Citation Nr: 1304100 Decision Date: 02/05/13 Archive Date: 02/08/13 DOCKET NO. 02-01 667 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Anchorage, Alaska THE ISSUES 1. Entitlement to an effective date prior to September 29, 2000, for the grant of a 100 percent rating for hypothyroidism, status post thyroidectomy with depression, weight gain, cold intolerance, and sleepiness. 2. Whether there was clear and unmistakable error (CUE) in a January 1999 rating decision, which denied service connection for obesity as secondary to service-connected thyroid disease with thyroidectomy. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from January 1981 to May 1985. The case was originally before the Board of Veterans' Appeals (Board) on appeal from a July 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Anchorage, Alaska, which granted a 100 percent rating for hypothyroidism, effective from September 29, 2000. The Veteran appealed for an earlier effective date. In September 2003, the Board remanded the case to the RO for further development. In a March 2005 decision, the Board denied the Veteran's claim for an earlier effective date. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). In January 2008, the Court issued a Memorandum Decision that affirmed the Board's decision in part, and set aside and remanded the decision in part for further adjudication consistent with the instructions outlined in the Court's decision. The Court's January 2008 decision found, among other things, that the Veteran's argument of CUE in a November 1985 rating decision as to the initial rating assigned for the Veteran's status post thyroidectomy - which was an allegation that was inextricably intertwined with the earlier effective date issue on appeal - had not been raised before the Board and that the Court did not have jurisdiction to address the issue. The record reflects that this claim was first raised before the Court. In October 2008, the Board remanded the case to the RO for further development related to the claim of CUE in the November 1985 rating decision. In a June 2009 rating decision, the RO adjudicated the claim of CUE in the November 1985 rating decision, denying the claim. The Veteran initiated an appeal of that rating decision. In August 2010, the Board remanded the case to the RO for the issuance of a statement of the case with respect to the claim of CUE in the November 1985 rating decision, and meanwhile deferred adjudication of the earlier effective date matter. The Veteran thereafter perfected his appeal regarding the CUE matter. In a September 2011 decision, the Board determined that there was no CUE in a November 1985 rating decision as to the initial rating assigned for the Veteran's status post thyroidectomy, and remanded the case to the RO for additional development on the earlier effective date matter. Following development, the case has now been returned to the Board for further consideration. However, as previously noted by the Board in its remands of October 2008 and August 2010, the Court in its January 2008 decision also found that the Board had not addressed the Veteran's argument regarding whether a January 1999 rating decision, which denied a claim of service connection for obesity as secondary to hyperthyroidism, contained CUE because it did not consider evidence before it at that time. This issue was properly before the Board at the time of the Board's March 2005 decision, because it had previously been adjudicated by the RO. The allegation of CUE in the January 1999 rating decision is addressed in this decision, as it is intertwined with the earlier effective date issue on appeal. The Veterans Law Judge who issued the initial Board decision in March 2005 has retired, and beginning with the October 2008 Board remand the case has been reassigned to the undersigned. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. In an unappealed rating decision of January 1999, the RO denied service connection for obesity as secondary to service-connected thyroid disease with thyroidectomy; the rating decision was reasonably supported by the evidence of record at that time and was consistent with the laws and regulations then in effect. 2. On September 29, 2000, the Veteran filed a claim for an increased evaluation for hypothyroidism. 3. An increased evaluation was not factually ascertainable within the one year period prior to receipt of the September 29, 2000 claim for increase. 4. There was no informal claim, formal claim, or written intent to file a claim for an increased evaluation for hyperthyroidism prior to September 29, 2000. CONCLUSIONS OF LAW 1. There was no CUE in the January 1999 rating decision, which denied service connection for obesity as secondary to service-connected thyroid disease with thyroidectomy. 38 U.S.C.A. § 5109A (West 2002); 38 C.F.R. § 3.105 (2012). 2. An effective date prior to September 29, 2000 for the award of a 100 percent evaluation for hypothyroidism is not warranted. 38 U.S.C.A. §§ 1155, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.105(a), 3.155, 3.157, 3.400, 4.119, Diagnostic Code (Code) 7903 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Regarding the allegation of CUE in the January 1999 rating decision, VCAA notice is not required because the issue presented is a claim for revision of a prior final RO decision on the basis of CUE. See Parker v. Pincipi, 15 Vet. App. 407 (2002). The matter involving an earlier effective date for the award of a 100 percent evaluation for hypothyroidism is discussed below. Duty to Notify Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where, as here, a 100 percent rating for hypothyroidism has been granted, and an effective date has been assigned, the underlying claim for a higher rating has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the initial notice in April 2001 by telephone and in May 2001 by letter (informing him of the evidence necessary to substantiate the claim for an increased rating) was intended to serve has been fulfilled. Once the claim for a higher rating has been substantiated, the filing of a notice of disagreement with the RO's decision assigning an effective date does not trigger additional 38 U.S.C.A. § 5103(a) notice. Therefore, further VCAA notice under 38 U.S.C.A. § 5103(a) and § 3.159(b)(1) is no longer applicable in the claim for an earlier effective date, following the grant of a higher rating for hypothyroidism. Goodwin v. Peake, 22 Vet. App. 128 (2008). Furthermore, the Veteran has been issued a statement of the case (SOC) and supplemental SOCs (SSOCs) which also describe what evidence was to be provided by him and what evidence the VA would attempt to obtain on his behalf. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The RO also supplied the Veteran with the applicable regulations addressing earlier effective dates in the SOC and SSOCs. Moreover, the Veteran has been represented by competent counsel, who has demonstrated in statements such as those found in written briefs filed at the Court in May 2006 and November 2006, his understanding of what evidence was needed to prevail on the claim for an earlier effective date. His current representative has also furnished written briefs in September 2008, June 2010, August 2011, and December 2012, in support of the Veteran's argument, prior to the Board's consideration of the claim. Such actual knowledge serves to cure any defect in notice. Mayfield v. Nicholson, 19 Vet. App. 103, 121 (2005). As recently as in December 2012, the Veteran, after issuance of a November 2012 SSOC, indicated that he did not have any additional evidence to submit regarding his appeal and desired that his case be certified to the Board for consideration. The requirements of the duty to notify under the VCAA have been fulfilled. Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO obtained VA records, namely, VA treatment records dated from 1994 to the present and fee-basis medical records dated from 1987 to the present, and attempted without success to obtain records from the Social Security Administration (the Veteran was duly notified of this in October 2012 and November 2012). He has not identified any additional records that would aid in substantiating the claim. Further, given the nature of the earlier effective date claim, which is largely based on historical records, VA has not conducted contemporaneous medical inquiry in an effort to substantiate that claim on appeal. 38 U.S.C.A. § 5103A(d). The Board notes that the evidence reviewed includes statements submitted by the Veteran historically, as well as medical evidence relevant to the service-connected hypothyroidism. As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. II. Facts A November 1985 rating decision granted service connection for status post thyroidectomy on the basis that such disease pre-existed service, but was aggravated therein. A July 1985 VA examination report shows that the Veteran reported that his thyroid had been removed in December 1984 because of a colloid goiter. He stated he was taking Synthroid daily (0.15 milligrams) and had no symptoms. The RO determined that the disability was 10 percent disabling upon the Veteran's entrance into service and assigned a 0 percent rating, effective May 22, 1985. See 38 C.F.R. § 3.322(a) (In cases involving aggravation by active service, the rating will reflect only the degree of disability over and above the degree of disability existing at the time of entrance into active service). The RO also denied service connection for hemorrhoids, stating that such condition had pre-existed service and was not aggravated therein. The Veteran was notified of those determinations and of his appellate rights the following month; he did not appeal either determination. On March 17, 1998, the Veteran submitted a VA Form 21-526, Veteran's Application for Compensation or Pension, stating that he was seeking compensation for chondromalacia of both knees and multiple sprains of both ankles, which he stated had occurred in September 1981. At the time of this application, the Veteran submitted VA medical records and private medical records, dated from 1987 to February 1998. A September 1990 private medical record shows that the Veteran was seen to establish care for his hypothyroid condition. The Veteran noted that he had undergone thyroid surgery in 1984 and had been on thyroid medication since then and was "doing well." The examiner noted that there were, "No other particular problems." A September 1991 letter states: To Whom It May Concern, ____[The Veteran]____________ is not medically able to return to work at this time. I expect him/her to return to work as soon as he/she is physically able. If you have any questions, please feel free to contact my office. In September 1992, the Veteran was seen for chronic leg swelling. The examiner noted that the Veteran had hypothyroidism and had undergone a thyroidectomy. He stated the Veteran was, "Doing quite fine. T7 and TSH normal. No thyromegaly." In October 1993, the examiner noted the Veteran's hypothyroidism history. He stated that the Veteran had noted some occasional blood on his stools and toilet paper, but denied any persistent bleeding. The examiner stated, "Otherwise clinically feels well. No fatigue." He noted the Veteran would follow up with this in January. June 1994 thyroid function profile showed that T-3, T-4, and FTI all had "normal results." In November 1994 and June 1995, TSH was normal. In August 1995, T-3, T-4, FTI, and TSH were all normal. In November 1995, the examiner stated that the Veteran weighed 353 pounds and was too heavy to put on the scale. He noted the Veteran had hypothyroidism and that it was "[u]nder good control." In February 1997, the Veteran was seen for follow-up of elevated liver function tests and hypothyroidism. The examiner stated the Veteran was "doing generally well. No particular complaints." There was no thyromegaly. In April 1997, T-3, T-4, FTI, and TSH were all normal. In May 1997, the Veteran was seen for follow-up of obesity. He denied any syncope, presyncope, chest pain or pressure, orthopnea, dyspnea, or palpitations. The examiner stated that there was no thyromegaly. In July 1997, T-3, T-4, FTI, and TSH were all normal. A January 1994 VA medical record shows that the Veteran had two cervical discs fused in 1985 following an industrial accident. The Veteran stated that the pain had recurred approximately five years prior. A January 1996 VA treatment record shows that the facility had received a call from the Veteran requesting a referral for possible circulatory problems. An August 1997 record shows that the Veteran was seen for hypertension screening. A February 1998 record shows VA had been informed that the Veteran had been admitted to a private hospital for severe cellulitis. A May 1998 VA examination report shows that the examiner noted the Veteran complained of chronic bilateral knee problems and sprains of both ankles. He noted there were no medical records available for review. The Veteran reported that while on active duty, he had knee strains and had twisted his ankles several times on road marches. He stated that the pain was chronic and treated with rest. The Veteran noted he was trying to lose weight, but that walking aggravated his problem and running was impossible. He stated he currently worked for the state in a sitting-type job and had not lost any work due to his knee or ankle problems. The examiner noted that the Veteran weighed 392 pounds. Following examination, the examiner entered diagnoses of early degenerative arthritis, right knee; calcaneal spurring, bilateral Achilles' tendon; and chronic strain of knees and ankles secondary to morbid obesity. In December 1998, the RO requested an advisory medical opinion from the examiner who had conducted the May 1998 examination. The author of the request noted that the claims file had not been available at the time of the examination and that it was possible the examiner did not know that the Veteran was service connected for a thyroid disorder. An opinion was solicited to determine whether the Veteran's morbid obesity was directly due to or proximately the result of the service-connected thyroidectomy. In a handwritten response to the question posed, the examiner noted that the Veteran had undergone a partial thyroidectomy and had been supplemented with Synthroid dating back to 1987. He stated that all tests had demonstrated good control. He opined that the Veteran's morbid obesity was exogenous, rather than thyroid based, as all examination and lab values reported him to be in good control of the thyroid disorder. In a January 1999 rating decision, the RO granted service connection for a right knee disability and denied service connection for a left knee disability, a bilateral ankle disability, and exogenous obesity. In addressing the claim for service connection for obesity, the RO noted that the Veteran was service connected for thyroid disease and that the VA examination had noted that the disability affecting the Veteran's ankles and knees was due to obesity. The RO construed this as an implied claim for service connection for obesity as being secondary to the service-connected thyroid disease and denied it based upon the December 1998 medical opinion. The Veteran was notified of this determination in January 1999, along with his appellate rights; he did not appeal the determination. In April 1999, the Veteran requested a re-evaluation of his service-connected right wrist disorder. In August 1999, he requested that his claim be expedited because he was unemployed due to sleep apnea. In September 1999, the RO granted a 20 percent evaluation for postoperative right wrist ganglionectomy with median nerve entrapment. In November 1999, the Veteran submitted an application to reopen the claim of service connection for hemorrhoids. In January 2000, the RO informed the Veteran that it had previously denied his claim for service connection for hemorrhoids and that he would need to submit new and material evidence to reopen the claim. It provided the Veteran with the opportunity to appeal this determination. In November 1999, the Veteran submitted a claim for his daughter to be recognized as a helpless child. On September 29, 2000, the Veteran requested a re-evaluation of his thyroid condition due to increased sluggishness, weight gain, constipation, and depression. In January 2001, the Veteran submitted private medical records to support his claim. A May 1999 record shows that the Veteran was seen with "mood disorder, secondary to general medical condition." The examiner stated the Veteran was "basically stable" and "ha[d] no complaints at this time." The Veteran was oriented times three without suicidal or homicidal ideation. Insight, intellect, and judgment were all intact. The impression was that the Veteran was "fairly stable on the current regime" and would continue taking Prozac. A March 2000 medical record shows that the examiner stated, "As far as his hypothyroidism, he is taking his medicines without any problems." A June 2000 medical record shows that the Veteran was seen for follow-up with lymphedema and hypothyroidism. The examiner stated, "Doing quite fine. He is happy because the state has apparently granted him his disability." Physical examination revealed the Veteran's legs looked "pretty good." They were swollen, but there was no evidence of cellulitis. There was "[n]o thyromegaly." In August 2000, the Veteran was seen for follow-up for hypothyroidism, thrombocytopenia, and hypertension. He denied chest pain, syncope, presyncope, or palpitations. There was no bruising or bleeding. The examiner stated that cardiac examination revealed no gallops, rubs, or murmurs. There was no thyromegaly. An October 2000 letter to the Veteran from a private physician states the following, in part: I understand that you need a letter to present to the American Legion. I understand that you would like them to know that you have problems of constipation, fatigue manifested by sluggishness, depression, and obesity. These all impinge on your health care. A March 2001 VA psychiatric evaluation report shows that the Veteran reported that his thyroid was "messed up" and that it was a "real problem." The Veteran denied all forms of mental health prior to 1997. He stated that he underwent mental health evaluation at that time, which was associated with "job stress," which resulted in his being put on Prozac. The Veteran reported that his weight had increased approximately 20 pounds and that he had been diagnosed with sleep apnea and had been put on a breathing device. The examiner stated that the Veteran's general health was "only fair" because he had chronic low back pain, sleep apnea, chronic recurring cellulitis in the lower extremities, and hypothyroidism. Following examination, the examiner entered a diagnosis of adjustment disorder with depressed mood. He assigned a Global Assessment of Functioning score of 78. The examiner stated that the Veteran had had a number of situational and environmental reserves and stresses, to which the Veteran had responded with periodic subjective depression of mood. He stated that the stresses included his current job situation, parenting a severely handicapped child, and his subjective sense of his deteriorating health. He noted that the most appropriate diagnosis was adjustment disorder, but that he was unable to identify a "mental illness" producing social or vocational impact. A March 2001 VA examination report shows that the examiner noted the Veteran's thyroid disease history. The Veteran reported he was taking Synthroid at 0.15 milligrams daily. He reported a "tremendous" weight gain. He also stated he had edema of the lower legs, which had started in 1991, and that he had been treated or hospitalized 15 times due to multiple infections in his lower extremities. The Veteran also stated he had trouble walking due to mild pain, and that walking one flight of stairs caused shortness of breath and that he had to rest due to back pain. He stated that his hands get cold quickly. He also reported constipation and depression. The examiner stated that upon physical examination, no thyroid was palpated. He stated that review of the medical records showed that the Veteran was in a "euthyroid range." The diagnoses were "[h]ypothyroid, treated, asymptomatic" and lymphatic edema of both legs. The examiner added, "His complaints of constipation, depression, and weight gain are consistent with hypothyroidism." In March 2004, additional records both private and VA, dated from 1987 to 2004, were associated with the claims file-. A March 2000 letter shows that the examiner noted that the Veteran would need "monthly visits" for the next year regarding his lymphedema, obstructive sleep apnea, gastroesophageal reflux disorder, history of thrombocytopenia, history of elevated liver function tests, hypothyroidism, and recurrent cellulitis of the legs. A March 2000 private medical record shows that the Veteran was undergoing physical therapy for low back pain, which he completed that same month. It was noted that the Veteran's pain in his back had gone from a 7.5 to 8 to a 6 to 7 on a scale from one to 10, with 10 being the worst. An April 2000 private medical record shows that the Veteran was seen for "congenital lymphedema," and hypertension. The examiner stated that as far as hypertension, the Veteran denied chest pain, syncope, presyncope, or palpitations. Cardiac examination revealed no gallops, rubs, or murmurs. The Veteran indicated he wanted to have an MRI done of his lower extremities. The examiner stated that he would follow up with hypertension after the MRI and that there was a possibility that the Veteran would need antihypertensive medicine. The Veteran stated that the "state" did not want to give him disability. He reported that his legs would get numb whenever he sat for too long and that he would have to get up and walk around and questioned his ability to work "at a desk." The examiner noted, "The doctor down south considers [the Veteran] permanently disabled[,] and I believe he is disabled from working too." An October 2000 VA medical record shows that the Veteran had been medically retired from the State of Alaska due to "bad back and bad legs." The Veteran was noted to be on Synthroid at 0.15 milligrams. Records from 2000 to 2001 show that the Veteran was seen regularly for lymphedema. In September 2001, the examiner stated that the Veteran presented with hypertension, hypothyroidism, and lymphedema. There was no thyromegaly. In October 2001, T-3, T-4, FTI, and TSH were all normal. The following day, the Veteran presented for follow up with hypothyroidism, gastroesophageal reflux disorder, lymphedema, and thrombocytopenia. The examiner stated that the Veteran was "[g]enerally doing well." The Veteran denied diarrhea, constipation, nausea, and vomiting. There was no thyromegaly. In January 2002, the Veteran presented for follow up of cellulitis of the right lower extremity and hypertension. The Veteran denied diarrhea, constipation, nausea, and vomiting. A February 2002 private medical record shows that the Veteran was seen for follow up for hypertension, gastroesophageal reflux disorder (GERD), bilateral lymphedema, and sleep apnea. He denied diarrhea and constipation. Cardiovascular examination revealed no chest pain, syncope, presyncope, or palpitations. The assessment was that each of the diagnoses was "stable." In May 2002, T-3, T-4, FTI, and TSH were all normal. In September 2002, the Veteran presented again with hypertension, GERD, hypothyroidism, and depression. The examiner stated that the Veteran was, "Doing well." The Veteran reported that his depression was "under good control," and denied any shortness of breath. Three days later, the Veteran returned for a "recheck" for sleep apnea. The examiner stated that the Veteran reported he had been using the CPAP machine most nights and that he was aware of a significant improvement in his sleep architecture, as well as daytime sleepiness. The impressions were that the Veteran had obstructive sleep apnea syndrome, which was severe with a previously-determined respiratory disturbance, morbid obesity, and esophageal reflux and GERD. He noted that once the Veteran was established that the Veteran could taper off the Prozac, as his depression had "significantly improved." In October 2002, the examiner noted that the Veteran had "[n]o thyroid problems." There was no thyromegaly. Later that month, the examiner stated that he had filled out the Veteran's disability form and that the Veteran was unable to work because he could not sit or stand. That same month, T-3, T-4, FTI, and TSH were all normal. In December 2002, the examiner noted that the Veteran had no thyromegaly. That same month, T-3, T-4, FTI, and TSH were all normal. In February 2003, the Veteran presented for follow up of left leg cellulitis, which had resolved. The examiner noted that the lymphedema was chronic and that the Veteran needed follow up on his hypertension and hypothyroidism. He denied chest pain, syncope, presyncope, or palpations. He also denied diarrhea, constipation, nausea, and vomiting. His fatigue level was reported as normal, and the examiner noted that, "[H]e really hasn't been fatigued at all." There was no thyromegaly. The examiner entered a diagnosis of hypothyroidism. In March 2003, T-3, T-4, FTI, and TSH were all normal. In June 2003, the examiner noted that the Veteran presented for chronic lymphedema and gout, as well as hypertension and hypothyroidism. He stated the Veteran was, "Generally doing well." There was no thyromegaly. III. Analysis A. Legal Criteria The assignment of effective dates of 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 increase 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); see 38 C.F.R. 3.400. An effective date for a claim for increase may be granted prior to the date of claim if it is factually ascertainable that an increase in disability had occurred within one year prior to the date of claim. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. §§ 3.400(o)(1) and (2); see Harper v. Brown, 10 Vet. App. 125, 126 (1997). Additionally, 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. Also, under 38 C.F.R. § 3.157(b)(1), once a formal claim for compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability was not compensable in degree, receipt of outpatient, hospital examination, or admission to a VA or uniformed services hospital will be accepted as receipt of an informal claim for an increased evaluation based on the date of the outpatient treatment, hospital examination, or admission to a VA or uniformed services hospital. The provisions of this paragraph apply only when such reports relate to examination or treatment of a disability for which service connection has previously been established. Id. When the evidence is from a private physician, the date of receipt of such evidence will be accepted when the evidence furnished by or on behalf of the claimant is within the competence of the physician or lay person and shows the reasonable possibility of entitlement to benefits. Id. at (b)(2). Under 38 C.F.R. § 4.119, Code 7903, a 10 percent rating is warranted when hypothyroidism is productive of fatigability, or when continuous medication is required to treat the condition. A 30 percent rating requires that the disability be manifested by fatigability, constipation, and mental sluggishness. A 60 percent rating requires that the disability must be productive of muscular weakness, mental disturbance, and weight gain. A 100 percent rating is warranted when the disability is manifested by cold intolerance, muscular weakness, cardiovascular involvement, mental disturbance (dementia, slowing of thought, depression), bradycardia (less than 60 beats per minute), and sleepiness. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran has alleged that an effective date prior to September 29, 2000 is warranted for the grant of the 100 percent evaluation for hypothyroidism. His allegations include a claim that there was clear and unmistakable error in a January 1999 rating decision. The Board will first address the claim for CUE and then address whether an earlier effective date is warranted on a basis other than CUE. B. CUE in January 1999 Rating Decision The Veteran asserts that there is CUE in the January 1999 rating decision because VA ignored medical records that he had submitted in connection with a claim he had made in 1998. The Veteran states that the medical records were not "specifically mentioned" in the January 1999 rating decision, which has caused the January 1999 rating decision to contain CUE. The Veteran, through his representative, makes the following argument, in part: Because the records end with a report dated February 3, 1998, and are accompanied by a VA Form 21-4142 signed by the veteran and dated January 14, 1998, we contend the records were furnished to the Regional Office in early 1998. This is significant, because the local rating board was considering the issue of obesity being related to service-connected hypothyroidism prior to its January 1999 decision. The medical reports include fee basis treatment by Dr. K[], and chronicle a long-term problem with severe cellulitis and lymphedema of the legs, thrombocytopenia, and leukopenia. A chronic obesity problem is noted throughout these records, including a remark on a November 15, 1995[,] report that the veteran "is too heavy to put on ETT", noting his weight of 353 pounds and the equipment could hold up to 350 pounds. There are also several notations over different time periods of the veteran having chronic leg swelling and 1+ edema of the legs bilaterally. VA medical records obviously were of record and available by the [agency of original jurisdiction] at the time of the January 1999 decision concerning the veteran's treatment and symptoms relating to hypothyroidism. The fact that these records have not been reviewed or discussed for any VA decision indicates that the [agency of original jurisdiction] ignored factual evidence pertinent to the issues at that time. Therefore the January 1999 decision contains clear and unmistakable error. The Veteran argues that because there is CUE in the January 1999 rating decision, it would allow him an effective date of March 17, 1998 (the date he filed an application for compensation), for the award of increased benefits for his hypothyroidism. In other words, it would appear that the point that the Veteran is arguing, through his representative, is not that the RO failed to consider a claim for an increased evaluation for the service-connected hypothyroidism at the time of the January 1999 rating decision, but that the RO had failed to consider evidence in relation to a claim for service connection for a disability, namely, obesity, that the Veteran alleged to be secondary to his service-connected hypothyroidism. Although not clearly articulated in the record, it would seem that the Veteran is claiming that had the RO acknowledged the link between hypothyroidism and obesity at the time of the January 1999 rating decision, he would have been awarded an increase in his disability benefits at that time, rather than later in September 2000. The law provides that an individual whose VA claim has been adjudicated by an RO has one year after the issuance of written notification in which to initiate an appeal to the Board by filing a notice of disagreement. If no appeal is filed, the decision is final, and is not subject to revision on the same factual basis. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103. Such a final decision may be reversed or amended where evidence establishes that it was a product of clear and unmistakable error. 38 U.S.C.A. § 5109A, 7105(c); 38 C.F.R. § 3.105(a) . A final and binding RO decision will be accepted as correct in the absence of clear and unmistakable error. Where the evidence establishes such an error, the prior decision will be reversed or amended and it will have the same effect as if the corrected decision had been made on the same date as the reversed or amended decision. 38 U.S.C.A. § 5109A; 38 C.F.R. § 3.105(a). Clear and unmistakable error is defined as follows: Either the correct facts, as they were known at the time, were not before the adjudicator or the statutory provisions extant at the time were incorrectly applied. It is the sort of error, which had it not been made, would have manifestly changed the outcome at the time it was made. It is an undebatable error, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed. Russell v. Principi, 3 Vet. App. 310, 313 (1992) (en banc). Thus, for the Veteran's claim to succeed, it must be shown that either the facts of law compelled a substantially different conclusion. Id. at 313. The Board has thoroughly reviewed the evidence of record and the law extant at the time of the January 1999 rating decision, and for the following reasons concludes that the RO did not commit CUE in failing to consider evidence before it in regard to a claim of service connection for obesity secondary to hypothyroidism. As the Veteran was properly notified by letter in January 1999 of the January 1999 rating decision and of his procedural and appellate rights, and as he did not file a notice of disagreement with regard to the rating decision that denied a claim of service connection for obesity secondary to service-connected thyroid disease, the January 1999 rating decision became final. 38 C.F.R. §§ 3.104(a), 20.1103. The Veteran now seeks to reverse the January 1999 rating decision on the basis of allegations of CUE. 38 C.F.R. § 3.105(a). His allegations were previously summarized. Among his assertions, he alleged that the RO "incorrectly applied the statutory or regulatory provisions extant at the time" and "ignored correct, pertinent facts that were part of the record." See Appellant's Brief before the Court, pp. 16-21. In particular, the Veteran first asserts that VA applied the wrong standard of proof when determining that the Veteran's obesity was not related to his thyroid disease. He essentially contends that there was at least a balance of positive and negative evidence of record (at one point he argues that there was a preponderance of the evidence in the Veteran's favor) regarding the merits of the obesity claim but that the RO failed to resolve the issue by giving the Veteran the benefit of the doubt. Related to this argument, the Veteran asserted that when VA returned a VA examination report to the examiner to request another opinion (because the claims file was initially unavailable), VA failed to inform the examiner of the Veteran's specific diagnosis (i.e., hypothyroidism) and failed to advise the examiner of the standard of proof (i.e., benefit of the doubt standard, or the "as likely as not" standard) for establishing linkage between obesity and the thyroid disease. He states that application of the correct standard of proof would have manifestly changed the outcome of the rating decision. Secondly, the Veteran asserts that the RO failed to consider certain pertinent medical records in the file when deciding whether the Veteran's obesity was related to his hypothyroid disability. He specifically alleges that the VA records dated from 1987 to 1998 were not considered. To the extent that the Veteran is claiming that the RO failed in its duty to properly assist him in the development of his claim by clarifying for a VA examiner the Veteran's specific diagnosis and the correct standard of proof to apply when determining whether a relationship existed between obesity and thyroid disease, such a charge is, as a matter of law, insufficient to constitute CUE. See Caffrey v. Brown, 6 Vet. App. 377, 383-84 (1994) ("an incomplete record, factually correct in all other respects, is not clearly and mistakably erroneous"). Moreover, the VA examiner was privy to the facts contained in the medical record, as shown by his reference to the Veteran's treatment with Synthroid dating back to 1987 and results of thyroid tests, and furnished an opinion supported by rationale that did not signify there was any ambiguity over the etiology of the Veteran's obesity so as to even require an assessment based on probabilities. Moreover, the Veteran's contention that the RO did not consider his VA records, by itself, is insufficient to properly plead CUE. In Gonzales v. West, 218 F.3d. 1378, 1381 (Fed. Cir. 2000), the Federal Circuit held that 38 C.F.R. § 3.303(a) does not require that a rating decision discuss each piece of evidence, only that it consider all of the evidence. The RO did in fact state that evidence on file for consideration included "Post service data" in the claims file prior to January 1998, and the RO did refer in its discussion that the Veteran was severely obese, as was consistently noted in the VA treatment records. In any case, it is not shown that specific discussion of VA treatment records would undeniably have resulted in an award of service connection for obesity as secondary to the thyroid disease at that time, because the VA examiner who provided an advisory opinion on the issue following the VA examination of May 1998 evidently had reviewed the VA treatment records and based on such review provided a conclusion supported by rationale that was unfavorable to the obesity claim. Thus, the Veteran has not presented persuasive argument that the January 1999 rating decision did not consider the evidence and that the result would be manifestly different but for that error. As such, his allegations are insufficient to constitute CUE. To the extent that the Veteran is claiming that there was error in the application of the governing law, specifically the application of the correct standard of proof (here, the benefit of the doubt), the Board finds that the January 1999 rating decision was reasonably supported by the evidence of record at that time and was consistent with the laws and regulations then in effect. At the time of the January 1999 rating decision, as is now, the law states the following: "The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant." 38 U.S.C.A. § 5107(b) (West 1991). The pertinent evidence considered by the RO in January 1999 included service treatment records, post-service data of record in the claims file prior to January 1998, a VA examination dated in May 1998, and an undated advisory medical opinion. The Veteran contends that the RO denied service connection for his obesity despite the preponderance of the evidence in his favor. As recounted in the facts section above, at the time of the January 1999 decision the evidence showed him to have had significant weight gain and to be suffering thyroid disease. His treatment and symptoms of thyroid disease were noted in the VA medical records. Also of record was the VA medical advisory opinion, in which the examiner reviewed the records in the file (as shown by citation to the Veteran's treatment regimen and thyroid test results). The conclusion of the medical examiner was that based on all the examinations and lab values that report him to be in good control of the thyroid disorder, the Veteran's morbid obesity was exogenous rather than thyroid based. In short, the record contains evidence that is both favorable and unfavorable to the Veteran, and in considering the evidence the RO evidently found the VA examiner's advisory opinion to be of greater probative weight than the evidence that the Veteran asserts was in his favor. The Veteran alleges that the preponderance of the evidence was in his favor (or at least that there was an approximate balance of positive and negative evidence), but such an argument is clearly defined as a disagreement over how the facts were weighed or evaluated. This argument does not constitute a factual or legal basis for a claim of CUE. The RO's January 1999 rating decision to deny service connection for obesity is supportable, and it cannot be said that reasonable minds could only conclude that the January 1999 determination was in error, particularly as there is a competent medical advisory opinion that concluded the Veteran's obesity was not thyroid based. See Russell v. Principi, 3 Vet. App. 310, 313 (1992) (en banc). The Board finds that there is not an undebatable error in the adjudication of the claim of service connection for obesity as secondary to service-connected thyroid disease. Based on the evidence, it cannot be found that the RO's denial of the obesity claim in the January 1999 rating decision was undebatably incorrect. The RO considered the correct facts and correctly applied the pertinent law and regulations then in effect. Any disagreement of the Veteran about how the facts were weighed or evaluated does not constitute a factual or legal basis for a claim of CUE. Considering the pleadings of CUE, for the reasons articulated, the RO did not misapply the law in its rating decision of January 1999, and the decision did not contain CUE of law or of fact. C. Earlier Effective Date on a Basis Other Than CUE The Veteran has argued in the alternative that an effective date of April 6, 2000 is warranted for the award of the 100 percent evaluation for hypothyroidism. Specifically, he states the following, through his representative: We contend that the treatment reports generated by the April 6, 2000, consultation between Drs. H[] and K[] present a viable date for entitlement to a 100 percent disability evaluation. At the veteran's next appointment with Dr. K[] on April 18, 2000, he told the veteran he was permanently disabled from working. Such a statement may be accepted as reaching the conclusion the veteran was totally disabled and eligible for a 100 percent rating. In his VA Form 9, Appeal to the Board of Veterans' Appeals, received in February 2002, the Veteran stated that his disability was "tolerable" up until the time of the current effective date. As set out above, in a claim for an increased evaluation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date. Otherwise, the date of receipt of the claim controls. 38 C.F.R. § 3.400(o)(2). Because the Board, herein above, has determined that the January 1999 rating decision did not contain CUE in the RO's failure to consider evidence before it in regard to the claim of service connection for obesity as secondary to hypothyroidism, and thus by extension he would not be entitled to an increase in disability benefits related to hypothyroidism, and because the Veteran has not specifically argued that the RO erred in January 1999 by failing to consider a claim for an increased evaluation for the service-connected hypothyroidism, it need not address whether the Veteran had filed an informal claim prior to the January 1999 rating decision. The Board has carefully reviewed the evidence in the interim between the January 1999 rating decision and the Veteran's claim for increased benefits, received on September 29, 2000, and for the following reasons finds that the preponderance of the evidence is against an effective date earlier than September 29, 2000, for the award of the 100 percent evaluation for hypothyroidism. The Veteran has not alleged that he filed either an informal claim or a formal claim for increase prior to the date of his September 2000 formal claim. Rather, his argument is that an increase in his disability was ascertainable within the one year period prior to receipt of the September 29, 2000 claim. The Board notes that the 1999 and 2000 private medical records associated with the claims file in connection with the Veteran's September 2000 claim for increase cannot be construed as informal claims for increase under 38 C.F.R. § 3.157(b)(2). Under that regulation, the date of the informal claim is not the date on the private medical record, but the date that the private medical record was received by VA. See id. This is where the difference occurs with VA medical records (where the date of the medical record is considered the date of claim). Compare 38 C.F.R. § 3.157(b)(1) to (b)(2). In this case, all the private medical records (submitted after the January 1999 rating decision) were received after the Veteran's September 29, 2000 claim for increase. While those records may be considered in determining whether it was ascertainable that an increase in the Veteran's disability occurred within the one year period prior to the date of claim (here, the period beginning September 29, 1999), they may not be considered as informal claims for increase prior to September 29, 2000. See id. The Board notes that VA medical records were associated with the claims file following the Board's September 2003 remand. However, those treatment records do not assist the Veteran in obtaining an earlier effective date for the date of claim, as they are either duplicative of that which was before the RO at the time of the January 1999 rating decision, do not show treatment for hypothyroidism, or are dated after September 29, 2000. Thus, these records do not provide a basis to grant the Veteran an earlier effective date for the award of the 100 percent evaluation for hypothyroidism. The Board has thoroughly reviewed the evidence of record, with special attention to the evidence dated between September 1999 and September 2000, and finds that the preponderance of the evidence is against a finding that the Veteran's disability had worsened to the extent approximated by criteria for the 30 percent evaluation, the 60 percent evaluation, or the 100 percent evaluation. Initially, it must be noted that while the Veteran was rated at 0 percent, it had been determined in the November 1985 rating decision that his hypothyroidism had existed prior to service and was 10 percent disabling upon his entrance into service. See 38 C.F.R. § 3.322(a). Therefore, the 10 percent evaluation had been subtracted from his evaluation, which would result in a 0 percent rating, although he met the criteria for a 10 percent evaluation. In this case, the evidence would need to show that the Veteran met an evaluation in excess of 10 percent to warrant an increased evaluation prior to September 29, 2000. In addressing the evidence dated within one year of the Veteran's claim, in March 2000, the private physician stated that, "As far as [the Veteran's] hypothyroidism, he is taking his medicines without any problems." Such record would not establish that the Veteran's disability had increased in severity, and, in fact, would indicate that the disability had not increased in severity. A March 2000 letter shows that the examiner stated that the Veteran would need monthly visits for the next year regarding multiple disabilities, which included hypothyroidism. This too does not show that the Veteran has increased symptoms of hypothyroidism; rather, it shows that he required to be seen on a monthly basis to monitor multiple disabilities (there were seven listed). The Board disagrees with the Veteran's assertion that the April 2000 medical records establish that his disability had increased to the point where he satisfied criteria for a 100 percent evaluation. In August 1999, the Veteran had attributed his inability to work to sleep apnea, which is not a service-connected disability. An October 2000 VA treatment record shows that he reported he was medically retired from the State of Alaska due to "bad back and bad legs." Neither of his statements would establish that he was either 100 percent disabled due to hypothyroidism or that he could not work due to the service-connected hypothyroidism. The evidence in the claims file shows that the Veteran has multiple disabilities that are not service connected. In the April 2000 medical record, which the Veteran has alleged shows that he meets the criteria for a 100 percent evaluation for hypothyroidism, the examiner noted that the Veteran was there to be seen for congenital lymphedema and hypertension - neither of which are service connected and neither of which have been attributed to hypothyroidism. The Veteran reported that his legs would go numb whenever he sat too long, that he would have to get up and walk around, and that he questioned his ability to work "at a desk." Nowhere in that medical record is it documented that the Veteran, or the examiner, attributed the Veteran's inability to sit, stand, or walk to his service-connected hypothyroidism. Further, the examiner did not state that the Veteran was unable to work due to hypothyroidism. In fact, hypothyroidism is not even mentioned in that medical record. While the Veteran has implied that his cellulitis, hypertension, and lymphedema are related to the service-connected hypothyroidism, there is no medical evidence in the claims file to substantiate that allegation. No medical professional has attributed any of his multiple diagnoses of various disabilities to the service-connected hypothyroidism. The Board also emphasizes that the laboratory findings throughout the claims file, dated from 1992 to 2003, all show that the Veteran's thyroid function was within normal limits. At the time of the July 1985 VA examination, he was on 0.15 milligrams of Synthroid, and whenever the dosage of Synthroid has been reported throughout the record, the dosage has remained the same. Further, none of the medical records show a positive finding of thyromegaly. In fact, whenever an examiner has mentioned thyromegaly, it was in a finding that the Veteran had none. None of the medical records show a finding - by a medical professional - that the Veteran's hypothyroidism was not under control. In fact, in the March 2001 VA examination report, the examiner diagnosed the Veteran with hypothyroid and stated that it was "asymptomatic." In short, the Board cannot find evidence dated within the one year period prior to the date of receipt of the Veteran's claim on September 29, 2000 that establishes a date that he met a higher evaluation for hypothyroidism. As has been acknowledged by the Veteran, if an increase in disability cannot be factually ascertainable within one year prior to date of claim, then the effective date is the date of claim. See 38 U.S.C.A. 5110(a). Accordingly, for the reasons articulated above, the Board concludes that the preponderance of the evidence is against an effective date prior to September 29, 2000, for the award of a 100 percent evaluation for hypothyroidism, and there is no doubt to be resolved. See Gilbert, 1 Vet. App. at 55. ORDER An effective date prior to September 29, 2000, for the grant of a 100 percent rating for hypothyroidism, status post thyroidectomy with depression, weight gain, cold intolerance, and sleepiness, is denied. The appeal to establish CUE in a January 1999 rating decision, which denied service connection for obesity as secondary to service-connected thyroid disease with thyroidectomy, is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs