Citation Nr: 1511220 Decision Date: 03/17/15 Archive Date: 03/27/15 DOCKET NO. 13-02 226 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas THE ISSUES 1. Entitlement to an effective date earlier than March 31, 2011 for the grant of service connection for hypertension, to include whether rating decisions in April 1987, January 1996, March 1999, and July 1999 were founded on clear and unmistakable error (CUE). 2. Entitlement to an effective date earlier than March 31, 2011 for the grant of service connection for left ventricular hypertrophy. REPRESENTATION Appellant (the Veteran) is represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The Veteran had active duty service from September 1982 to July 1986. This appeal comes before the Board of Veterans' Appeals (Board) from a December 2011 rating decision of the RO in Wichita, Kansas. In May 2013, the Veteran presented testimony at a Board hearing, chaired via videoconference by the undersigned Veterans Law Judge, and accepted such hearing in lieu of an in-person hearing before a Member of the Board. See 38 C.F.R. § 20.700(e) (2014). A transcript of the hearing is of record. Although not discussed in the RO decision on appeal, the question of whether prior RO decisions which denied service connection for hypertension were founded on CUE was addressed by the RO in the March 2013 supplemental statement of the case. Therefore, that question is "subject to decision by the Secretary," and the Board has appellate jurisdiction over the theory of CUE. Godfrey v. Brown, 7 Vet. App. 398, 410 (1995). The Veteran submitted additional medical evidence after the most recent supplemental statement of the case, and he included a waiver of his right to have that evidence considered by the RO. In adjudicating this appeal, the Board has not only reviewed the physical claims file, but has also reviewed the electronic file on the Virtual VA and VBMS systems to ensure a total review of the evidence. FINDINGS OF FACT 1. The final RO rating decisions which denied service connection for hypertension in April 1987, January 1996, March 1999, and July 1999, did not contain undebatable error of law or fact that would have manifestly changed the outcome of any of those decisions. 2. A December 2011 rating decision reopened and the service connection claim for hypertension; the earliest date of a pending claim is March 31, 2011; the date entitlement arose is earlier than the date of claim. 3. A December 2011 rating decision granted service connection for left ventricular hypertrophy; the earliest date of a pending claim of entitlement is March 31, 2011; the date entitlement arose is earlier than the date of claim. CONCLUSIONS OF LAW 1. The criteria for revision of the April 1987, January 1996, March 1999, and July 1999 final RO rating decisions on the basis of CUE are not met. 38 U.S.C.A. § 5109A (West 2002); 38 C.F.R. § 3.105(a) (2014). 2. The criteria for assignment of an effective date earlier than March 31, 2011 for the grant of service connection for hypertension are not met. 38 U.S.C.A. §§ 5101, 5103, 5103A, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.114, 3.350, 3.151, 3.355, 3.400 (2014). 3. The criteria for assignment of an effective date earlier than March 31, 2011 for the grant of service connection for left ventricular hypertrophy are not met. 38 U.S.C.A. §§ 5101, 5103, 5103A, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.114, 3.350, 3.151, 3.355, 3.400 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran is seeking earlier effective dates for the grant of service connection for hypertension and left ventricular hypertrophy. He asserts that the effective date for hypertension should reflect the fact that he has been actively seeking service connection since shortly after he left the service in 1986. In the alternative, he asserts that prior RO denials of service connection for hypertension in April 1987, January 1996, March 1999, and July 1999 were founded on CUE. Regarding left ventricular hypertrophy, the Veteran asserts that the effective date for left ventricular hypertrophy should be in 2002, when the problem began. The law regarding effective dates provides that, unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, 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). This statutory provision is implemented by a regulation which provides that the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 C.F.R. § 3.400. For claims specifically reopened on the basis of new and material evidence after a final disallowance under 38 C.F.R. § 3.156(a), the effective date is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2). As noted above, the Veteran has pursued a claim of entitlement to service connection for hypertension since his initial post-service application for compensation in July 1986. The claim was previously denied on multiple occasions, the most recent of which was in July 1999. The Veteran filed his initial claim for VA compensation in July 1986, noting among other things, hypertension. That claim was denied in an April 1987 rating decision on the basis that, although the Veteran's blood pressure was elevated at service separation, and hypertension was noted on the examination form, when examined by VA in February 1987 to evaluate his service connection claim, the Veteran's blood pressure was normal, and hypertension was not diagnosed; therefore the RO concluded that there was no current disability. The Veteran did not appeal the April 1987 rating decision and did not submit new and material evidence within the appeal period. The next evidence from the Veteran regarding any issue was received in August 1995, more than one year after he was notified of the denial of his prior claim. Therefore, the April 1987 decision became final. The evidence received from the Veteran in August 1995 consisted of a VA Form 21-4138 on which the Veteran claimed entitlement to service connection for hypertension. That claim was denied in a January 1996 rating decision on the basis that new and material evidence to reopen the claim had not been received. Although notified of his right to appeal, and provided a VA Form 4107 on which to appeal, the Veteran did not appeal the August 1995 rating decision, and he did not submit new and material evidence within the appeal period following his notification of the decision. The next evidence from the Veteran regarding any issue was received in January 1999, more than one year after he was notified of the denial of his claim. Therefore, the January 1996 decision became final. The January 1999 evidence included a request to reopen service connection for hypertension and included a VA Form 21-4142 (authorization for release of information) regarding private treatment records. The RO apparently reopened the claim (no explicit finding) and denied it in a March 1999 rating decision, finding that the private records, while establishing a diagnosis of hypertension, only reflected the Veteran's treatment since 1997, and therefore did not establish onset of chronic hypertension within one year of service separation, and did not otherwise establish a nexus between the current disability and service. In April 1999, the RO received treatment records from another private provider, which reflected treatment of the Veteran for various conditions from 1986 to 1997. After reviewing the records, the RO again appears to have reopened the claim, but denied service connection on the basis that the claim was not well grounded (see July 1999 rating decision). Although notified of his right to appeal the March 1999 and July 1999 decision, and provided a VA Form 4107 on which to appeal each decision, the Veteran did not appeal the March 1999 decision or the July 1999 decision, and he did not submit new and material evidence within the appeal period following either decision. The next evidence from the Veteran regarding any issue was received on March 31, 2011, more than one year after he was notified of the denial of his prior claim. Therefore, the March 1999 and July 1999 decisions became final. The evidence consisted of a claim of entitlement to service connection for hypertension and left ventricular hypertrophy. This is the first claim to mention the issue of service connection for left ventricular hypertrophy. In developing the March 2011 claim, the RO obtained a VA examination which provided the necessary nexus opinion for hypertension and left ventricular hypertrophy. A December 2011 rating decision reopened the hypertension claim on the basis of new and material received under 38 C.F.R. § 3.156(a) on the basis of newly received medical evidence; the claim was not reopened on the basis of newly received service department records. Both claims of service connection - hypertension and left ventricular hypertrophy - were granted with the effective date of March 31, 2011, the date of claim. The Board acknowledges that the Veteran's disabilities did not begin on the date the claims were filed, and that he pursued the hypertension claim for many years. As set out above, the effective date is based on two factors - the date entitlement arose or the date of claim, whichever is later. All necessary elements of service connection must be substantiated in the evidence for entitlement to arise. A pending (non-final) claim is also a necessary element of the establishment of an effective date for service connection. Here, there was no prior claim of entitlement to service connection for left ventricular hypertrophy, and all prior claims of entitlement to service connection for hypertension were final. The Board finds that VA treatment records and/or examination reports, to the extent that they establish an earlier onset of either disability, cannot serve as a claim (formal or informal) for service connection. The United States Court of Appeals for Veterans Claims (Veterans Court) in Criswell v. Nicholson, 20 Vet. App. 501 (2006) in pertinent part held that the mere existence of medical records generally cannot be construed as an informal claim; rather, there must be some intent by the claimant to apply for a benefit. See also Brannon v. West, 12 Vet. App. 32, 35 (1998); 38 C.F.R. § 3.155(a). It is well settled that an intent to apply for benefits is an essential element of any claim, whether formal or informal, and, further, the intent must be communicated in writing. See Criswell, citing MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations require a claimant to have an intent to file a claim for VA benefits); also citing Rodriguez v. West, 189 F.3d 1351, 1353 (Fed.Cir.1999) (noting that even an informal claim for benefits must be in writing); also citing Brannon, 12 Vet. App. at 35. Once a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, receipt of a report of VA examination will be accepted as an informal claim for increased benefits or an informal claim to reopen. The date of examination will be accepted as the date of receipt of the claim. See 38 C.F.R. § 3.157(b). In this case, there was no prior claim for compensation that was disallowed for the reason that the claimed disabilities were not compensable in degree, i.e., a disability existed, was service-connected, but was not of sufficient severity to warrant a compensable rating. There was no prior claim of entitlement to service connection for left ventricular hypertrophy, and prior claims of entitlement to service connection for hypertension were denied based on the lack of at least one of the necessary elements of service connection. In summation of the Board's findings, prior to March 31, 2011, there was no pending claim for service connection for hypertension or left ventricular hypertrophy. All prior claims were final. VA treatment records do not serve as a formal or informal claim for service connection. As such, an effective date prior to the date of receipt of the March 31, 2011 claim for service connection is legally precluded. The Veteran had recourse at the time of the prior decisions deny service connection for hypertension, which was to appeal them. He does not contend that he appealed any prior decision. An attempt to now assign an effective date based on any prior final decision is without merit and must be dismissed as a freestanding claim for an earlier effective date. Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005); Rudd v. Nicholson, 20 Vet. App. 296 (Fed. Cir. 2006). The Veteran did not file a claim of entitlement to service connection for left ventricular hypertrophy prior to March 31, 2011. He does not contend that he filed any prior claim. The Veteran testified that service connection should be effective as of the date the disability began. However, this assertion is not grounded in VA law. The controlling statute and regulation provide that the effective date for a grant of service connection on an original claim or a reopened after a final disallowance under 38 C.F.R. § 3.156(a) is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. §§ 3.400(b)(2)(i), 3.400 (q)(2). Here, the date of claim, March 31, 2011, is the later of the two dates, and is the appropriate effective date as to both issues. As a matter of law, the appeal seeking an effective date prior to March 31, 2011 for the grant of service connection for hypertension and left ventricular hypertrophy must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). While the Board acknowledges the Veteran's honorable service and the disabilities he incurred as a result of that service, the Board must apply "the law as it exists, and cannot 'extend...benefits out of sympathy for a particular [claimant].'" See Owings v. Brown, 8 Vet. App. 17, 23 (1995), quoting Kelly v. Derwinski, 3 Vet. App. 171, 172 (1992). The Board has no authority to grant the benefit sought on an equitable basis. See 38 U.S.C.A. §§ 503, 7104 (West 2002); Harvey v. Brown, 6 Vet. App. 416, 425 (1994); Smith (Edward F.) v. Derwinski, 2 Vet. App. 429, 432-33 (1992) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990) ('[N]o equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress'). Regarding the allegation of CUE in April 1987, January 1996, March 1999, and July 1999 RO rating decision, VA law provides that RO decisions that are final and binding will be accepted as correct in the absence of CUE; however, if the evidence establishes CUE in a prior final decision, such decision will be reversed or amended. A finding of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. § 3.105(a). In determining whether a prior determination involves CUE, the Veterans Court has established a three-prong test. The three prongs are: (1) either the correct facts, as they were known at the time of the decision, were not before the adjudicator (i.e., there must be more than simple disagreement on how the facts were weighed or evaluated), or the statutory/regulatory provisions extant at that time were not correctly applied; (2) the error must be "undebatable" and of the sort which, if it had 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 adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994), citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). CUE is a very specific and rare kind of error. Even when 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), citing Russell, 3 Vet. App. at 313-14. There is a presumption of validity that attaches to a final decision, and when such a decision is collaterally attacked, the presumption becomes even stronger. Fugo, 6 Vet. App. at 43-44. Therefore, a claimant who seeks to obtain retroactive benefits based on CUE has a much heavier burden than that placed on a claimant who seeks to establish prospective entitlement to VA benefits. Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). According to the Veteran's hearing testimony, one alleged basis for CUE was the RO's finding in April 1987 of no current disability of hypertension, despite a high blood pressure reading of 138/100 and notation of hypertension on the examination at service separation. However, this was acknowledged by the RO, who noted that the service medical records were negative for hypertension, "except for separation examination which showed blood pressure reading of 138/100." Moreover, when examined by VA in February 1987, the Veteran's blood pressure was normal at 120/80, and no diagnosis of hypertension was rendered by that examiner. Therefore, while there was evidence in favor of the claim, there was also evidence against the claim, i.e., evidence against a finding of a current disability of hypertension. The Veteran's argument amounts to a dispute as to how the facts were weighed by the RO. This is not CUE. The Veteran also alleges that post-service private treatment records were not obtained until 1999, and that these records demonstrate that he had hypertension within one year after service separation. However, while the records show some high blood pressure readings shortly after service, they do not reflect an actual diagnosis of hypertension until 1997, almost a decade after service separation and the notation of hypertension on the service separation examination. The Veteran has acknowledged that he was not taking hypertensive medications in the first few years after service. Again, there is evidence on both sides of the issue. This is a dispute with how the RO weighed the facts before it in March 1999 and July 1999 and is not CUE. The assertion that there was an arguable case in favor of service connection at the time of a prior rating decision does not establish CUE. Simply to allege CUE on the basis that previous adjudications improperly weighed and evaluated the evidence, or failed to apply the benefit-of-the-doubt doctrine, or failed to give reasons and bases, can never rise to the stringent definition of CUE. "Broad-brush" allegations of "failure to follow the regulations" or "failure to give due process" are also insufficient bases for CUE. Fugo, 6 Vet. App. at 44. Regarding the delay in obtaining the private records, or the failure to obtain an opinion as to the existence of hypertension, a failure in the duty to assist, such as a failure to obtain private treatment records or a medical opinion, does not establish CUE. See Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002). In Cook, the Federal Circuit emphasized that a purported failure in the duty to assist cannot give rise to clear and unmistakable error. In other words, to present a valid claim of CUE, the claimant cannot simply request that the Board reweigh or reevaluate the evidence. Crippen v. Brown, 9 Vet. App. 412 (1996). Further, an alleged failure in the duty to assist by the RO may never form the basis of a valid claim of CUE, because it essentially is based upon evidence that was not of record at the time of the earlier rating decision. See Elkins v. Brown, 8 Vet. App. 391, 396 (1995). The fact that medical knowledge was not advanced to its current state may not form the basis for a valid claim of CUE, because it is also premised upon facts that were not then of record. Subsequently developed evidence may not be considered in determining whether error existed in the prior decision. See Porter v. Brown, 5 Vet. App. 233, 235-36 (1993). Moreover, the mere misinterpretation of facts by the RO does not constitute CUE. Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). The Board acknowledges that the November 2011 VA examiner listed the date of diagnosis of hypertension as 1986. Moreover, the Veteran has recently submitted records obtained from the same examiner affirming her opinion that a diagnosis of hypertension was supported in light of the findings on the separation examination. The examiner's opinion that a diagnosis of hypertension was supported at the time of service separation is also evidence that was not of record at the time of any prior denial of the claim. It does not establish that there was CUE in any prior decision. Accordingly, the Board finds that revision of the April 1987, January 1996, March 1999, and July 1999 rating decision on the basis of CUE is not warranted. Duties to Notify and Assist The Veterans Court has held that an appellant claiming entitlement to an earlier effective date is not prejudiced by failure to provide notice of the laws and regulations governing effective dates, if, based on the facts of the case, entitlement to an earlier effective date is not shown as a matter of law. See Nelson v. Principi, 18 Vet. App. 407, 410 (2004). Here, no additional development could alter the evidentiary or procedural posture of this case. Therefore, no notice under the Veterans Claims Assistance Act of 2000 (VCAA) is necessary. See DelaCruz v. Principi, 15 Vet. App. 143, 149 (2001) (VCAA notice not required where there is no reasonable possibility that additional development will aid the claimant). Given the parameters of the law surrounding CUE claims, the duties to notify and assist imposed by the VCAA are not applicable where CUE is claimed in RO decisions (see Parker v. Principi, 15 Vet. App. 407 (2002), regarding Board CUE see Livesay v. Principi, 15 Vet. App. 165 (2001)). As noted in Livesay, CUE claims are not conventional appeals, but rather are requests for revision of previous decisions. 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. Id. Furthermore, the Board finds that general due process concerns have been satisfied in connection with this appeal. See 38 C.F.R. § 3.103 (2014). The Veteran was provided with ample opportunity to submit evidence and argument in support of his claims and was given the opportunity to present testimony regarding the claims. When conducting a hearing, a VA hearing officer, to include a Veterans Law Judge, must suggest that a claimant submit evidence on any issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record. See Bryant v. Shinseki, 23 Vet. App. 488 (2010); 38 C.F.R. § 3.103. The hearing officer also must suggest the submission of evidence when testimony during the hearing indicates that it exists (or could be reduced to writing) but is not of record. Here, during the Board hearing, the appellant was notified of the reasons for the denial of the claims and of the law applicable to the assignment of effective dates. Moreover, his assertions of CUE in prior rating decisions were acknowledged and testimony was taken as to the specific assertions of CUE. The Board concludes that no further assistance with the development of evidence is required. CONTINUED ON NEXT PAGE-ORDER ORDER An effective date earlier than March 31, 2011 for the grants of service connection for hypertension and left ventricular hypertrophy is denied. Revision of RO rating decisions of April 1987, January 1996, March 1999, and July 1999, on the basis of CUE is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs