Citation Nr: 1035489 Decision Date: 09/20/10 Archive Date: 09/28/10 DOCKET NO. 05-36 312 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Whether there was clear and unmistakable error (CUE) in rating decisions dated in January 1960, March 1960, and April 1968 with respect to the reduction in compensation, the assigned rating and effective date of compensation for sinusitis, maxillary and frontal, for accrued benefits purposes. 2. Entitlement to a rating in excess of 10 percent for bilateral blepharitis, for accrued benefits purposes. 3. Entitlement to a rating in excess of 10 percent for maxillary and frontal sinusitis with hypertrophic rhinitis, for accrued benefits purposes. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), for accrued benefits purposes. 5. Entitlement to an effective date earlier than June 28, 2001, for the award of service connection for bilateral eyelid laxity secondary to bilateral blepharitis, for accrued benefits purposes. REPRESENTATION Appellant represented by: Polly Murphy, Attorney WITNESSES AT HEARING ON APPEAL Appellant and P.L. ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is the surviving spouse of the Veteran who served on active duty from September 1950 to September 1954. The Veteran died in December 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision by the Muskogee, Oklahoma, Regional Office (RO) of the Department of Veterans Affairs (VA), which in pertinent part denied entitlement to accrued benefits. In March 2007, the appellant testified at a videoconference hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The record reveals that a February 2008 Board decision granted entitlement to service connection for bilateral eyelid laxity for accrued benefits purposes, denied entitlement to service connection for diabetes mellitus for accrued benefits purposes, and remanded the issues of entitlement to increased ratings for bilateral blepharitis and maxillary and frontal sinusitis for accrued benefits purposes, entitlement to TDIU for accrued benefits purposes, and whether rating decisions in January 1960, March 1960, and April 1998 involved CUE for accrued benefits purposes. In a March 2008 rating decision the RO established service connection for bilateral eyelid laxity for accrued benefits purposes and assigned a 20 percent rating effective from June 28, 2001. The issue of entitlement to an earlier effective date was addressed in an April 2009 rating decision. The appellant subsequently perfected an appeal as to this issue. The case was remanded by the Board for additional development in November 2009. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of this appeal has been obtained. 2. By correspondence dated August 15, 2010, received prior to the promulgation of a decision in the appeal, the Board received notification from the appellant though her attorney that a withdrawal of the issue on appeal of whether there was CUE in rating decisions dated in January 1960, March 1960, and April 1968 with respect to the reduction in compensation, the assigned rating and effective date of compensation for sinusitis, maxillary and frontal, for accrued benefits purposes, is requested. 3. By correspondence dated August 15, 2010, received prior to the promulgation of a decision in the appeal, the Board received notification from the appellant though her attorney that a withdrawal of the issue on appeal of entitlement to a rating in excess of 10 percent for bilateral blepharitis, for accrued benefits purposes, is requested. 4. By correspondence dated August 15, 2010, received prior to the promulgation of a decision in the appeal, the Board received notification from the appellant though her attorney that a withdrawal of the issue on appeal of entitlement to a rating in excess of 10 percent for maxillary and frontal sinusitis with hypertrophic rhinitis, for accrued benefits purposes, is requested. 5. By correspondence dated August 15, 2010, received prior to the promulgation of a decision in the appeal, the Board received notification from the appellant though her attorney that a withdrawal of the issue on appeal of entitlement to TDIU, for accrued benefits purposes, is requested. 6. An effective date for the award of service connection for bilateral eyelid laxity secondary to bilateral blepharitis, for accrued benefits purposes, was assigned from the date of the Veteran's claim on June 28, 2001. 7. There is no evidence of any earlier unadjudicated formal or informal claim as to the issue of service connection for bilateral eyelid laxity secondary to bilateral blepharitis. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal by the appellant as to whether there was CUE in rating decisions dated in January 1960, March 1960, and April 1968 with respect to the reduction in compensation, the assigned rating and effective date of compensation for sinusitis, maxillary and frontal, for accrued benefits purposes, have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2009). 2. The criteria for withdrawal of the appeal by the appellant as to entitlement to a rating in excess of 10 percent for bilateral blepharitis, for accrued benefits purposes, have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2009). 3. The criteria for withdrawal of the appeal by the appellant as to entitlement to a rating in excess of 10 percent for maxillary and frontal sinusitis with hypertrophic rhinitis, for accrued benefits purposes, have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2009). 4. The criteria for withdrawal of the appeal by the appellant as to entitlement to TDIU, for accrued benefits purposes, have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2009). 5. The criteria for an effective date earlier than June 28, 2001, for the award of service connection for bilateral eyelid laxity secondary to bilateral blepharitis, for accrued benefits purposes, have not been met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2009); 38 C.F.R. § 3.400 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawn Appeals The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2009). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the appellant's attorney has withdrawn the appeal as to the issues of whether there was CUE in rating decisions dated in January 1960, March 1960, and April 1968 with respect to the reduction in compensation, the assigned rating and effective date of compensation for sinusitis, maxillary and frontal, for accrued benefits purposes, entitlement to a rating in excess of 10 percent for bilateral blepharitis, for accrued benefits purposes, entitlement to a rating in excess of 10 percent for maxillary and frontal sinusitis with hypertrophic rhinitis, for accrued benefits purposes, and entitlement to TDIU, for accrued benefits purposes. There remain no allegations of errors of fact or law for appellate consideration as to these matters. Accordingly, the Board does not have jurisdiction to review the appeals and they are dismissed. Remaining Issue on Appeal The only remaining issue on appeal is entitlement to an effective date earlier than June 28, 2001, for the award of service connection for bilateral eyelid laxity secondary to bilateral blepharitis, for accrued benefits purposes. The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by Court have been fulfilled by information provided to the appellant in a February 2009 letter from the RO. That letter notified the appellant of VA's responsibilities in obtaining information to assist in completing the claim and identified her duties in obtaining information and evidence to substantiate her claim. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006), Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006). The February 2009 letter adequately informed her that the VCAA notice requirements applied to all elements of a claim. The Board finds further efforts to obtain additional records would be futile. The available evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations and to move forward with the claim would not cause any prejudice to the appellant. Earlier Effective Date Claim VA law provides that the effective date for an award of disability compensation based on an original claim for direct service connection, if the claim is received within one year after separation from service, shall be the day following separation from active service or the date entitlement arose; otherwise, and for reopened claims, it shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.400 (2009). The Court has held that the failure to consider evidence which may be construed as an earlier application or claim, formal or informal, that would have entitled the claimant to an earlier effective date is remandable error. See Lalonde v. West, 7 Vet. App. 537, 380 (1999); see also 38 U.S.C.A. § 7104(a); Servello v. Derwinski, 3 Vet. App. 196, 198-99 (1992). The Court has held, however, that the Board is not required to conjure up issues that were not raised by an appellant. See Brannon v. West, 12 Vet. App. 32 (1998). VA regulations also provide that the terms claim and application mean 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) (2009). Generally, the date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102 (2009). Based upon the evidence of record, the Board finds that an effective date earlier than June 28, 2001, for the award of service connection for bilateral eyelid laxity secondary to bilateral blepharitis, for accrued benefits purposes, is not warranted. There is no evidence of any earlier unadjudicated formal or informal claim seeking service connection for this specific disorder. In Deshotel v. Nicholson, 457 F.3d 1258 (Fed. Cir. 2006), the United States Court of Appeals for the Federal Circuit (Federal Circuit) found that where a veteran files more than one claim with the RO at the same time and the RO's decision acts (favorably or unfavorably) on one of the claims, but fails to specifically address the other claim, the second claim is deemed denied, and the appeal period begins to run. The proper remedy under such circumstances is to file a timely notice of disagreement as to the RO's failure to address that claim. The Federal Circuit subsequently held that the "implicit denial rule" established in Deshotel applies where a regional office's decision provides a veteran with reasonable notice that his claim for benefits was denied. It was noted that whether or not the regional office's decision was appealed has no bearing on the reasonableness of the notice afforded by that decision. See Adams v. Shinseki , 568 F.3d 956, 964 (Fed. Cir. 2009). The record in this case shows the Veteran was provided adequate notice as to the service connection determinations made as a result of his December 1997 claims and his appellate rights by correspondence dated April 17, 1998. Although he appealed the denial of a rating in excess of 10 percent for his service- connected blepharitis disability, there is no indication from his statements that he wished to pursue entitlement to secondary service connection for eyelid laxity. It is also significant to note that the January 31, 1998, VA examination report which noted a 2+ lower lid laxity likely secondary to a history of eye rubbing with poor eyelid approximation to globe did not include a diagnosis of blepharitis, the specific service-connected disability. There is no indication that the provided eye disorder diagnoses in January 1998 had either developed or had been aggravated by the service-connected disability. The February 2008 Board decision which established entitlement to secondary service connection for eyelid laxity also noted that the Veteran had other eye disabilities that may have contributed to his eye rubbing. The issue of entitlement to eyelid laxity as secondary to the service-connected blepharitis disability may not reasonably be construed as having been raised prior to the receipt of the claim received on June 28, 2001. The Board finds there is no evidence of any earlier unadjudicated formal or informal claim as to the issue and no indication that entitlement to service connection for bilateral eyelid laxity secondary to bilateral blepharitis arose on any earlier date. Further, the Court has held that the mere presence of a disability does not establish intent on the part of a veteran to seek service connection for that condition. KL v. Brown, 5 Vet. App. 205, 208 (1993); Crawford v. Brown, 5 Vet. App. 33, 35 (1995). Therefore, the claim for entitlement to an effective date earlier than June 28, 2001, for the award of service connection for bilateral eyelid laxity secondary to bilateral blepharitis, for accrued benefits purposes, must be denied. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The preponderance of the evidence in this case is against the appellant's claim. ORDER The appeal as to whether there was CUE in rating decisions dated in January 1960, March 1960, and April 1968 with respect to the reduction in compensation, the assigned rating and effective date of compensation for sinusitis, maxillary and frontal, for accrued benefits purposes, is dismissed. The appeal as to entitlement to a rating in excess of 10 percent for bilateral blepharitis, for accrued benefits purposes, is dismissed. The appeal as to entitlement to a rating in excess of 10 percent for maxillary and frontal sinusitis with hypertrophic rhinitis, for accrued benefits purposes, is dismissed. The appeal as to entitlement to TDIU, for accrued benefits purposes, is dismissed. Entitlement to an effective date earlier than June 28, 2001, for the award of service connection for bilateral eyelid laxity secondary to bilateral blepharitis, for accrued benefits purposes, is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs