Citation Nr: 1017481 Decision Date: 05/12/10 Archive Date: 05/26/10 DOCKET NO. 05-21 308A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an effective date earlier than December 31, 1998, for the award of service connection for vision loss. 2. Entitlement to an effective date earlier than December 31, 1998, for the award of service connection for residual scar with hair loss. 3. Entitlement to an effective date earlier than September 10, 2002, for the award of service connection for absent reflexes of the right lower extremity. 4. Entitlement to an effective date earlier than September 10, 2002, for the award of service connection for absent reflexes of the left lower extremity. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD A. P. Simpson, Counsel INTRODUCTION The Veteran served on active duty from June 1973 to August 1976. This case comes before the Board of Veterans' Appeals (Board) on appeal from several rating decision of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO). The record raises an issue of whether there was clear and unmistakable error in the evaluations assigned to the service-connected right and left lower extremity reflex disorders in the June 2004 rating decision. This issue has not been adjudicated by the agency of original jurisdiction. Therefore, the Board does not have jurisdiction over it and it is referred to the agency of original jurisdiction for appropriate action. The Board finds, however, that the question whether there was clear and unmistakable error in the evaluations assigned to absent reflexes of the right and left lower extremities is not inextricably intertwined with the issues involving whether the Veteran is entitled to an earlier effective date for the award of service connection for such disabilities. Thus, the Board may decide the effective date issues on appeal. In a document from the Veteran received in February 2008, he claimed clear and unmistakable error in the assignment of an effective date of September 10, 2002, for the award of service connection for absent reflexes of the right and left lower extremities. This is an invalid claim for clear and unmistakable error, as the June 2004 rating decision that assigned the effective date of September 10, 2002, is still on appeal as to these two issues. A claim of clear and unmistakable error involves a rating decision that has become final. Since the September 2004 rating decision is on appeal, the appellant will not be required to meet the higher evidentiary standard of showing a clear and unmistakable error. FINDINGS OF FACT 1. The Veteran first filed a claim of entitlement to service connection for vision loss, and for a residual scar with hair loss on December 31, 1998. 2. The Veteran first filed an informal claim of entitlement to service connection for absent reflexes of the right and left lower extremities on September 10, 2002. 3. There was no formal claim, informal claim, or written intent to file a claim of entitlement to service connection for vision loss or residual scar with hair loss prior to December 31, 1998. 4. There was no formal claim, informal claim, or written intent to file a claim of entitlement to service connection for absent lower extremity reflexes prior to September 10, 2002. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than December 31, 1998, for the award of service connection for vision loss have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.1, 3.155, 3.400 (2009). 2. The criteria for an effective date earlier than December 31, 1998, for the award of service connection for residual scar with hair loss have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.1, 3.155, 3.400. 3. The criteria for an effective date earlier than September 10, 2002, for the award of service connection for absent right lower extremity reflexes have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.1, 3.155, 3.400. 4. The criteria for an effective date earlier than September 10, 2002, for the award of service connection for absent left lower extremity reflexes have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.1, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act As service connection for vision loss, residual scar with hair loss, and absent lower extremity reflexes has been granted, and as initial ratings and initial effective dates have been assigned, the notice requirements of 38 U.S.C.A. § 5103(a), have been met. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). As to the duty to assist, VA has obtained VA treatment records dated as early as 2001 and obtained private medical records identified by the Veteran. The Veteran has submitted private medical records. The Veteran has not identified any other evidence that needs to be obtained. VA did not provide the Veteran with an examination in connection with his claims of entitlement to earlier effective dates, as they do not meet the statutory requirements for entitlement to a VA examination or medical opinion. See 38 U.S.C.A. § 5103A(d)(2)(A)-(C) (West 2002); 38 C.F.R. § 3.159(c)(4)(A)- (C) (2009). VA has also provided the Veteran with four hearings before Decision Review Officers and a hearing before the undersigned Veterans Law Judge. At the January 2010 Board hearing, the Veteran submitted additional evidence. He provided a written statement that he was waiving initial consideration of that evidence by the agency of original jurisdiction. Nevertheless, the Board notes that the agency of original jurisdiction has reviewed this additional evidence, as it was already part of the claims file. The Veteran has been provided the opportunity to meaningfully participate in the adjudication of his claims and did in fact participate. Washington v. Nicholson, 21 Vet. App. 191 (2007). Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. II. Analysis The Veteran alleges that service connection for vision loss, residual scar with hair loss, and absent reflexes of the lower extremities should be granted as of either the day following his discharge from service or somewhere between 1978 and 1979. At the January 2010 hearing before the undersigned, the Veteran testified that his difficulties with his lower extremities were first documented in 2001, to include during a June 2001 VA examination report. He stated he was having problems prior to 2001, but that the June 2001 VA examination report provided proof of his problems. As to the claims involving vision loss and residual scar, the Veteran asserts that he attempted to file a claim for service connection back in 1979 but was provided "false and misleading information" by VA employees at the Dallas Medical Center and the Waco RO. The Veteran testified that he was going to college back in 1979 and wanted to join the ROTC program. He stated he went to take a physical and had a document from a private physician indicating he had undergone removal of a tumor in 1978. That document is a Standard Form 513, entitled "Clinical Record." In that document, the physician stated that the Veteran had been under his care since August 1978 and he had undergone surgery that month for removal of a benign tumor. The Veteran stated he was told by two ROTC instructors that the military had rejected him due to the removal of the tumor and that he needed to go apply for VA benefits. The Veteran testified he physically went to the VA Medical Center in Dallas, Texas, and used the Standard Form 513 to apply for VA benefits. He informed the VA employee that he wanted to file a claim for service connection for the tumor because he had been rejected from service. The Veteran stated the VA employee told him that he had to have filed a claim for service connection for that disability within one year of his discharge from service. He stated he subsequently called the VA regional office in Waco to confirm that fact. The Veteran stated that the VA employee who answered the phone confirmed that the Veteran needed to file a claim within one year following his discharge from service. The Veteran added that his mother had provided an affidavit attesting to that fact. The Veteran argued that under the "discovery rule," he should be awarded service connection for his disabilities as of the day following his discharge from service or from the time he underwent surgery. He also argued that because VA provided incorrect information, he should be granted benefits back to 1978, since he had filed a claim back then. The assignment of effective dates of VA awards is generally governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on a claim for compensation (i.e., service connection) "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) (emphasis added). The implementing regulation clarifies this to mean that the effective date of service connection/compensation will be, "[d]ate of receipt of claim or date entitlement arose, whichever is later." 38 C.F.R. § 3.400 (emphasis added). Under 38 C.F.R. § 3.155(a), the veteran or a representative of the veteran can file an informal claim by communicating an intent to apply for one or more VA benefits. The benefit sought must be identified, see Stewart v. Brown, 10 Vet. App. 15, 18 (1997), but need not be specific, see Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). See id. The communication must be in writing. See 38 C.F.R. § 3.1(p) (2009) (defining "claim" as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit). After having carefully reviewed all the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claims of entitlement to earlier effective dates for the awards of entitlement to service connection for vision loss, residual scar with hair loss, and absent lower extremity reflexes. The reasons follow. The Board will address the issues involving vision loss and residual scar with hair loss separately from the issues involving absent lower extremity reflexes. Vision loss and residual scar with hair loss The Veteran has provided testimony in multiple hearings and statements regarding having filed a claim of entitlement to service connection involving residuals of a tumor removal in 1979. He has submitted an affidavit from his mother attesting to the fact that the Veteran was given incorrect information regarding his ability to file a claim for service connection in 1979. The Board concludes that no prior claim was filed by the Veteran in 1979 for several reasons. First, in his December 1998 VA Form 21-526, Veteran's Application for Compensation or Pension, when specifically asked, "Have you previously filed a claim for any benefit with VA?," the appellant specifically checked only the box addressing "Veterans Educational Assistance." See item 9B. He specifically did not check the box addressing "Disability Compensation or Pension." Thus, the Veteran had the sense to check the box that he had filed a claim for veterans educational assistance but neglected to check the box that would have indicated he had filed or attempted to file a prior claim for compensation or pension. The Veteran's failure to check the box involving compensation was intentional in that the appellant had not filed a claim of entitlement to service connection previously. Supporting this finding is the fact that the box he checked in response to that question is entirely consistent with the evidence in the claims file. For example, the evidence shows the Veteran filed a claim for educational assistance in August 1976. Thus, a file was created in 1976 pertaining to the Veteran. However, there is nothing in the file to show the Veteran filed a claim for compensation (i.e., service connection) in 1979, or at any time prior to December 1998. The Board accords the statement the Veteran made in the December 1998 VA Form 21-526 more probative value than the subsequent statements he made once service connection was awarded. Indeed, in the VA Form 21-526, the Veteran attested to the truth of the statements he made in the application, see section above item 42, certifying that the statements are "true and complete," and the Board has no reason to question the credibility of the Veteran's December 1998 statement. Again, such statement is completely consistent with documentation in his claim file. The Board finds that the Veteran's subsequent allegations of being provided incorrect or fraudulent information are not credible. The Board is aware that at his July 2004 hearing, the Decision Review Officer stated she believed the Veteran's story. See transcript on page 29. The Board is not bound by her opinion and it is required to make its own credibility determination. The Veteran's allegations that more than one VA employee provided him fraudulent information strains credulity. While it is certainly possible that a VA employee provided inaccurate information, the Board finds it difficult to believe that more than one VA employee would provide false information with the intent to deceive the Veteran. That is what the Veteran has alleged-that the providing of incorrect information was intentional. The Veteran has made similar allegations against the Decision Review Officers with whom he has had hearings. The Board notes this pattern of accusing VA employees of conspiring against him throughout the record, which further lessens the credibility of his allegations of a conspiracy because such allegations are far fetched, based upon the Board's review of the evidence of record. See statement from Veteran received in July 2005. As to the Veteran's mother's affidavit, she has written that the appellant attempted to file a claim for service connection for his residuals of the tumor removal in 1979 and that VA refused to allow him to submit a claim. The Board rejects the facts she has described for two reasons. One, her facts are identical to those of the Veteran's, which facts the Board rejects for the reasons described above. Two, she has alleged these detailed facts more than 26 years later. The detail she provided is not credible when considering the length of time involved. It seems the Veteran has told his mother what to write. Her claim that the VA employee refused to allow the Veteran to file a claim at that time is not credible. Still, assuming arguendo that VA employees provided the Veteran with incorrect, false, and misleading information, such does not establish a basis to award an earlier effective date. See McTighe v. Brown, 7 Vet. App. 29 (1994). In that case, a widow of the veteran went to the regional office to file a claim for death benefits in 1987. The appellant claimed that the veterans benefits counselor told her that her income was too great to receive benefits. The appellant stated that she had relied on that information and did not file a claim at that time. In 1990, the appellant read an article in a magazine and discovered she was entitled to death benefits and filed a claim. The appellant was awarded death benefits as of 1990. She appealed the effective date assigned and argued that her visit to the RO should have been considered an informal claim. The United States Court of Appeals for Veterans Claims held that even if the appellant had received incorrect information from VA in 1987, because payment of benefits must be authorized by statute, "erroneous advice given by a government employee cannot be used to estop the government from denying benefits." Id. at 30 (relying on OPM v. Richmond, 496 U.S. 414, 424 (1990)). In other words, the Court was acknowledging that even though the appellant had been provided incorrect information, the statute provides that the effective date of a claim for benefits will be no earlier than the date of claim and that the date of the appellant's claim in McTighe was in 1990. "The statute in this case specifically provides that the effective date is the date of application. Although the appellant may have received erroneous advice from the veterans benefits counselor at the RO, she is not entitled to an earlier effective date based on estoppel." Id. at 30. The statute in that case is the same one that applies in this Veteran's case. See 38 U.S.C.A. § 5110. In the current case, the date of claim is December 31, 1998, is the earliest date available to the Veteran. The Veteran's assertions that he can claim estoppel in obtaining an earlier effective date are incorrect. The Veteran has admitted that he first filed a formal claim for service connection involving residuals of his tumor removal on December 31, 1998. See July 2004 hearing transcript on page 28. There is nothing in the record prior to the date the VA Form 21-526 was received (here, December 31, 1998) to establish an intent on the part of the Veteran (or a representative of the Veteran, including a member of Congress) to file a claim for service connection involving tumor removal residuals. 38 C.F.R. §§ 3.1(p), 3.155. Thus, entitlement to an effective date earlier than December 31, 1998, for the award of service connection for visual loss and residual scar with hair loss, which are residuals of his tumor that were present at the time he filed his claim, is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran has argued that the federal laws have been violated by VA employees in 1979 and during the appeal process and that VA must apply certain rules like the "discovery rule" and the "but for" test to the issues on appeal. Such a rule and such a test do not apply in a claim before VA. The Board is bound by the applicable statutes and regulations pertaining to VA, precedential opinions of the VA General Counsel, decisions of the United States Court of Appeals for Veterans Claims, decisions of the United Stated Circuit Court of Appeals for Federal Claims, and decisions of the United States Supreme Court. 38 U.S.C.A. § 7104(c) (West 2002); 38 C.F.R. § 19.5 (2009). The Board has reviewed the January 2007 letter written by Dr. Craig Bash, wherein he asserts that the Veteran's effective date for his "disease and secondary surgical complications" should be retroactive to 1976 from a "medical standpoint." This opinion does not assist the Veteran in obtaining an earlier effective date. The adjudication of VA compensation claims falls under laws that both Congress and the Secretary have passed. Congress has passed a specific statute that addresses how effective dates involving VA benefits are assigned. The gist of the provisions of 38 U.S.C.A. § 5110 are that the effective date will be based upon facts found but not earlier than the date of claim. VA has defined a "claim" as a written communication requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. § 3.1(p). Thus, even if the Veteran's disability had its onset in 1978 and the surgical complications developed soon thereafter, the date he showed written intent to file a claim of entitlement to service connection for residuals involving the removal of the tumor not prior to December 31, 1998. Therefore, entitlement to an earlier effective date is not warranted. Lastly the Veteran did not appeal the effective date assigned in September 2001 for residuals of osteochondroma of the brain with headaches and mild depression. That effective date is December 31, 1998. An effective date for additional residual symptoms due to a disability (such as removal of a tumor) cannot be earlier than the date the main disability was awarded. The benefit sought on appeal is denied. Absent reflexes of the lower extremities Unlike vision loss and residual scar with hair loss, which were assigned the same effective date as the residual of osteochondroma, the RO assigned the symptoms involving the reflexes of the lower extremities a later effective date; here, September 10, 2002. The Veteran has acknowledged that the reflexes in his lower extremities were not affected in 1979. At the January 2010 hearing, the Veteran stated he felt that the absent reflexes were first documented in a June 2001 VA neurological examination report. In the report, the examiner stated the following, in part: Lower extremities were also completely normal, there was no muscle atrophy and no sensory modalities were abnormal. All sensory modalities were completely normal. Reflex responses were psychological (sic) and symmetrical and no reflex abnormalities were found. Actually it was not completely symmetrical because the left knee reflex could be elicited with reinforcement only. I have no explanation for this part of the report. In summary, we see a 46[-]year[-]old ... veteran who has completely normal neurological examination but complaints of chronic headache syndrome of which the reason is not really found. . . . The Veteran argues that the finding made by the June 2001 examiner wherein he stated the reflexes of the lower extremities were not "completely symmetrical because the left knee reflex could be elicited with reinforcement only" is evidence of absent lower extremity reflexes. The implication is that the effective date for the absent reflexes of the lower extremities should be June 15, 2001. The Board disagrees with the Veteran's interpretation of the June 2001 VA examination report. First, the examiner's clinical finding involves the left knee only. The examiner found that right lower extremity reflexes showed no abnormalities. Second, while the reflexes in the left knee were not found the first time the examiner tested them, the reflexes were elicited with reinforcement. In other words, the examiner found reflexes in the Veteran's left knee after his first attempt, which would indicate reflexes were indeed present. Third, nowhere in this VA examination report did the examiner conclude that the Veteran had absent lower extremity reflexes. Instead, the examiner described the Veteran's entire neurological examination as "completely normal." The Board acknowledges that Dr. Bash, in his January 2007 letter, stated that the VA examiner "noted asymmetrical reflexes with absent left knee reflex." While it appears the reflex was not elicited the first time, it was subsequently elicited with "reinforcement," which means that the reflexes were not absent. Dr. Bash fails to address the VA examiner's specific finding of "the left knee reflex could be elicited with reinforcement." Thus, to the extent that Dr. Bash would conclude that the Veteran had an absent reflex in his left lower extremity in June 2001, the Board finds that the June 2001 VA examiner's opinion is significantly more probative. The VA examiner concluded that the Veteran's neurological examination was "completely normal" even after he noted the issue involving the reflexes in the left knee. Additionally, the VA examiner physically examined the Veteran in June 2001 and would have a better understanding of the Veteran's neurological state at that time, which he found to be "completely normal." In contrast, Dr. Bash reviewed the examination report. He did not physically examine the Veteran in June 2001. Also, Dr. Bash failed to reconcile his opinion with the fact that the VA examiner was able to elicit reflexes in the Veteran's left knee during reinforcement. This causes his medical opinion to be incomplete. For these reasons, Dr. Bash's medical opinion is accorded significantly lessened probative value. The first time the Veteran indicated difficulties with his lower extremities was in a statement submitted by him on September 10, 2002; hence, the basis for the assigned effective date. The Board finds nothing prior to September 10, 2002, that establishes an intent on the part of the Veteran to file a claim of entitlement to for service connection involving lower extremity reflexes. See 38 C.F.R. §§ 3.1(p), 3.155. The Board has reviewed all the evidence of record, including the multiple submissions by the Veteran prior to September 19, 2002. Nowhere in these submissions does the Veteran indicate he is having problems with his lower extremities. Dr. Bash's January 2007 letter does not establish intent on the part of the Veteran in June 2001 for service connection for absent reflexes of the lower extremities. See 38 C.F.R. § 3.155(a) and (b) (describing who can and cannot file a claim on behalf of the veteran). Accordingly, the Board finds no basis to award an effective date earlier than September 10, 2002, for the grant of service connection for absent reflexes of the lower extremities since there was no evidence of an intent by the Veteran to file a claim for service connection for such disabilities two prior to this date. Moreover, even assuming that there was such an intent, the preponderance of the evidence is against finding absent lower extremity reflexes. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Subpoenas The Veteran has submitted formal demands for VA to subpoena various VA employees pursuant to the provisions of 38 C.F.R. § 2.2 (2009). Initially, the Veteran has not filed a motion for a subpoena to the Board in compliance with the provisions of 38 C.F.R. § 20.711(c) (2009). That regulation states the claimant must submit the motion to the Director of Management and Administration of the Board. That has not been done. As a result, the Board finds no basis to consider a motion to subpoena to the Board. In his May 2007 motion to the RO, the Veteran sought to subpoena the director of the RO in Waco, Texas, and the director's wife. His reasons for wanting to subpoena the director is to show there is a "'custom' and 'practice' still inside the VA system today where corruption and payback are still present inside the fiduciary office." He alleges that VA has thrown away, misplaced, and/or destroyed evidence that he has submitted to VA, which has prevented him from obtaining benefits. The RO did not issue a decision addressing the Veteran's motion. Significantly, the Veteran has not shown any prima facie evidence that VA has committed any of the acts he accuses it of having committed against him personally. The Veteran uses his allegations of having attempted to submit a claim for service connection back in 1979 as part of this evidence. As stated above, the Board rejects the Veteran's allegations regarding events in 1979 as not credible. To reiterate, the Board does not believe that the Veteran either attempted to or actually filed an informal claim for compensation benefits back in 1979. During the current appeal, the Veteran faxed a document to VA. VA claimed it did not receive the document, and the Veteran accused VA of destroying the fax because he had proof that the fax was received. See March 2006 e-mail exchange. Thus, the Veteran is attacking the presumption of regularity. See Woods v. Gober, 14 Vet. App. 214, 220 (2000) ("There is a presumption of regularity that attaches to actions of public officials." citing INS v. Miranda, 459 U.S. 14, 18 (1982); United States v. Chemical Foundation, 272 U.S. 1, 14- 15 (1926)). The Court has applied the presumption of regularity to "all manner of VA processes and procedures." Id. at 220. The only evidence upon which the Veteran relies to make his allegation of a conspiracy are his own assertions. This is insufficient to rebut the presumption of regularity, as he has failed to submit evidence that the adjudicatory process was not followed in connection with his claims. See id. In other words, he has not submitted evidence to rebut the presumption of regularity. The Board also finds that the facts upon which the Veteran is basing his request for a subpoena to be neither relevant to his current appeal nor credible. In going through the four volumes of the Veteran's claims folder, the Board did not come to the conclusion that any evidence had been destroyed, evidence of a conspiracy against the Veteran, or evidence that the Veteran has been denied benefits to which he is entitled. Indeed, since the Veteran filed his claim for compensation benefits in December 1998, he has been awarded a schedular 100 percent evaluation and special monthly compensation benefits. Finally, while the provisions of 38 C.F.R. § 2.2 are silent as to this issue, under the provisions of 38 C.F.R. § 20.711(a), it states that a subpoena will not be issued to compel the attendance of VA adjudicatory personnel. The Board finds that a good argument can be made that the director of the RO would fall under adjudicatory personnel. 38 U.S.C.A. § 512(a) (West 2002). Thus, he cannot be subpoenaed. In January 2008, the Veteran again filed a motion with the RO that the director and the director's wife be subpoenaed. He also requested that VA physicians at the VA Medical Center in Dallas, Texas, be subpoenaed for various reasons. He asserted one examiner was known for saying "no" to service connection involving hearing loss. (The Veteran had been denied service connection for hearing loss.) He did not provide any reasons for wanting to subpoena the other VA physicians. He asserts violations of his constitutional rights involving due process. The RO did not address the Veteran's motion, and the Board finds the Veteran has not been prejudiced by such. Again, the Veteran relies upon his own statements without any objective evidence that he has been prejudiced by the adjudication process. The Veteran has been given ample opportunity to submit evidence and argument throughout the appeal process. He has had four hearings with Decision Review Officers and a hearing before the Board. The Board has reviewed the evidence of record and finds that the Veteran's reasons for wanting to subpoena these witnesses are not remotely convincing. ORDER Entitlement to an effective date earlier than December 31, 1998, for the award of service connection for vision loss is denied. Entitlement to an effective date earlier than December 31, 1998, for the award of service connection for residual scar with hair loss is denied. 3. Entitlement to an effective date earlier than September 10, 2002, for the award of service connection for absent reflexes of the right lower extremity is denied. 4. Entitlement to an effective date earlier than September 10, 2002, for the award of service connection for absent reflexes of the left lower extremity is denied. ________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs