Citation Nr: 1324180 Decision Date: 07/30/13 Archive Date: 08/07/13 DOCKET NO. 11-06 061 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to an effective date prior to September 26, 2007, for service connection for Meniere's syndrome. 2. Whether there was clear and unmistakable error (CUE) in a June 1972 rating decision by the Baltimore, Maryland Regional Office that denied service connection for a nervous stomach (now claimed as Meniere's syndrome. 3. Entitlement to service connection for hepatitis. 4. Entitlement to a rating in excess of 60 percent for Meniere's syndrome. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran had active duty service from November 1963 to March 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. The Veteran's claim for service connection for hepatitis was denied in January 2008. Following the August 2009 rating decision that granted service connection for Meniere's syndrome, the Veteran's claim for an effective date prior to September 26, 2009 was denied in an August 2010 decision. Finally, in February 2012, the RO denied the Veteran's claim for an increased rating for Meniere's syndrome. Although the February 2011 statement of the case only lists the issue of whether there was CUE in the June 1972 rating decision, it is evident that the RO addressed both the CUE issue and the issue of entitlement to an earlier effective date; the Veteran has perfected an appeal of both issues. The Veteran testified at a June 2012 Central Office hearing, and a transcript of that hearing has been associated with the claims file. The Board has reviewed Virtual VA for any documents relevant to the Veteran's claims in its adjudication of these matters. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of entitlement to service connection for hepatitis, and entitlement to a rating in excess of 60 percent for Meniere's syndrome, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's March 1972 claim of entitlement to service connection for a nervous stomach was denied in a June 1972 rating decision. Following the receipt of additional lay evidence, the RO issued a "confirmed" rating decision in July 1972, confirming the prior denial. 2. The Veteran did not file a notice of disagreement concerning the June 1972 rating decision or the July 1972 confirmed rating decision. 3. The Veteran's next communication that could be construed as a claim for benefits is his September 26, 2007 claim for service connection for Meniere's syndrome. 4. At the time of the June 1972 rating decision that denied service connection for a nervous stomach, all of the relevant evidence was before the RO, and the RO correctly applied the applicable law and regulations. CONCLUSIONS OF LAW 1. The criteria for establishing an effective date prior to September 26, 2007, for the grant of service connection for Meniere's syndrome, have not been met. 38 U.S.C.A. §§ 5101, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, .104, 3.155, 3.400, 20.302, 20.1103 (2012). 2. The June 1972 rating decision denying service connection for a nervous stomach does not contain clear and unmistakable error. 38 U.S.C.A. §§ 5109A, 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.105 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify & Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The Veteran's earlier effective date claims arise from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under Veterans Claims Assistance Act of 2000 (VCAA). Moreover, in the current claim for an earlier effective date, the law is dispositive, and where the law determines the outcome further development is not indicated. See Livesay v. Principi, 15 Vet. App. 165 (2001); Sabonis v. Brown, 6 Vet. App. 426 (1994). The Board takes this opportunity, however, to note that a transcript of the Veteran's June 2012 hearing is of record. The Board hearing focused on the elements necessary to substantiate his claims and the Veteran, through his testimony and his representative's statements, demonstrated that he had actual knowledge of the elements necessary to substantiate the claim for benefits. As such, the Board finds that, consistent with Bryant v. Shinseki, 23 Vet. App. 488 (2010), the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) (2012). Earlier Effective Date The Veteran asserts that he should be granted an effective date of March 30, 1972 for service connection for Meniere's syndrome. Unless specifically provided otherwise by statute, the effective date of an award for compensation benefits based on (1) an original claim, (2) a claim reopened after final adjudication, or (3) a claim for increase, is the date VA received the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400; Lalonde v. West, 12 Vet. App. 377, 382 (1999) (holding that the effective date of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection, but rather, on the date the application was filed with VA). The Veteran first submitted a claim for service connection for a "nervous stomach" in March 1972. The RO denied his claim in June 1972. Later in June 1972, the Veteran submitted lay statements in support of his claim. Following consideration of that evidence, the RO then issued a confirmed rating decision in July 1972, again denying service connection for a nervous stomach. The Veteran did not file a notice of disagreement concerning the July 1972 confirmed rating decision, and the decision became final and not subject to revision on the same factual basis. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The Board has reviewed the claims file for any document, submitted after the July 1972 confirmed rating decision, but before his September 26, 2007 claim, that could be considered a claim for service connection. Lalonde, 12 Vet. App. at 381. A "claim" is defined as "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). Any communication or action that (1) indicates "an intent to apply for one or more [VA] benefits" and (2) "identif[ies] the benefit sought" may be considered an informal claim. 38 C.F.R. § 3.155(a). The Board has found no communication from the Veteran to VA that could be construed as a claim for benefits prior to the formal claim he submitted on September 26, 2007. Under the controlling law and regulations, the award of compensation based on the reopened claim may be no earlier than VA's receipt of his September 2007 claim. 38 C.F.R. § 3.400. Thus, as a matter of law, the appeal seeking an effective date prior to September 26, 2007 for the grant of service connection for Meniere's syndrome must be denied. Sabonis, 6 Vet. App. at 430. Clear and Unmistakable Evidence The Veteran also asserts that VA committed clear and unmistakable error (CUE) in its June 1972 denial of his claim for service connection for a nervous stomach. It is contended that the law was not properly followed, and that there should have been additional development. VA's duties to notify and assist imposed by Veterans Claims Assistance Act of 2000 are not applicable where CUE is claimed in RO decisions. See Parker v. Principi, 15 Vet. App. 407 (2002). A claim based on CUE is fundamentally different from any other kind of action in the VA adjudicative process. A litigant alleging CUE is not pursuing a claim for benefits, but rather is collaterally attacking a final decision. Livesay, 15 Vet. App. at 178-79. Moreover, that litigant has the burden of establishing such error on the basis of the evidence then of record. See id. As noted, the Veteran's claim for service connection for a nervous stomach was denied in a June 1972 rating decision, and again in a July 1972 confirmed rating decision. A decision of a duly constituted rating agency or other agency of original jurisdiction will be final and binding on all VA field offices as to conclusions based on evidence on file at the time VA issues written notification of such. 38 C.F.R. § 3.104(a) (2012). Previous determinations, which are final and binding, will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). A final and binding agency decision shall not be subject to revision on the same factual basis except by duly constituted appellate authorities or except as provided in 38 C.F.R. § 3.105. 38 C.F.R. § 3.104(a). CUE is a very specific and rare kind of "error." It is a kind of error, of fact or of law, that when called to the attention of later reviewers compels a conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be, ipso facto, clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). The Court has propounded a three-pronged test to determine whether CUE was present in a prior determination; each of the following must be present: (1) either (a) the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than simple disagreement as to how the facts were weighed or evaluated) or (b) 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 CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). The mere misinterpretation of facts does not constitute CUE. See Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). The error must be one that would have manifestly changed the outcome at the time that it was made and must be based on the record and the law that existed at the time of the prior adjudication. Baldwin v. West, 13 Vet. App. 1 (1999). VA is considered to have constructive notice of medical records in VA's possession. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Any claim of CUE must be pled with specificity. See Andre v. West, 14 Vet. App. 7, 10 (2000) (per curium); aff'd sub nom., Andre v. Principi, 201 F.3d 1354 (Fed. Cir. 2002). This specific allegation must assert more than mere disagreement with how the facts of the case were weighed or evaluated. In other words, to present a valid claim of CUE the claimant cannot simply request that the Board reweigh or reevaluate the evidence. See Crippen v. Brown, 9 Vet. App. 412 (1996). By contrast, broad-brush allegations of failure to follow the regulations or failure to give due process, or any other general, non-specific claim of error cannot meet the specificity required to render a claim of CUE meritorious. See Fugo, 6 Vet. App. at 44. Furthermore, any breach by VA of its duty to assist cannot form a basis for a claim of CUE because such a breach creates only an incomplete record rather than an incorrect one. See Tetro v. Gober, 14 Vet. App. 100, 109 (2000). The Veteran asserts that VA failed to provide the law governing the presumption of soundness in its original adjudication of his claim. See 38 C.F.R. § 3.304(b) (1972) (providing that "[t]he veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto). In this regard, he rightly points out that his November 1963 enlistment examination noted no disorders that could be related to motion sickness, vertigo, or Meniere's syndrome. He claims that had the presumption of soundness been applied, he would have been granted service connection for a disorder that he, at that time, claimed as a "nervous stomach." The Veteran correctly claims that there is no overt evidence in the June 1972 rating decision that the RO considered the presumption of soundness at that time, and for purposes of this decision, the Board will assume that the RO did not apply the presumption of soundness to the claim. Despite that assumption, the Veteran's CUE claim cannot be granted, as the RO determined in denying the claim that the Veteran did not have a current disability. Without a current disability, service connection could not have been granted. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (stating that service connection requires that a current disability be present). In the June 1972 decision, the RO cited a February 1966 medical board finding that the Veteran had a diagnosis of chronic motion sickness, and that the disorder preexisted service and was not aggravated by service. The RO also cited an April 1972 VA examination, which indicated that gastrointestinal examination and examination of the cranial nerves was normal, and that there was no ear pathology to which complaints of vertigo, nausea, vomiting, or dizziness could be traced. The RO concluded with the following: Veteran's condition during service was not a ratable one nor was there any injury which could have considerably aggravated the physiological abnormality which the veteran has. Constitutional or developmental abnormality, not a disability under the law--CHRONIC MOTION SICKNESS, SEA-no abnormal findings noted on cited VA examination. See June 1972 Rating Decision (emphasis added). The Board finds that the RO's 1972 adjudication relied on a finding that the Veteran did not have a current disability. Having found that the Veteran did not have a current disability, service connection could not have been granted regardless of the application of the presumption of soundness rule. Holton, 557 F.3d at 1366; see also 38 C.F.R. § 3.303(a) (1972) (providing that "[s]ervice connection . . . basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service"). The Board acknowledges that the Veteran has subsequently been diagnosed with Meniere's syndrome, and that competent medical evidence has associated that disorder with his military service. As has been discussed in this decision, the Veteran was ultimately granted service connection for that disorder, effective in September 2007. That fact does not alter the Board's consideration of the matter. In August 2009, when the Veteran was ultimately granted service connection (effective in September 2007), he had a diagnosis of Meniere's syndrome; thus, he had a present disability. The mere fact that as of September 2007 doctors have determined that such a disability existed since service does not alter the fact that the evidence before the RO at the time of the June 1972 rating decision failed to indicate as much. It has been contended that a social and industrial survey was not conducted and that additional examinations were indicated in 1972. The failure to develop a case cannot, under the law be CUE. As such, these contentions do not provide a basis to allow the claim. Testing that was done failed to reveal pertinent disability, and studies that were done were not taken to have required extra studies. Ears and cranial nerves were all determined to be normal. Based on the foregoing, the Board finds that there was not clear and unmistakable error in the June 1972 rating decision. 38 C.F.R. § 3.105(a). Even if the RO misapplied the law regarding the presumption of soundness, that error is not of the sort which, had it not been made, would have manifestly changed the outcome of the claim at that time. Damrel, 6 Vet. App. at 245. ORDER Entitlement to an effective date prior to September 26, 2007, for service connection for Meniere's syndrome, is denied. The claim of clear and unmistakable error in the June 1972 rating decision is denied. REMAND The Veteran's claim for service connection for hepatitis was denied in January 2008. He filed a timely notice of disagreement with that decision (NOD) in February 2008. Similarly, following the February 2012 denial of his claim for an increased rating for Meniere's syndrome, the Veteran filed a timely, April 2012 NOD. The RO failed to issue a statement of the case (SOC) concerning either of those issues. When a Veteran has filed an NOD and there is no SOC on file for the issues identified in the NOD, the Board must remand, not refer, the issues to the RO for issuance of an SOC. See Manlincon v. West, 12 Vet. App 238, 240 (1999). As no SOC has been issued, an appeal of these issues is not ready to be perfected. An SOC must be issued on remand. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) Undertake all appropriate steps to issue the Veteran and his representative an SOC addressing the issues of entitlement to service connection for hepatitis and entitlement to a rating in excess of 60 percent for Meniere's syndrome. To complete the appeal a timely substantive appeal must be filed, otherwise, the RO will close the case without an appeal being filed. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal 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). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs