Citation Nr: 1316562 Decision Date: 05/21/13 Archive Date: 05/29/13 DOCKET NO. 09-16 961 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an effective date earlier than February 25, 2008, for the grant of service connection for hypertension. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Tiffany Berry, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1985 to June 2000. This appeal to the Board of Veterans' Appeals (Board) is from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. FINDINGS OF FACT 1. The Veteran submitted his first application for service connection for hypertension in November 2004. 2. The Veteran's November 2004 claim was denied in a December 2005 rating action. 3. The December 2005 rating decision denying service connection for hypertension contained clear and unmistakable error since the Veteran's service treatment records showed the Veteran was initially diagnosed to have hypertension during his military service. CONCLUSION OF LAW The criteria for an effective date of November 22, 2004, and no earlier, for the grant of service connection for hypertension, have been met. 38 U.S.C.A. §§ 5101, 5110, 7104 (West 2002); 38 C.F.R. §§ 3.1(p), 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION In November 2004, the Veteran filed his initial claim of entitlement to service connection for hypertension. This claim was denied in a December 2005 rating decision, which he did not appeal. Thereafter, in February 2008, the Veteran filed a petition to reopen the previously denied claim. In March 2009, the RO granted the Veteran's claim for hypertension, effective from February 25, 2008, the date of receipt of his petition to reopen. The Veteran argues that his effective date should be the date he initially filed for service connection, November 22, 2004, since his service treatment records show he was prescribed medications for hypertension while in the service. The basic facts are not in dispute. As the RO noted, the Veteran's initial application for service connection was filed with VA on November 22, 2004 and his claim to reopen was received on February 25, 2008. Indeed, the Veteran does not contend otherwise. Section 5110(a), title 38, United States Code, provides that "[u]nless specifically provided otherwise in this chapter, the effective date of an award based on an original claim . . . of compensation . . . shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application thereof." The implementing regulation, 38 C.F.R. § 3.400, similarly states that the effective date of service connection "will be the date of receipt of the claim or the date entitlement arose, whichever is the later." An effective date for a reopened claim of entitlement to service connection can be no earlier than the date the request to reopen the claim was filed. See 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400(q)(1)(ii) (2012). There is no provision in either the statute or the regulations that allows for an earlier effective date based on a reopened claim unless a clear and unmistakable error was committed in a prior decision, or unless the new and material evidence resulted from receipt of additional relevant military records. See 38 U.S.C.A. § 5110(i) (West 2002); 38 C.F.R. §§ 3.105, 3.156 (c)(2012). It is undisputed that the Veteran failed to initiate an appeal of the December 2005 rating decision, which denied his initial hypertension service connection claim. Moreover, there is no statement of record that can be construed as a notice of disagreement with the December 2005 rating, dated within one year of that decision. 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302, 20.1103 (2012). Likewise, as there is no medical evidence of record submitted by the Veteran within one year of the issuance of this December 2005 rating decision, 38 C.F.R. § 3.156(b) is not for application. 38 C.F.R. § 3.156(b) (2012). Similarly, there are no service treatment records that have been associated with the Veteran's claim since the issuance of this rating decision; therefore, 38 C.F.R. § 3.156(c) is not for application. Accordingly, the rating decision issued in December 2005 is final, and the effective date of the grant of service connection cannot, by regulation, be earlier than the date of the Veteran's new claim for the benefit filed after the final disallowance of his earlier claim, absent clear and unmistakable error in the December 2005 rating. Clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the results would have been manifestly different but for the error. See Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir.) (expressly holding that in order to prove the existence of clear and unmistakable error, a claimant must show that an error occurred that was outcome-determinative, that is, an error that would manifestly have changed the outcome of the prior decision); Hines v. Principi, 18 Vet. App. 227, 235 (2004). In Russell v. Principi, 3 Vet. App. 310 (1992), the Court set forth a three-pronged test for determining when there is clear and unmistakable error present in a prior rating decision. These are (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was clear and unmistakable error must be based on the record and law that existed at the time of the prior adjudication in question. Russell v. Principi, 3 Vet. App. at 313-14. Only if this threshold requirement is met does the Board have any obligation to address the merits of the CUE claim. See Phillips v. Brown, 10 Vet. App. 25 (1997) (distinguishing denial of CUE due to pleading deficiency and denial of CUE on merits); Luallen v. Brown, 8 Vet. App. 92 (1995). The Board finds that the argument advanced by the Veteran alleges clear and unmistakable error. See Simmons v. Principi, 17 Vet. App. 104 (2003). Specifically, he states that his service treatment records clearly show he was prescribed Maxzide for hypertension. Indeed, a May 2000 service treatment record supports this assertion. Moreover, the March 2009 rating decision that ultimately granted service connection for hypertension, in part, based this favorable decision on the Veteran's in-service treatment for relevant symptoms of hypertension, and prescribed medications for these symptoms, which were then diagnosed as hypertension. Since all these service treatment records were before the RO at the time of the December 2005 decision, the Board concludes that the RO committed CUE in failing to grant service connection for this claim in the December 2005 rating decision. The Veteran's claim for an earlier effective date is granted and an effective date of November 22, 2004, should be assigned for the grant of service connection for hypertension. ORDER Entitlement to an effective date of November 22, 2004 for the award of service connection for hypertension is granted. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs