Citation Nr: 18147634 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 16-35 495 DATE: November 5, 2018 ORDER 1. The October 16, 1995 rating decision denying service connection for gastritis was not clearly and unmistakably erroneous (CUE). 2. An effective date prior to September 3, 2014 for service connection for gastritis is denied. FINDINGS OF FACT 1. An October 16, 1995 rating decision denied service connection for gastritis on the grounds that the evidence did not show a current disability; this decision became final. 2. The evidence has not established, without debate, that the correct facts, as then known, were not before the Regional Office (RO) at the time of the October 16, 1995 rating decision, or that the RO incorrectly applied the applicable laws and regulations existing at the time. 3. A claim to reopen service connection for gastritis was received by VA on September 3, 2014; there were no communications received prior to September 3, 2014 that could be construed as a formal or informal claim to reopen service connection for gastritis. CONCLUSIONS OF LAW 1. The October 16, 1995 rating decision denying service connection for gastritis was not clearly and unmistakably erroneous. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105. 2. The criteria for an effective date prior to September 3, 2014 for service connection for gastritis have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, served on active duty from January 1986 to April 1994. 1. Whether the October 16, 1995 rating decision contains CUE The Veteran asserts that there was CUE in an October 16, 1995 rating decision to deny service connection. Specifically, the Veteran alleges that at the time of the October 1995 rating decision there was sufficient documentation to support a current diagnosis for gastritis because service treatment records documented treatment for diagnosed gastritis. See October 2015 Notice of Disagreement; July 2016 VA Form 9. Previous determinations that are final and binding, including decisions of service connection and other matters, will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior rating decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicatory decision which constitutes a reversal of a prior decision on the grounds 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). CUE 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 result would have been manifestly different but for the error. Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of “failure to follow the regulations” or “failure to give due process,” or any other general, nonspecific claim of “error.” Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. at 44. In the present case, the Veteran alleges CUE in a prior October 1995 decision that denied service connection for gastritis. The pertinent laws and regulations at the time of this decision were essentially the same as they are now. Evidence of record at the time of the October 1995 rating decision included service treatment records and a July 1995 VA examination report. Service treatment records reflect the Veteran was treated for epigastric pain in October 1986 and hospitalized in September 1990 for treatment of diagnosed gastritis. Service treatment records do not reflect any further complaints or treatment for epigastric pain or gastritis, and a December 1992 service examination report reflects the Veteran’s abdomen and viscera were found to be clinically normal. Further, a July 1995 VA examination report reflects the Veteran reported gastroenteritis symptoms during service and that such symptoms had resolved in 1990 when the Veteran left Germany, and examination of the Veteran’s digestive system did not reveal gastritis. After considering the Veteran’s contentions, the evidence of record at the time of the October 1995 rating decision, and the reasons and bases stated in the rating decision, the Board finds no clear error in the October 1995 rating decision finding that, at the time of the claim that was adjudicated in October 1995, there was no residual or chronic disability due to the epigastric pain and gastritis that was treated during service. At the time of the October 1995 rating decision, the evidence showed that, while the Veteran had been treated for epigastric pain and gastritis during active service, the gastritis had resolved. The evidence showing the gastritis had resolved includes the negative December 1992 service examination and July 1995 VA examination reports, as well as the Veteran’s own report during the July 1995 VA examination that gastroenteritis symptoms had resolved in 1990. The Veteran has failed to demonstrate that the October 16, 1995 rating decision misapplied, or failed to apply, any applicable law or VA regulation, or that the decision otherwise contained CUE. The Veteran’s arguments boil down to allegations that the RO in 1995 improperly weighed the evidence of record in denying the claim; such allegations do not support CUE. Moreover, the Veteran has not offered an explanation as to how the outcome would have been manifestly different but for the claimed errors. The Veteran has only generally asserted that the outcome would have been manifestly different if only the RO had favorably considered the evidence supporting the claim. Based on the above, neither the Veteran or the record reveals an error of fact or law on the part of the RO adjudicator in October 1995 that, had it not occurred, would have resulted in a different outcome (grant of service connection for gastritis). For these reasons, the Board finds that CUE is not shown in the October 1995 rating decision to deny service connection for gastritis. 2. Earlier effective date for service connection for gastritis As discussed above, the Veteran asserts that an effective date earlier than September 3, 2014 for service connection for gastritis is warranted. See October 2015 Notice of Disagreement; July 2016 VA Form 9. An award of direct service connection will be effective on the day following separation from active military service or the date on which entitlement arose if the claim is received within one year of separation from service. Otherwise, except as specifically provided, the effective date of an evaluation and award for pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after a 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. § 5110(a); 38 C.F.R. § 3.400. For claims received prior to March 24, 2015, as pertinent to this case, 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 and VA is required to identify and act on informal claims for benefits. 38 C.F.R. §§ 3.1(p), 3.155(a); see also Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). Pursuant to 38 C.F.R. § 3.155, any communication or action indicating intent to apply for one or more VA benefits, including statements from a veteran’s duly authorized representative, may be considered an informal claim. Such an informal claim must identify the benefit sought. 38 C.F.R. § 3.1(p) defines application as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999). The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). In this case, the Board finds that an effective date earlier than September 3, 2014 for service connection for gastritis is not warranted. The Veteran submitted a claim to reopen service connection for gastritis that was received by VA on September 3, 2014. This claim was granted by the RO in a March 2015 rating decision, which reopened and granted service connection for gastritis effective September 3, 2014 (the date of receipt of the claim to reopen). There was no correspondence received by VA prior to September 3, 2014 that can be construed as a claim, either formal or informal, to reopen service connection for gastritis. Furthermore, the Veteran has not asserted that a formal or informal claim to reopen service connection for gastritis was received by VA earlier than September 3, 2014. On these facts, because the earliest effective date legally possible (September 3, 2014 date of receipt of claim to reopen service connection) has been assigned under 38 C.F.R. §§ 3.400(q)(2) and (r), and no effective date for service connection earlier than September 3, 2014 (date of receipt of claim to reopen service connection for gastritis) is assignable, the appeal for an earlier effective date for service connection for gastritis is without legal merit, and must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). For these reasons, the Board concludes that an effective date prior to September 3, 2014 for the award of service connection for gastritis is not warranted as a matter of law. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Choi, Associate Counsel