, 1 Vet. App. 103, 197 (1990). The Court identified "substantive" rules which have the force of law where it "prescribes what action must be taken in the initial levels of adjudication" and narrowly limits administrative action. On the other hand, some M21-1 provisions are deemed interpretative in nature where it merely clarifies or explains an existing rule or statute. In Hamilton v. Derwinski, 2 Vet. App. 671, 675 (1992), the Court held that substantive rules in M21-1 are binding on VA. For purposes of this decision, the Board will presume that the provisions of M21-1, Part IV, Subchapter V, Section 7.20(c)(2) were substantive in nature, inasmuch as a veteran with longstanding hypertension who presented with "[n]ephrosclerosis" or an other "arteriosclerotic" manifestation of hypertension would be held as service- connected on a secondary basis. This language is directive and mandatory in nature. Nephrosclerosis is defined as "sclerosis or hardening of the kidney; the condition of the kidney due to renovascular disease." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, 218TH Ed., p. 1109 (1994). With respect to the first two CUE allegations, the Board finds merit to the arguments that the VA clinical records prior to August 1998 established a current disability of "chronic renal failure." The RO stated that the VA medical records noted such a diagnosis only by history provided by the Veteran. See generally LeShore v. Brown, 8 Vet. App. 406, 409 (1995) ("a bare transcription of a lay history is not transformed into 'competent medical evidence' merely because the transcriber happens to be a medical professional.") However, the VA clinical records before the RO included a June 1994 VA C&P examination report reflecting a diagnosis of "elevated creatinine of 1.5" and an April 1998 VA discharge summary clearly reflecting a "DISCHARGE DIAGNOSIS" of "CHRONIC RENAL FAILURE." The Veteran's subsequent VA clinical records in May 1998 and June 1998 (which were before the RO) reflected a diagnosis of "[c]hronic renal failure" in the problem list. However, the RO's failure to recognize a current diagnosis of chronic renal failure is not, in and of itself, a sufficient basis to revise or reverse its August 1998 decision. Under the law then in effect, the Veteran held the burden to establish that his chronic renal failure was attributable to service or service-connected disability by medical nexus evidence. See Caluza, 7 Vet. App. at 506; 38 C.F.R. § 3.310. Alternatively, the Veteran had the burden to establish that he manifested "[n]ephrosclerosis" or another form of "arteriosclerotic" manifestation of hypertension which could, in effect, be presumptively service-connected under M21-1, Part IV, Subchapter V, Section 7.20(c)(2). The totality of VA clinical records in existence at the time of the RO's August 1998 rating decision, whether actually of record or then constructively of record (simply stated, all medical records either with the RO or at the VAMC), contain no competent medical evidence associating the Veteran's diagnosed chronic renal failure to service or to service- connected hypertension. Furthermore, none of these records reflected a diagnosis of "[n]ephrosclerosis" or otherwise attributed the chronic renal failure as an "arteriosclerotic" manifestation. Rather, the etiology of the Veteran's renal failure was not known at that time. Quite simply, the RO's failure to recognize a diagnosis of chronic renal failure, and its failure to obtain existing additional VA clinical records deemed constructively of record, did not constitute CUE as an outcome determinative error did not occur. The record before the RO, actual and constructive, did not demonstrate that the Veteran's chronic renal failure was attributable to service or service- connected cause, and did not establish a diagnosis of a kidney disorder due to renovascular disease. Based on the above, the RO had no basis, under Caluza, 38 C.F.R. § 3.310 or M21-1, Part IV, Subchapter V, Section 7.20(c)(2), to grant the Veteran's claim based on the state of the evidence in August 1998. Notably, the RO did schedule the Veteran for VA examination to clarify the diagnosis and etiology of his chronic renal failure. As reflected in the examination request, the RO required clarification as to whether the Veteran manifested renal complications due to hypertension. In 1998, VA had the authority to require VA examination when the medical evidence accompanying the claim was not adequate for rating purposes. 38 C.F.R. § 3.326(a) (1998). As the Veteran failed in his duty to report for VA examination, the RO had no option but to decide the claim based on the evidence of record, which was insufficient to grant the claim. See 38 C.F.R. § 3.655(b) (1998). As noted by the Court itself, a claimant who fails to report for VA examination assumes the risk of having the claim being denied. Turk v. Peake, 21 Vet. App. 565, 567 (2008). The inadequacy concerning the Veteran's diagnosis in August 1998 is belied by the VA clinical records generated after the August 1998 denial. For example, a magnetic resonance imaging (MRI) scan of the Veteran's kidneys in 1999 demonstrated multiple cysts. In 2000, the Veteran was diagnosed with polycystic kidney disease which may be hereditary in nature. See VA clinician assessment in March 2005 (discussing that polycystic kidney disease may be acquired or hereditary in nature). See also DORLAND's, p. 487 (noting two forms of polycystic kidney disease, autosomal recessive and autosomal dominant, which are hereditary in nature). There are also assessments that the Veteran's renal failure may be due to diabetes mellitus. See VA clinical record dated July 2005, October 2006, and February 2007). Simply stated, the record, even now, does not fully support the grant of this claim. Such facts do not support the concept that it was unmistakably wrong to deny this claim in the first rating action. On this record, the Board must find that the RO's August 1998 rating decision was correct based upon the evidence and law which existed at that time and did not involve undebatable error which would have manifestly changed the outcome of the decision. The evidence before the RO reflected a diagnosis of chronic renal failure, not "[n]ephrosclerosis" or other "arteriosclerotic" manifestation of hypertension, of unknown etiology. Unfortunately, the Veteran's failure to report of VA examination prevented a clarification of the diagnosis. It is important for the Veteran to understand that all information contained in VA clinical records existing at the time of the August 1998 decision, whether or not associated with the claims folder, did not provide a basis to grant the claim, undermining the contentions that the RO's denial was "undebatably" wrong. The Board acknowledges that an RO rating specialist proposed a finding of CUE in the August 1998 decision, but a rating decision was not promulgated. The rating specialist correctly concluded that a diagnosis of chronic renal failure had been established, and concluded with hindsight from medical opinion in 2007 that the Veteran's hypertension was a factor in the development of his kidney disease. However, the Board must limit the CUE determination to the evidence of record existing in August 1998. As noted by the rating specialist, this contained some laboratory abnormalities and a diagnosis of chronic renal failure but no more. For the reasons expressed above, the Board cannot come to the conclusion that the RO committed any outcome determinative error in its August 1998 decision. Notably, the Compensation and Pension Service determined that CUE had not been committed in August 1998, noting that VA had no duty to obtain VA clinical records. However, this opinion, which is contrary to VAOPGCPREC 12-95, is disregarded by the Board. The Board is bound by the applicable statutes and regulations pertaining to VA and precedential opinions of the Office of the General Counsel of VA. 38 U.S.C.A. § 7104(c). In sum, the Board finds no basis to revise or reverse the RO's August 1998 denial of service connection for chronic renal disease on the basis of CUE. Otherwise, the record reflects that, after the August 1998 denial, the Veteran next submitted a written document on November 7, 2006 requesting a reopening of his claim. This document serves as the basis for reopening the claim, the grant of service connection for end stage renal disease, and the assignment of an effective date of award. On review of the record, the Board finds no written document between the August 1998 rating decision and the November 7, 2006 application to reopen indicating an intent to reopen this claim. This aspect of the claim, therefore, must also be denied. The Board is cognizant that VA clinical records reflect that the Veteran's renal disease has been present since 1998 and possibly earlier. However, this fact is irrelevant for effective date purposes. Notably, VA treatment records may only serve as an informal claim for benefits once a formal claim for compensation has been allowed. 38 C.F.R. § 3.157. Additionally, the mere presence of medical evidence of a disability in VA clinical records does not show an intent on the Veteran's part to seek service connection and therefore does not constitute a claim; rather, the Veteran must assert a claim either expressly or impliedly. See 38 C.F.R. § 3.155. The law is clear that the effective date for a grant of service connection on the basis of the receipt of new and material evidence following a final prior disallowance is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(q)(1)(ii) (2008). See Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005); Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003). The Veteran's claim, therefore, must be denied as a matter of law. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2008). Here, the Veteran is challenging the effective date assigned following the grant of service connection. In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. The Board further notes that the earlier effective date claim on appeal involves a retroactive review of the documents of record, actual or constructive, prior to the effective date of award assigned. With respect to the filing dates of the application to reopen, there are no issues of fact in dispute which must be resolved to decide this case, rather the case involves a review of the documents and statements of record to determine whether the legal standard for an earlier filed claim. With respect to the CUE aspect of this claim, VCAA notice is not applicable. See Parker v. Principi, 15 Vet. App. 407 (2002). Overall, this case ultimately involves a claim that cannot be substantiated as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law); VAOPGCPREC 5-2004 (June 23, 2004) (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). Thus, further VCAA notice is not required. The provisions of 38 U.S.C.A. § 5103A require VA to provide assistance to the claimant in the development of the claim. In this case, the record contains all records relevant to the Veteran's claim on appeal. Notably, the Veteran has challenged the August 1998 RO decision, in part, based upon an argument that the RO had constructive notice of VA clinical records which had not been associated with the claims folder. At this time, all known pertinent VA clinical records have been associated with the claims folder. For the reasons specified above, any additional private or VA treatment records, or Social Security records, could not provide a basis to grant this claim. See 38 C.F.R. §§ 3.155, 3.157. The issue in this is not the actual onset of disease but, rather, the legal issue of when a claim for service connected benefits was filed with VA or, alternatively, whether a prior decision in 1998 could be revised or reversed on the basis of CUE. Accordingly, VA has no further duty to assist the Veteran in the development of his claim. ORDER The claim of entitlement to an effective date earlier than November 7, 2006 for the award of service connection for end stage renal disease, to include the issue of whether an August 1998 RO rating decision which denied service connection for renal disease should be revised or reversed on the grounds of CUE, is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs