Citation Nr: 18152562 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 15-39 278 DATE: November 23, 2018 ORDER An effective date prior to January 7, 2009 for the award of service connection for erectile dysfunction, as secondary to service connected diabetes mellitus, type II, is denied. The September 28, 2009 Department of Veterans Affairs (VA) Regional Office (RO) rating decision denying service connection for gastroesophageal reflux disease (GERD) (claimed as ulcers) was not clearly and unmistakably erroneous (CUE). The September 28, 2009 RO rating decision implicitly denying service connection for retroperitoneal fibrosis was not CUE. The September 28, 2009 RO rating decision implicitly denying service connection for abdominal aortic aneurism was not CUE. The September 28, 2009 RO rating decision implicitly denying service connection for arteriosclerosis was not CUE. The September 28, 2009 RO rating decision implicitly denying service connection for bilateral ureteral obstruction was not CUE. The September 28, 2009 RO rating decision denying service connection for chorioretinal scar of the left eye was not CUE. The September 28, 2009 RO rating decision implicitly denying service connection for hypertension was not CUE. The September 28, 2009 RO rating decision implicitly denying service connection for hypoperfusion, left kidney and lower pole, was not CUE. The September 28, 2009 RO rating decision denying service connection for a low back disorder was not CUE. The September 28, 2009 RO rating decision implicitly denying service connection for pilonidal cyst was not CUE. FINDINGS OF FACT 1. The Veteran had active service from October 1968 to December 1969. 2. The Veteran’s formal claim for service connection for diabetes mellitus, type II, was received on January 7, 2009. 3. No claim, formal or informal, for service connection for diabetes mellitus, type II, or erectile dysfunction was received by VA prior to January 7, 2009. 4. The evidence has not established, without debate, that the correct facts, as then known, were not before the RO at the time of the September 28, 2009 rating decision, or that the RO incorrectly applied the applicable laws or regulations existing at the time. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to January 7, 2009 for the award of service connection for erectile dysfunction, as secondary to service connected diabetes mellitus, type II, have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.400 (2017). 2. The September 28, 2009 rating decision denying service connection for GERD was not clearly and unmistakably erroneous. 38 U.S.C. § 5109A (2012); 38 C.F.R. § 3.105 (2017). 3. The September 28, 2009 rating decision implicitly denying service connection for retroperitoneal fibrosis was not clearly and unmistakably erroneous. 38 U.S.C. § 5109A (2012); 38 C.F.R. § 3.105 (2017). 4. The September 28, 2009 rating decision implicitly denying service connection for abdominal aortic aneurism was not clearly and unmistakably erroneous. 38 U.S.C. § 5109A (2012); 38 C.F.R. § 3.105 (2017). 5. The September 28, 2009 rating decision implicitly denying service connection for arteriosclerosis was not clearly and unmistakably erroneous. 38 U.S.C. § 5109A (2012); 38 C.F.R. § 3.105 (2017). 6. The September 28, 2009 rating decision implicitly denying service connection for bilateral ureteral obstruction was not clearly and unmistakably erroneous. 38 U.S.C. § 5109A (2012); 38 C.F.R. § 3.105 (2017). 7. The September 28, 2009 rating decision denying service connection for chorioretinal scar of the left eye was not clearly and unmistakably erroneous. 38 U.S.C. § 5109A (2012); 38 C.F.R. § 3.105 (2017). 8. The September 28, 2009 rating decision implicitly denying service connection for hypertension was not clearly and unmistakably erroneous. 38 U.S.C. § 5109A (2012); 38 C.F.R. § 3.105 (2017). 9. The September 28, 2009 rating decision implicitly denying service connection for hypoperfusion, left kidney and lower pole, was not clearly and unmistakably erroneous. 38 U.S.C. § 5109A (2012); 38 C.F.R. § 3.105 (2017). 10. The September 28, 2009 rating decision denying service connection for a low back disorder was not clearly and unmistakably erroneous. 38 U.S.C. § 5109A (2012); 38 C.F.R. § 3.105 (2017). 11. The September 28, 2009 rating decision implicitly denying service connection for pilonidal cyst was not clearly and unmistakably erroneous. 38 U.S.C. § 5109A (2012); 38 C.F.R. § 3.105 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from October 1968 to December 1969. This matter came before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision of the RO in Waco, Texas. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). VA’s duties to notify and assist claimants under the VCAA do not apply to claims alleging CUE. Parker v. Principi, 15 Vet. App. 407 (2002); Livesay v. Principi, 15 Vet. App. 165, 179 (2001) (en banc). Therefore, no further discussion of VCAA duties to notify or assist will take place regarding the CUE issues on appeal. Concerning the duty to notify, as to the question of an earlier effective date for the service connected erectile dysfunction, because this issue arises from the Veteran’s disagreement with the effective date following the grant of service connection, no additional notice is required regarding this downstream element of the service connection claim. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the United States Court of Appeals for Veterans Claims (Court) have similarly held that regarding the downstream elements of initial rating and effective dates that, once service connection is granted the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (noting that, once an initial VA decision awarding service connection and assigning a disability evaluation and effective date has been made, 38 U.S.C. § 5103(a) notice is no longer required); 38 C.F.R. § 3.159(b)(3) (no VCAA notice required because of filing of NOD). Regarding the duty to assist, as will be explained below, the law, and not the facts, is dispositive of the effective date in this case; therefore, the duty to assist imposed by the VCAA is not applicable. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). 1. Earlier Effective Date for Erectile Dysfunction 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. 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) (2017); 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) (2017). The Veteran had active service from October 1968 to December 1969. On January 7, 2009, VA received a service connection benefits claim from the Veteran, which the RO found included a claim for service connection for diabetes mellitus, type II. In a September 2009 rating decision, the RO granted service connection for diabetes mellitus, type II, from January 7, 2009, the date of claim. Years later, in a March 2014 rating decision, the RO found that it was CUE when the RO failed to also award service connection for erectile dysfunction, as secondary to service connected diabetes mellitus, type II. Service connection for erectile dysfunction was awarded as of January 7, 2009, the date of claim for service connection for diabetes mellitus, type II. Review of the record reflects that no claim, formal or informal, for service connection for diabetes mellitus, type II, or erectile dysfunction was received by VA prior to January 7, 2009. In a December 2015 brief, the Veteran argued that the effective date for erectile dysfunction should have been November 2004, as that is when the diabetes mellitus, type II, first manifested. The Board is sympathetic to the Veteran’s contention that the effective date for the erectile dysfunction should go back to the date that diabetes mellitus, type II, first manifested; however, the pertinent legal authority governing effective dates is clear and specific, and the Board is bound by such authority. While entitlement to service connection may have arose earlier, the date entitlement arose does not decide the effective date in this case; the date of claim does. The controlling regulation clearly and specifically provides that the effective date shall be the date of receipt of the appellant’s claim or the date on which entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). In this case, the evidence, both lay and medical, shows that the Veteran separated from active service in December 1969, and no claim for service connection for diabetes mellitus, type II, or erectile disfunction was filed within one year of service separation. A formal claim for service connection was received by VA on January 7, 2009, and no claim, formal or informal, was received prior to that date. On these facts, because the earliest effective date legally possible has been assigned under 38 C.F.R. §§ 3.400(q)(2), 3.400(r), and no effective date for the award of service connection earlier than January 7, 2009 (date of receipt of formal claim for service connection) is assignable, the appeal for an earlier effective date as to the issue of service connection for erectile dysfunction, as secondary to service connected diabetes mellitus, type II, 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 January 7, 2009 for the award of service connection for erectile dysfunction, as secondary to service connected diabetes mellitus, type II, is not warranted as a matter of law. 2. CUE in September 28, 2009 Rating Decision Denying Service Connection for GERD 3. CUE in September 28, 2009 Rating Decision Implicitly Denying Service Connection for Retroperitoneal Fibrosis 4. CUE in September 28, 2009 Rating Decision Implicitly Denying Service Connection for Abdominal Aortic Aneurism 5. CUE in September 28, 2009 Rating Decision Implicitly Denying Service Connection for Arteriosclerosis 6. CUE in September 28, 2009 Rating Decision Implicitly Denying Service Connection for Bilateral Ureteral Obstruction 7. CUE in September 28, 2009 Rating Decision Denying Service Connection for Left Eye Chorioretinal Scar 8. CUE in September 28, 2009 Rating Decision Implicitly Denying Service Connection for Hypertension 9. CUE in September 28, 2009 Rating Decision Implicitly Denying Service Connection for Hypoperfusion, Left kidney and Lower pole 10. CUE in September 28, 2009 Rating Decision Denying Service Connection for a Low Back Disorder 11. CUE in September 28, 2009 Rating Decision Implicitly Denying Service Connection for a Pilonidal Cyst 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. The Court has held that there is a three-pronged test to determine whether CUE is present in a prior determination: (1) “[e]ither 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 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 Court has held that allegations that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of clear and unmistakable error. See Baldwin v. West, 13 Vet. App. 1, 5 (1999); Damrel, 6 Vet. App. at 246. If a veteran wishes to reasonably raise a claim of CUE, there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error that, if true, would be CUE on its face, persuasive reasons must be given as to why one would be compelled to reach the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the alleged error. Bustos v. West, 179 F.3d 1378, 1381 (Fed. Cir. 1999), cert. denied, 528 U.S. 967 (1999); Fugo, 6 Vet. App. at 43-44. If the error alleged is not the type of error that, if true, would be CUE on its face, if the veteran is only asserting disagreement with how the RO evaluated the facts before it, or if the veteran has not expressed with specificity how the application of cited laws and regulations would dictate a “manifestly different” result, the claim must be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Luallen v. Brown, 8 Vet. App. 92 (1995); Caffrey v. Brown, 6 Vet. App. 377, 384 (1994). Further, VA’s failure in the duty to assist cannot constitute CUE. See Cook v. Principi, 318 F.3d 1334, 1346 (Fed. Cir. 2003). At the outset, the Board notes that the September 28, 2009, rating decision became final, as the Veteran did not file a timely notice of disagreement (NOD) to the rating decision and no new and material evidence was received during the one year appeal period following that decision. See 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2017). Next, the Board finds the allegations of CUE made by the Veteran are adequate to meet the threshold pleading requirements. See Simmons v. Principi, 17 Vet. App. 104 (2003); Phillips v. Brown, 10 Vet. App. 25 (1997) (distinguishing denial of CUE due to pleading deficiency and denial of CUE on merits). The record reflects that in January 2009 and June 2009, the Veteran sought service connection for a left eye disorder, ulcers (GERD), a low back disorder, and diabetes mellitus, type II. Service and VA treatment records were obtained, and VA eye and diabetes mellitus examinations were performed in July 2009. Per the July 2009 VA eye examination, the Veteran did not have diabetic retinopathy and the diagnosed left eye chorioretinal scarring was of unknown etiology. The report from the July 2009 VA diabetes mellitus examination reflects that, after being diagnosed with diabetes mellitus, type II, the VA examiner opined that diagnosed hypertension, aortic aneurysm, and hydronephrosis were not related to the diabetes mellitus, type II. A RO rating decision was issued in September 2009. The rating decision reflects that the RO reviewed all the relevant evidence of record, including service treatment records and post service VA treatment records. In denying service connection for the left eye, the RO explained that service treatment records were negative for an eye injury during service, and there was no nexus between the diagnosed left eye scarring and service. As to the low back, service connection was denied due to no current diagnosis and no treatment for a back disorder during or immediately after service. Service connection for GERD was denied due to no nexus to service. While the RO did not address the other disabilities diagnosed in the July 2009 VA diabetes mellitus examination, as negative secondary service connection opinions were rendered by the VA examiner, the Board finds that service connection was implicitly denied as to those diagnosed disabilities. For purposes of this opinion, the Board also finds that the other issues on appeal not already discussed were also implicitly denied service connection, as there were no positive nexus or secondary service connection opinions at the time of September 28, 2009 RO rating decision. The Board notes that the Veteran has submitted numerous argument briefs during the course of this appeal, including a December 2015 brief, and the Board has thoroughly reviewed and considered all of the Veteran’s arguments; however, even read in a light most favorable to the Veteran, the Board finds the majority of the arguments amount to nothing more than a disagreement with how the facts were weighed and evaluated, which is explicitly not CUE. Damrel, 6 Vet. App. at 245; Fugo, 6 Vet. App. at 43 44. In particular, the Veteran appears to be focused on the VA treatment records before the RO at the time of the September 28, 2009 rating decision. The Veteran appears to argue that the RO failed to adequately consider certain evidence in the VA treatment records that showed service connection was warranted for one or more of the disabilities on appeal. As discussed above, the September 28, 2009 RO rating decision reflects that the RO reviewed all the relevant evidence of record, including the Veteran’s VA treatment records. As such, the Veteran is essentially disagreeing with how the RO weighed and interpreted the facts. The Board notes that in the December 2015 brief the Veteran argues that the disabilities on appeal were aggravated by the service connected diabetes mellitus, type II. In rendering negative secondary service connection opinions in the July 2009 VA diabetes mellitus examination, the VA examiner opined that the hypertension, aortic aneurysm, and hydronephrosis were not “related” to diabetes, which reasonably could be interpreted as an opinion that the aforementioned disabilities were neither caused nor aggravated by the service connected disabilities; however, even if the July 2009 VA diabetes mellitus examination secondary service connection opinions were inadequate, this would merely constitute a failure in VA’s duty to assist, which, as discussed above, cannot constitute CUE. Cook, 318 F.3d at 1346. (Continued on the next page)   Review of the record reflects no other significant CUE arguments raised by the Veteran. As such, because the arguments presented by the Veteran amount to either a simple disagreement with how the facts were weighed and evaluated or an argument that VA failed in its duty to assist, none of which are CUE under the relevant law, the Board finds there was no CUE in the September 28, 2009 rating decision denying service connection (explicitly or implicitly) for the relevant disabilities on appeal. Damrel, 6 Vet. App. at 245; Fugo, 6 Vet. App. at 43-44; Cook, 318 F.3d at 1346. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Blowers, Counsel