Citation Nr: 1310995 Decision Date: 04/03/13 Archive Date: 04/19/13 DOCKET NO. 10-33 348 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to an effective date earlier than January 7, 2008, for the grant of service connection for advanced keratoconus, to include whether there was clear and unmistakable error (CUE) in an October 2002 rating decision in that it denied service connection for amblyopia secondary to childhood esotropia (claimed as keratoconus). 2. Entitlement to a rating in excess of 30 percent for advanced keratoconus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Ishizawar, Counsel INTRODUCTION The Veteran served on active duty from August 1989 to September 1994 and from April 1997 to September 2002. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Augusta, Maine Department of Veterans' Affairs (VA) Regional Office (RO) that, in pertinent part, granted service connection for advanced keratoconus, rated 30 percent, effective June 9, 2008. In an April 2009 rating decision, the Baltimore, Maryland RO determined that there was CUE in the March 2009 rating decision and granted an earlier effective date of January 7, 2008, for the award of service connection for advanced keratoconus. The appeal remains under the jurisdiction of the Baltimore RO. In July 2010, an informal conference was held before a Decision Review Officer (DRO) at the RO; a report is associated with the Veteran's claims file. In April 2012, the Veteran testified at a Central Office hearing before the undersigned. A transcript of that hearing is of record. At the Central Office hearing, the Veteran sought, and was granted, a 60 day abeyance period for the submission of additional evidence. 38 C.F.R. § 20.709 (2012). Additional evidence was submitted with a waiver of initial Agency of Jurisdiction (AOJ) consideration in April 2012. This evidence is accepted for inclusion in the record on appeal. See 38 C.F.R. §§ 20.800, 20.1304 (2012). As an initial matter, the Board notes that during the April 2012 Central Office hearing, the Veteran's representative argued that there was CUE in an earlier, October 2002 rating decision that denied service connection for amblyopia secondary to childhood esotropia (claimed as keratoconus). A review of the Veteran's April 2009 notice of disagreement (NOD) shows that he also raised by implication the matter of whether there was CUE in the October 2002 rating decision that denied service connection for amblyopia secondary to childhood esotropia (claimed as keratoconus). See Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004); Szemraj v. Principi, 357 F.3d 1370, 1375-76 (Fed. Cir. 2004) (VA has a duty to liberally construe claims raised by a veteran). As the July 2010 statement of case (SOC) addressed this matter, and the Veteran's August 2010 VA Form 9, substantive appeal, perfected the CUE claim (in addition to his claim for an earlier effective date), the Board has recharacterized the claim (as stated on the first page). Finally, the Board notes that it has reviewed both the Veteran's physical claims file and "Virtual VA" (VA's electronic data storage system) to ensure that the complete record is considered. At present there are no additional documents pertinent to this appeal in Virtual VA. The issue of whether an increased rating is warranted for the Veteran's advanced keratoconus is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. An October 2002 rating decision denied service connection for amblyopia secondary to childhood esotropia (claimed as keratoconus); the Veteran was notified of the denial in November 2002 and did not appeal this decision. 2. The October 2002 rating decision that denied service connection for amblyopia secondary to childhood esotropia (claimed as keratoconus) was supported by evidence then of record, and it is not shown that the RO ignored or incorrectly applied the applicable statutory and regulatory provisions existing at the time; or that, but for any such alleged error, the outcome of the decision would have been different. 3. After the October 2002 rating decision, the first communication from the Veteran evidencing an intent to reopen a claim of service connection for keratoconus was received on January 7, 2008. CONCLUSIONS OF LAW 1. The October 2002 rating decision that denied service connection for amblyopia secondary to childhood esotropia (claimed as keratoconus) is final. 38 U.S.C.A. § 7105 (West 2002); 38 U.S.C.A. §§ 20.302, 20.1103 (2012). 2. There was no CUE in the October 2002 rating decision in that it denied service connection for amblyopia secondary to childhood esotropia (claimed as keratoconus). 38 U.S.C.A. §§ 5109A, 7105 (West 2002); 38 C.F.R. § 3.105 (2012). 2. An effective date earlier than January 7, 2008, is not warranted for the award of service connection for advanced keratoconus. 38 U.S.C.A. §§ 5101, 5110, 7105 (West 2002); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 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/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Regarding the Veteran's allegation of CUE in a prior rating decision, the United States Court of Appeals for Veterans Claims (Court) has held that the VCAA does not apply to CUE cases. Livesay v. Principi, 15 Vet. App. 165 (2001). Hence, a lengthy discussion of the impact of the VCAA with regard to CUE is not necessary. Regarding the Veteran's claim for an earlier effective date, as the March 2009 and April 2009 rating decisions that are on appeal granted service connection for advanced keratoconus and assigned an effective date for that award, statutory notice had served its purpose, and its application was no longer required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). A July 2010 SOC provided notice on the "downstream" issue of an earlier effective date and readjudicated the matter after the Veteran and his representative had an opportunity to respond. 38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). Notably, an August 2008 letter also provided him with effective date criteria. The Veteran has had ample opportunity to respond/supplement the record, and has not alleged that notice in this case was less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) ("where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues"); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (discussing the rule of prejudicial error). All evidence relevant to the Veteran's claim for an earlier effective date has been secured. It is noteworthy that determinations regarding effective dates of awards are based essentially on what was shown by the record at various points in time and application of governing law to those findings. Generally, further development of the evidence is not necessary unless it is alleged that evidence constructively of record is outstanding. The Veteran has not identified any other pertinent evidence that remains outstanding. Thus, VA's duty to assist is met and the Board will address the merits of the claim. B. Legal Criteria and Analysis Clear and unmistakable error (CUE) An unappealed rating decision is final and binding based on the evidence of record at the time of such decision in the absence of CUE in the decision. Where evidence establishes CUE in a prior decision, the decision will be reversed or amended. 38 U.S.C.A. §§ 5109A, 7105(c); 38 C.F.R. § 3.105(a). The Court has held that for there to be a valid claim of CUE either the correct facts, as they were known at the time, were not before the adjudicator or the legal provisions effective at that time were improperly applied; a mere difference of opinion in the outcome of the adjudication does not provide a basis to find that VA committed error during the adjudication process. See Russell v. Principi, 3 Vet. App. 310 (1992) (en banc). The Court has stated that CUE is the type of error which is "undebatable, so that it can be said that reasonable minds could only so conclude that the original decision was fatally flawed at the time it was made." Id. 313-14. Therefore, in order for the Veteran's claim to succeed, it must be shown that either the facts or law compelled a substantially different conclusion. Id. at 313. In Cook v. Principi, 318 F.3d 1334, 1345-47 (Fed. Cir. 2002), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that a breach of a duty to assist cannot constitute CUE and that "grave procedural error" does not render a decision of VA non-final. The Federal Circuit, citing Caffrey v. Brown, 6 Vet. App. 377 (1994), also noted that a CUE claim is an attack on a prior judgment that asserts an incorrect application of law or fact, and that an incomplete record, factually correct in all other respects, is not CUE. Id. at 1346. The laws and regulations regarding service connection at the time of the October 2002 rating decision provided that service connection would be granted when there was disability due to disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131 (2002); 38 C.F.R. § 3.303 (2002). Hence, there needed to be medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. A disability could also be service connected if the evidence of record showed that a veteran had a current disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b) (2002). At the time of the October 2002 rating decision, the evidence of record consisted of the Veteran's service treatment records (STRs) and the report from a July 2002 fee-based "QTC" examination. The Veteran's STRs show that he required the use of glasses and/or contact lenses prior to his entrance into both periods of active duty service, and that he was seen on multiple occasions in service for routine optometric examinations and for complaints/follow-up treatment related to his eyes/vision. In February 1994, the Veteran underwent an eye examination in which it was noted that he had hyperopia and astigmatism in both eyes, and amblyopia in the left eye. In May 1997, he underwent an eye examination wherein compound hypermetropic astigmatism in both eyes and amblyopia in the left eye were assessed. In July 1998, the Veteran underwent an eye examination for a new prescription. During this examination, he reported having a history of amblyopia (lazy eye). In August 1998, he was noted to have high hyperopic astigmatism. In March 2001, he was assessed as having hyperopia, astigmatism, and signs of early keratoconus. In June 2001, March 2002, and in April 2002, the Veteran was examined again for his vision; keratoconus was not noted. In June 2002, prior to the Veteran's separation from his second period of active duty service, he filed a VA Form 21-526, Veteran's Application for Compensation or Pension, requesting, in pertinent part, service connection for his eyes; specifically, "early keratonus [sic]." On July 2002 QTC examination, the Veteran reported a history of "lazy eye" and noted that the vision in his left eye had never been correctable to the same level as his right. He denied a history of ocular surgery or trauma and noted that he was not currently on any ocular medications. After an examination of the eyes, esotropia and amblyopia secondary to esotropia were diagnosed. The examiner opined that the Veteran had "amblyopia in the left eye secondary to childhood esotropia which [was] not service-related." The October 2002 rating decision denied service connection for amblyopia secondary to childhood esotropia (claimed as keratoconus), essentially, finding that amblyopia secondary to childhood esotropia was considered a congenital or developmental defect which was unrelated to the Veteran's military service and not subject to service connection. He was notified of the decision in a November 2002 letter. There record does not show, and the Veteran does not argue, that he filed an NOD in response to this decision. Accordingly, the October 2002 rating decision is final and not subject to revision in the absence of CUE in the decision. 38 U.S.C.A. §§ 5109A, 7105; see Rudd v. Nicholson, 20 Vet. App. 296 (2006) (finding that only a request for revision based on CUE could result in the assignment of an effective date earlier than the date of a final decision). The Veteran and his representative argue that the October 2002 rating decision contains CUE because the evidence of record at that time included a March 2001 STR in which it was noted that he had early signs of keratoconus. They also argue that the July 2002 QTC examiner committed error by failing to diagnosis keratoconus during that examination. See April 2009 NOD and April 2012 Central Office hearing transcript. In the Veteran's August 2010 VA Form 9, substantive appeal, he also noted that he was given a diagnosis of advanced keratoconus in the left eye and keratoconus in the right eye by his private physician in 2004, and that in a January 2008 letter, his private physician indicated that due to the severity of these conditions, it was likely that they had been advancing for several years. The Veteran argued that this statement along with the diagnosis suggested that his keratoconus had its onset in service. The Board concludes that there is no CUE in the October 2002 rating decision. In denying service connection for amblyopia secondary to childhood esotropia (claimed as keratoconus) in the October 2002 rating decision, the RO considered both the Veteran's STRs and the report of the July 2002 QTC examination, and found that his only diagnosed eye disabilities at the time of his June 2002 claim were esotropia and amblyopia, which the examiner opined were not related to his service. Although the October 2002 rating decision did not discuss the March 2001 in-service notation of early signs of keratoconus, there is no evidence that the record was not before or considered by the adjudicator. In any event, the facts known at the time do not compel a substantially different conclusion. Russell, 3 Vet. App. at 313. A "disagreement as to how the facts were weighed or evaluated" cannot constitute CUE. Id. at 311. Notably, the March 2001 STR merely noted that the Veteran displayed early signs of keratoconus without providing a diagnosis of such, and subsequent STRs were silent for such a diagnosis. The July 2002 QTC examiner also did not diagnose keratoconus in either eye. Therefore, additional discussion of evidence would not have established that the Veteran had a diagnosis of keratoconus in either eye at the time of the October 2002 rating decision. Absent competent evidence of a current medical diagnosis, service connection for such disability could not have been granted at that time. See Brammer v. Derwinski, 3 Vet. App. 223 (1993). Although the Board is aware that the Veteran was later granted service connection for advanced keratoconus, that grant was based on later evidence of a diagnosis, and regarding etiology, of his advanced keratoconus (namely, a March 2009 VA examination report). In the Veteran's VA Form 9, he noted that he had submitted a statement from his current treatment provider indicating that due to the advanced nature of his keratoconus, it had likely been advancing for several years and argued that such evidence supported a finding that his keratoconus likely had its onset in service. The statement referenced by the Veteran is a January 2008 letter from his private optometrist that was received by VA in August 2008. As was explained above, a claim for CUE is adjudicated based on the facts that were before the adjudicator at the time of the rating decision being challenged. As the January 2008 letter from the Veteran's private optometrist was not of record in October 2002, it may not be considered in determining whether there was CUE in the October 2002 rating decision. Furthermore, to the extent that it has been alleged that the July 2002 QTC examiner misdiagnosed the Veteran's eye disability by failing to diagnose keratoconus, and thus he was not provided an adequate VA examination in conjunction with his June 2002 claim, the Board notes that a breach of the duty to assist cannot constitute CUE. See Cook, 138 F.3d at 1345-47. Accordingly, the Board finds that the October 2002 rating decision was entirely consistent with, and supported by, the evidence of record; was in accordance with governing law and regulations; and did not involve CUE. Importantly, no error of fact or law was shown that compels the undebatable conclusion, to which reasonable minds could not differ, that the result in the decision in question would have been manifestly different but for the error. Fugo v. Brown, 6 Vet. App. 40, 43 (1993). Consequently, revision of that decision is not warranted. Earlier effective date Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). A "claim" or "application" is 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). An informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). If a formal claim is received within one year of an informal claim, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155. In the Veteran's April 2009 NOD (as to the assignment of the currently assigned effective date for his award of service connection for advanced keratoconus), he argues that an earlier effective date is warranted because he had increasing problems with his visual acuity in service, and was even noted to have early signs of keratoconus while in service (see March 2001 STR), and continued to have problems with his visual acuity after service, including at the time of his 2002 claim for service connection. He further argues that the July 2002 QTC examiner misdiagnosed his eye condition by failing to recognize that he had keratoconus, such that it was not diagnosed until several years later by his private physicians. As was discussed in the decision above, however, the Board has found that these arguments may not form the basis for finding CUE, and the Veteran has not otherwise shown that there is CUE in the October 2002 rating decision. Therefore, the October 2002 rating decision is final and serves as a legal bar to an effective date prior to the date of that decision. Although the Veteran has expressed disagreement with the prior final determination, there is no legal authority for the Board to set aside the finality of that decision in the absence of a showing of CUE in that decision. What remains for consideration before the Board is whether following the October 2002 rating decision, and prior to January 7, 2008, there was any communication from the Veteran expressing an intent to reopen his claim and seek service connection for advanced keratoconus, or any other basis by which an earlier effective date may be established. A review of the record shows that VA treatment records from December 1999 to September 2004 were associated with the claims file after the October 2002 rating decision but before the January 7, 2008 informal claim. Under 38 C.F.R. § 3.157, a report of an examination or hospitalization which meets certain requirements may be accepted as an informal claim for benefits. However, because these treatment records were added to the record in conjunction with the Veteran's September 2004 claim of service connection for a low back disability, which does not mention his eyes or a claim for an eye related disability, and refer to treatment for disabilities other than the eye, they may not serve to establish an earlier effective date for the Veteran's award of service connection for advanced keratoconus. Id. The earliest recorded expression of intent by the Veteran to seek service connection for advanced keratoconus after the October 2002 rating decision is in a statement received by VA on January 7, 2008, in which he noted that he had been seeking continuous treatment for his eyes subsequent to his separation from service and requested that a claim be evaluated for his eyes. The January 7, 2008 statement was considered an informal claim for service connection. As it was followed by the Veteran's formal claim to reopen a claim of service connection for advanced keratoconus received on June 9, 2008, it was properly accepted as the date of claim. See 38 C.F.R. § 3.155. Significantly, the Veteran does not allege that he filed an claim to reopen, informal or otherwise, prior to January 7, 2008. See April 2012 Central Office hearing transcript. Under governing law, generally (with exceptions none of which are here applicable) the effective date of an award based on a reopened claim following a prior final denial of the claim cannot be earlier than the date of receipt of the claim to reopen. There is no statutory authority that would allow VA to grant the Veteran an effective date earlier than January 7, 2008, for the award of service connection for advanced keratoconus under the circumstances in this case, or for the reasons he has alleged. Accordingly, the appeal seeking an effective date prior to January 7, 2008, for the grant of service connection for advanced keratoconus must be denied. ORDER The appeal to establish CUE in an October 2002 rating decision that denied service connection for amblyopia secondary to childhood esotropia (claimed as keratoconus) is denied. An effective date earlier than January 7, 2008, for the award of service connection for advanced keratoconus is denied. REMAND Under 38 U.S.C.A. § 7105(a), an appeal to the Board must be initiated by a NOD and completed by a substantive appeal after a SOC is furnished to the appellant. In essence, the following sequence is required: There must be a decision by the RO, the claimant must express timely disagreement with the decision (by filing an NOD within one year of the date of mailing of notice of the RO decision), VA must respond by explaining the basis of the decision to the claimant (in the form of a SOC), and finally, the appellant, after receiving adequate notice of the basis of the decision, must complete the process by stating his argument in a timely-filed substantive appeal. See 38 C.F.R. §§ 20.200, 20.201, and 20.202. Here, a March 2009 rating decision granted service connection for advanced keratoconus and assigned a 30 percent rating for that disability. In April 2009, the Veteran submitted a timely "Notice of Disagreement" in which he questioned whether this disability "justifie[d] a rating of only 30%" and requested reconsideration of "the decision to grant only 30%." The RO has not issued an SOC addressing the matter of the rating assigned for the Veteran's advanced keratoconus. Under Manlincon v. West, 12 Vet. App. 238, 240 (1999), when this occurs, the Board must remand the case and instruct the RO that the issue remains pending in appellate status (see 38 C.F.R. § 3.160(c)) and requires further action. See 38 U.S.C.A. § 7105; 38 C.F.R. § 19.26. As recent communications from the Veteran have not mentioned his increased rating for advanced keratoconus claim, clarification of whether he still wishes to pursue this claim is indicated. The Veteran is advised that his claim of entitlement to a rating in excess of 30 percent for advanced keratoconus is not before the Board at this time, and will be before the Board only if he timely files a substantive appeal after an SOC is issued. Accordingly, the case is REMANDED for the following action: Clarification from the Veteran should be sought as to whether he is still pursuing a claim for an increased rating for his advanced keratoconus. If his response is in the affirmative, he should be issued an appropriate SOC in the matter. The Veteran must be advised of the time limit for filing a substantive appeal, and that, in order for the Board to have jurisdiction in this matter, he must submit a timely substantive appeal. If he timely perfects an appeal in the matter, it should be returned to the Board for further appellate consideration, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ S. HENEKS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs