Citation Nr: 19173313 Decision Date: 09/19/19 Archive Date: 09/19/19 DOCKET NO. 18-34 533 DATE: September 19, 2019 ORDER An initial disability rating in excess of 10 percent for viral hepatitis is denied. An initial disability rating in excess of 100 percent for liver carcinoma is denied. An initial disability rating in excess of 10 percent for cirrhosis of the liver with esophageal varices is denied. An effective date earlier than February 10, 2017 for the award of service connection for liver carcinoma is denied. An effective date earlier than May 5, 2014 for the award of service connection for viral hepatitis is denied. FINDINGS OF FACT 1. The Veteran’s viral hepatitis is not manifested by daily fatigue, malaise, and anorexia, does not require continuous medication for control, and is not shown to cause incapacitating episodes. 2. The Veteran has been assigned a 100 percent rating for his liver carcinoma for the entire appeal period, which is the maximum schedular rating authorized for the disability under 38 C.F.R. § 4.114, Diagnostic Code (DC) 7343. 3. The Veteran’s cirrhosis with esophageal varices is not manifested by portal hypertension and splenomegaly with at least minor weight loss; it is also not manifested by two or more of the following symptoms: persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, productive of a considerable impairment of health. 4. The record contains no informal claim, formal claim, or any written intent to file a claim for liver cancer prior to February 10, 2017. The February 10, 2017 claim was received later than the date entitlement arose. 5. An unappealed March 2010 rating decision denied a claim for service connection for hepatitis. The Veteran was notified of that decision and apprised of his appellate rights but did not appeal. There was also no new and material evidence received within one year of the issuance of that decision. 6. On May 5, 2014, VA received the Veteran's claim for service connection for hepatitis. 7. There were no informal or formal claims, or written intent to file a claim for service connection for hepatitis dated after the March 2010 denial and prior to the May 5, 2014 claim. 8. The March 1972 rating decision denying entitlement to service connection for a liver condition does not contain an outcome-determinative error in applying the law extant at that time to the facts that were before the adjudicator. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for viral hepatitis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.114, DC 7354. 2. The criteria for a disability rating in excess of 100 percent for liver carcinoma have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.114, DC 7343. 3. The criteria for an initial disability rating in excess of 10 percent for cirrhosis with esophageal varices have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.114, DCs 7346-7312. 4. The criteria for the assignment of an effective date earlier than February 10, 2017 for the grant of service connection for liver cancer are not met. 38 U.S.C. §§ 5107, 5110(a); 38 C.F.R. §§ 3.102, 3.155, 3.400. 5. The criteria for the assignment of an effective date earlier than May 5, 2014 for the grant of service connection for hepatitis are not met. 38 U.S.C. §§ 5107, 5110(a); 38 C.F.R. §§ 3.102, 3.155, 3.400. 6. The criteria to establish CUE in the RO's March 1972 decision denying service connection for a liver condition have not been met. 38 U.S.C. §§ 5109A, 7105(c); 38 C.F.R. §§ 3.104, 3.105. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1968 to July 1970 in the United States Army. These matters come before the Board of Veterans' Appeals (Board) on appeal from May 2017, July 2017, and November 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2018, the Veteran and his spouse testified before the undersigned during a videoconference hearing. A transcript of the hearing is included in the electronic claims file. Higher Ratings Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disability specified is considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. Viral Hepatitis In the May 2017 rating decision on appeal, the RO granted service connection for viral hepatitis and assigned a 10 percent rating under 38 C.F.R. § 4.114, DC 7354. Under DC 7354, a 10 percent rating is assigned for intermittent fatigue, malaise, and anorexia, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least one week, but less than two weeks, during the past 12-month period. A 20 percent rating is assigned for daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), requiring dietary restriction or continuous medication, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least two weeks, but less than four weeks, during the past 12-month period. A 40 percent rating is assigned for daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least four weeks, but less than six weeks, during the past 12-month period. A 60 percent rating is assigned for daily fatigue, malaise, and anorexia, with substantial weight loss (or other indication of malnutrition), and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least six weeks during the past 12-month period, but not occurring constantly. A 100 percent rating is assigned for near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). Notations under the code indicate that sequelae, such as cirrhosis or malignancy of the liver, are to be rated under an appropriate diagnostic code, but the same signs and symptoms are not to be used as the basis for rating under Diagnostic Code 7354 and under a diagnostic code for sequelae. Additionally, an incapacitating episode is defined as “a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician.” Ratings under Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, will not be combined with each other. A single rating will be assigned under the code that reflects the predominant disability picture, with elevation to the next higher rating where the severity of the overall disability warrants such elevation. The probative evidence includes VA examination reports of May 2017 and April 2018. The Veteran’s VA treatment records and private medical records were considered, but are not specifically discussed herein as they do not speak directly to the rating criteria. Additionally, at the August 2018 hearing, the Veteran’s representative predominantly presented argument concerning the earlier effective date claims. Neither the Veteran nor his spouse testified concerning his hepatitis symptoms. On VA examination in May 2017, the Veteran’s signs and symptoms of hepatitis included intermittent fatigue, intermittent malaise, and intermittent nausea. There had been no incapacitating episodes during the past 12 months. Continuous medication was not required for control of the condition, and the examiner did not render findings regarding any dietary restriction. Both a magnetic resonance cholangiopancreatography study and laboratory studies were conducted. A liver biopsy was performed in 2008 with normal results. There were no other pertinent physical findings, complications, conditions, signs, or symptoms related to hepatitis. On VA examination in April 2018, the Veteran’s signs and symptoms of hepatitis included intermittent fatigue, intermittent malaise, intermittent nausea, and intermittent anorexia. There had been no incapacitating episodes during the past 12 months. Continuous medication was not required for control of the condition, and the examiner did not render findings regarding any dietary restriction. The 2017 magnetic resonance imaging studies were discussed, as were the Veteran’s laboratory results. There were no other pertinent physical findings, complications, conditions, signs, or symptoms related to hepatitis. Considering the pertinent evidence in light of the governing legal authority, the preponderance of the evidence is against a rating higher than 10 percent for viral hepatitis under DC 7354. The VA examiners specified that the Veteran’s symptoms were intermittent, not daily, and stated that continuous medication was not required to control the condition. The Veteran has not had incapacitating episodes. As such, the preponderance of the evidence is against the claim. The Board has considered whether a rating in excess of 10 percent warranted under any other diagnostic code. However, as noted, while hepatitis may be rated on the basis of cirrhosis or malignancy of the liver, the Veteran is already receiving separate ratings for both of these conditions. His hepatitis is not shown to involve any other factors that warrant evaluating the disability under any other provision of VA’s rating schedule. For all the foregoing reasons, the Board finds that the preponderance of the evidence is against any higher or separate rating for the viral hepatitis. The Board considered the doctrine of reasonable doubt in reaching this decision. Liver Carcinoma In the July 2017 rating decision on appeal, the Veteran was awarded service connection for liver carcinoma, and assigned a 100 percent rating under 38 C.F.R. § 4.114, DC 7343. Diagnostic Code 7343 provides a 100 percent rating for malignant neoplasms of the digestive system, exclusive of skin growths. A note following the DC provides the following: a rating of 100 percent shall continue beyond the cessation of any surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure. Six months after discontinuance of such treatment, the appropriate disability rating shall be determined by mandatory VA examination. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of §3.105(e) of this chapter. If there has been no local recurrence or metastasis, rate on residuals. Here, as the maximum schedular rating of 100 percent has been in effect for the entirety of the appeal period, the Board concludes that the Veteran is not entitled to a higher schedular rating. There are no other diagnostic codes that are applicable. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). As there is no legal basis upon which to award a higher schedular rating, the Veteran's increased rating claim must be denied. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Cirrhosis of the Liver with Esophageal Varices In a September 2017 rating decision, the RO awarded service connection for esophageal varices and assigned a noncompensable evaluation under 38 C.F.R. § 4.114, DC 7399-7346. In the November 2017 rating decision on appeal, the RO granted service connection for cirrhosis of the liver with esophageal varices and assigned a 10 percent rating under 38 C.F.R. § 4.114, DC 7346-7312. The regulations provide that when the disability being rated is not specifically provided for in the rating schedule, it will be rated under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. Unlisted disabilities requiring rating by analogy will be coded with the first two numbers of the schedule provisions for the most closely related body part and "99." 38 C.F.R. § 4.27. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after a hyphen. Under DC 7346, a 10 percent rating is assigned with two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent rating is assigned with persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A maximum rating of 60 percent is assigned with symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of a severe impairment of health. Under DC 7312, a 10 percent rating is assigned with symptoms such as weakness, anorexia, abdominal pain, and malaise. A 30 percent rating is assigned for portal hypertension and splenomegaly, with weakness, anorexia, abdominal pain, malaise, and at least minor weight loss. A 60 percent rating is assigned where there is a history of one episode of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy (erosive gastritis). A 70 percent rating is assigned where there is a history of two or more episodes of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy (erosive gastritis), but with periods of remission between attacks. A maximum rating of 100 percent is assigned for generalized weakness, substantial weight loss, and persistent jaundice, or; with one of the following refractory to treatment: ascites, hepatic encephalopathy, hemorrhage from varices or portal gastropathy (erosive gastritis). The probative evidence includes VA examination reports of May 2017, September 2017, and April 2018. The Veteran’s VA treatment records and private medical records were considered, but are not specifically discussed herein as they do not speak directly to the rating criteria. Additionally, at the August 2018 hearing, the Veteran’s representative predominantly presented argument concerning the earlier effective date claims. Neither the Veteran nor his spouse testified concerning his symptoms of cirrhosis with esophageal varices. On VA examination in May 2017, the Veteran’s signs and symptoms of cirrhosis included intermittent weakness, intermittent abdominal pain, and intermittent malaise. The 2017 magnetic resonance imaging studies were discussed, as were the Veteran’s laboratory results. There were no other pertinent physical findings, complications, conditions, signs, or symptoms related to cirrhosis. On VA examination in September 2017, the Veteran’s esophageal varices were manifested by substernal pain and nausea. There were no other pertinent physical findings, complications, conditions, signs, or symptoms. On VA examination in April 2018, the signs and symptoms attributable to cirrhosis consisted of intermittent weakness, intermittent anorexia, intermittent abdominal pain, and intermittent malaise. The 2017 magnetic resonance imaging studies were discussed, as were the Veteran’s laboratory results. There were no other pertinent physical findings, complications, conditions, signs, or symptoms related to cirrhosis. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against a rating higher than 10 percent for cirrhosis with esophageal varices. The 10 percent rating currently assigned has been awarded under DC 7312 as the Veteran has weakness, anorexia, abdominal pain, and malaise attributable to cirrhosis. To the extent these are the same symptoms for which he is being compensated for his hepatitis, it is not within the Board’s purview to disturb the ratings already assigned. The preponderance of the evidence is against a rating in excess of 10 percent under DC 7312, however, as the record does not indicate the presence of portal hypertension and splenomegaly with at least minor weight loss. As for DC 7346, the preponderance of the evidence is against any higher or separate rating. As noted above, a compensable rating requires evidence of two or more symptoms for the 30 percent evaluation of less severity. The September 2017 examiner documented only one symptom contemplated by the 30 percent rating, namely, substernal pain. The record does not otherwise show the presence of persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, productive of a considerable impairment of health. The Board has considered whether a rating in excess of 10 percent warranted under any other diagnostic code. However, as noted, the Veteran is already receiving separate ratings for his hepatitis, cirrhosis with esophageal varices, and malignancy of the liver. His cirrhosis with esophageal varices is not shown to involve any other factor warranting evaluation of the disability under any other provision of VA’s rating schedule. For all the foregoing reasons, the Board finds that the preponderance of the evidence is against any higher or separate rating for cirrhosis with esophageal varices. In reaching this decision the Board considered the doctrine of reasonable doubt. Earlier Effective Dates Generally, the effective date for the grant of service connection based upon an original claim, a claim reopened after final disallowance, or a claim for increase is either the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise it will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400 (b). Additionally, in a claim for increase or to reopen, a report of examination or hospitalization may be accepted as an informal claim for benefits, but that regulation not apply here. 38 C.F.R. § 3.157 (b); see Sears v. Principi, 16 Vet. App. 244, 249 (2002). A claim is 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, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris, may be considered an informal claim. Such an informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year after the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155; Norris v. West, 12 Vet. App. 413 (1999). VA amended its regulations on March 24, 2015 to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The claims here were properly filed on a standard form. Additionally, under the amended version of the regulation, a claimant may submit an intent to file a claim via various methods, including electronically, in writing, or orally. VA may recognize the receipt date of the intent to file a claim as the date of claim so long as VA receives the successfully completed claim form within a year. 38 C.F.R. § 3.155(b). Liver Carcinoma The Veteran seeks an effective date earlier than February 10, 2017, for the grant of service connection for liver carcinoma. In his Notice of Disagreement, he stated that the effective date should be 2014 when he was first diagnosed with liver cancer. He separated from service in July 1970. A claim for service connection for liver cancer was not received within one year of date of discharge. In September 1971, the Veteran sought service connection for a liver condition. In a May 1972 rating decision, service connection for a liver condition was denied. Viral hepatitis had been found in June 1971 but as a December 1971 medical examination was normal, service connection for a liver condition was denied. The Veteran did not have liver cancer at the time and as discussed below, was not diagnosed with the disease until 2014. In Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008), the Federal Circuit held that where there is a final agency decision denying a claim based on a particular diagnosis, and subsequently a new and different diagnosis is submitted for VA's consideration, the second diagnosis must be considered factually distinct from the first, and must be considered to relate to a separate claim. As such, the March 1972 rating decision does not serve as a prior final decision on the present claim for liver cancer. Moreover, the Court has specifically held that if a claimant filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested. See McGrath v. Gober, 14 Vet. App. 28, 35 (2000) (remanding case for Board to determine when the disability manifested itself under ... all of the “facts found” and to assign an effective date for benefits accordingly); see also Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed.Cir.2008) (finding it “illogical” to award benefits on a certain date “when the evidence indicates that those conditions did not develop until some later date”). The record shows that a magnetic resonance imaging study (MRI) conducted in October 2014 first indicated the presence of liver cancer. In a Statement in Support of Claim (VA Form 21-4138) received in November 2014, the Veteran stated he had recently been diagnosed with liver cancer. As such, he asked VA to expedite his pending claims as they had been processing for several months. Subsequently, in a January 2015 Report of General Information (VA Form 27-0820), the RO called the Veteran to clarify the disabilities for which he was seeking service connection. He identified ten different claims, including claims for a nervous condition, hepatitis C, back condition, hip condition, ankle condition, bilateral foot condition, posttraumatic stress disorder, sleep apnea, sleep deprivation, and tinnitus. Liver cancer was not included among the disabilities for which he intended to seek service connection. Two years later, on February 10, 2017, VA sent the Veteran a letter informing him that his intent to file a claim for compensation had been received on February 10, 2017. Within one year of that, on June 12, 2017, VA received an Application for Disability Compensation and Related Compensation Benefits (VA Form 21-526EZ), in which the Veteran requested service connection for liver cancer. In the July 2017 rating decision on appeal, the RO granted service connection for liver cancer, and assigned a 100 percent rating from June 12, 2017. In a June 2018 rating decision, the RO amended the effective date to February 10, 2017, the date that VA was notified of the Veteran’s intent to file a claim for compensation. The Board has reviewed the record to determine whether there are any applications dated prior to February 10, 2017 upon which an earlier effective date of service connection may be granted. In this regard, the Board has considered the November 2014 correspondence received from the Veteran. However, this letter does not indicate any intention from the Veteran to seek service connection for liver cancer. See Borkowski v. Shinseki, 23 Vet. App. 79, 84 (2009); MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that there must be some intent expressed to apply for benefits). Rather, he merely stated he had liver cancer in support of his request for VA to expedite his already pending claims. Moreover, when VA contacted him in January 2015 to clarify the disabilities for which he intended to seek service connection, liver cancer was not among the claims he identified. As such, the November 2014 correspondence does not constitute an informal claim. It was not until the February 10, 2017 intent to file a claim, followed by the June 2017 formal application, that the Veteran filed a claim for service connection for liver cancer. The Board can point to no communication prior to the February 10, 2017 claim that could be interpreted as a claim for service connection for the disability. As for the date on which entitlement arose, as noted, the record indicates that liver cancer was first identified on MRI dated from October 23, 2014. Prior to this date, there are no medical records showing liver cancer; the medical evidence consistently places the date of diagnosis as 2014. To the extent the Veteran reports the presence of liver symptoms prior to February 10, 2017, as a layperson, he does not have the requisite expertise to provide a competent opinion as to whether he had liver cancer. This type of matter requires medical expertise. 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements, or opinions). The regulations provide that the proper effective date will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400 (b). Here, as the claim was received later than the date entitlement arose, the Board finds that the proper effective date for the award of service connection for liver cancer is February 10, 2017, the date assigned by the RO. The Board recognizes that the Veteran was awarded service connection for liver cancer as secondary to his service-connected hepatitis. Service connection for hepatitis was granted in a May 2017 rating decision, effective from May 5, 2014. However, the Federal Circuit has repeatedly rejected the argument that a disability service connected as secondary to an underlying service-connected disability be entitled to the effective date of the underlying disability. See Manzanares v. Shulkin, 863 F.3d 1374 (Fed. Cir. 2017). There is nothing in the history of 38 C.F.R. § 3.310 (a) to suggest that a claim for secondary service connection should be treated as part of a claim for primary service connection. Id. at 1374. In sum, there is simply no legal entitlement to an earlier effective date for the award of service connection for the Veteran’s liver cancer. As such, the claim must be denied. Viral Hepatitis The Veteran seeks an effective date earlier than May 5, 2014 for the grant of service connection for his hepatitis. He has presented a variety of arguments for an earlier effective date, as discussed below. The Veteran separated from service in July 1970. A claim for service connection for a hepatitis was not received within one year of the date of his discharge. In September 1971, the Veteran sought service connection for a liver condition. In a May 1972 rating decision, service connection for a liver condition was denied. Thereafter, service connection for viral hepatitis was denied in July 1975 and March 2010 rating decisions. Following the last, final rating decision of March 2010, the Veteran was notified of his appellate rights. He did not appeal or submit new and material evidence within one year, and the March 2010 rating decision became final. The effect of that finality is to preclude an award of an effective date prior to that denial. The Veteran has not raised a motion of clear and unmistakable error (CUE) or otherwise challenged the finality of that decision. Following the March 2010 rating decision, on May 5, 2014, the RO received an application to reopen the claim for service connection for hepatitis via VA Form 21-526b (Veteran’s Supplemental Claim for Compensation). In a May 2015 rating decision, the RO again denied service connection for hepatitis. The Veteran filed a timely Notice of Disagreement (NOD) with this decision in July 2015. Subsequently, in a May 2017 rating decision, the subject of this appeal, the RO awarded service connection for hepatitis and assigned a 10 percent rating, effective May 5, 2014. The appellant perfected a timely appeal of the effective date assigned. Because the current effective date of service connection was based upon the date his May 2014 claim was received, the question before the Board is whether there are any earlier claims upon which an earlier effective date of service connection may be granted. On review of the record, however, the Board can point to no communication dated after the last final rating decision of March 2010, and prior to the May 2014 VA Form 21-526b, that could be interpreted as a claim for service connection for hepatitis. Thus, the only date that could serve as a basis for the award of service connection is the date of receipt of the Veteran's claim for service connection on May 5, 2014. The exact date on which entitlement arose need not be ascertained in order to conclude that the May 5, 2014, date selected by the RO is the earliest possible effective date here. The reason for this is that, to the extent that entitlement arose prior to May 5, 2014, the date of claim would be the later of the two, and hence the correct effective date as provided by 38 C.F.R. § 3.400(b)(2). Any evidence showing that the entitlement occurred after July 29, 2011 would similarly not entitle the Veteran to an effective date earlier than that already assigned. The Veteran’s representative has presented two arguments in support of the claim for an earlier effective date, one involving 38 C.F.R. § 3.156(c), and the other involving an allegation of clear and unmistakable error (CUE) in the March 1972 rating decision. With regard to the augment under 38 C.F.R. § 3.156(c), the representative asserts that because the Veteran’s service treatment records (STRs) do not appear to have been associated with the claims file until 2015, the prior rating decision(s) should be reconsidered. 38 C.F.R. § 3.156(c) provides the following: notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to: (i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph (c) of this section are met; (ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and (iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim. Here however, 38 C.F.R. § 3.156(c) does not apply. The regulation requires that the official service department records be “relevant.” On entry into service, neither hepatitis nor any liver abnormality was noted. STRs dated thereafter are silent for complaints, diagnoses, or treatment pertaining to hepatitis or a liver problem. On his September 1970 separation examination, no abnormalities of the abdomen or viscera were found, and there was no documentation of hepatitis or any liver problem. The Veteran raised no pertinent complaints on his accompanying Report of Medical History. As the STRs received by VA after the prior final rating decisions are not relevant to his claim for service connection for hepatitis, reconsideration of the claim is not indicated under § 3.156(c). With regard to the argument involving CUE, the Court has set forth a three pronged test to determine whether CUE is present in a prior determination: (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 that 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 (1994), Russell v. Principi, 3 Vet. App. 310 (1992). Judicial precedent has consistently stressed the rigorous nature of the concept of CUE. “Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. It is not mere misinterpretation of facts.” Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). The Court has further stated that a CUE is a very specific and a 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. 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 clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993), citing Russell v. Principi, 3 Vet. App. at 313 (en banc). An assertion of CUE is a collateral attack on an otherwise final rating decision by a VA regional office. Smith v. Brown, 35 F.3d 1516, 1527 (Fed. Cir. 1994). As such, 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). Where evidence establishes CUE, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating 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. §§ 3.104(a); 3.400(k). The Veteran’s representative alleges that a CUE occurred in the March 1972 rating decision. As the RO adjudicated this matter in the June 2018 Statement of the Case (SOC), the Board may also adjudicate it. See Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002) (the Board lacks jurisdiction over any theory of CUE that has not been adjudicated by the RO in the first instance). There are several arguments involving CUE and the Board will attempt to summarize them: • The 1972 rating decision contained CUE because the Veteran’s STRs were not available at the time or considered. • Alternatively, the 1972 rating decision is inconsistent, to the extent that the rater both stated that the STRs were unavailable, and also referred to a Form SF-89 (Report of Medical History). • The 1972 rating decision contained CUE because presumptive service connection was warranted for hepatitis. • The 1972 rating decision contained CUE because particular VA treatment records dated from the 1970s were not considered and were in VA’s constructive possession. Initially, under the law extant in 1972, service connection was warranted for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. § 1110. Essentially, the relevant laws and regulations referable to claims to establish service connection were essentially the same in 1972 as they are today. With regard to the STRs, as discussed above, the records do not contain any diagnoses, complaints, or treatment pertinent to hepatitis, and neither hepatitis nor a liver abnormality were found on separation from service. As such, it is far from “undebatable” that if the STRs had been reviewed, service connection would have been awarded. To the extent the RO actually considered or reviewed any STRs, disagreements regarding how facts should be weighed cannot constitute CUE. “The claimant . . . must assert more than a disagreement as to how the facts were weighed or evaluated.” Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). With regard to the argument concerning presumptive service connection, hepatitis was not at the time of the 1972 rating decision, and is not now, a disability recognized as a chronic disease under 38 C.F.R. § 3.309 (a), and as such, service connection cannot be established presumptively. With regard to the VA treatment records, a review of these records shows that the Veteran was diagnosed with hepatitis in as early as September 1970. The records, however, do not address the etiology of the disability or link it to service. Indeed, the etiology was, at best, unclear as a June 1971 VA record attributed the disability to “repeated liver insult – i.e. drug addiction.” Thus, even if in VA’s constructive possession, it is not undebatable that service connection would have been granted had they been considered in the 1972 rating decision. For the foregoing reasons, it cannot be said that the RO’s denial of entitlement to service connection for hepatitis in its March 1972 rating decision contained an outcome-determinative error in applying the law extant at that time to the facts that were before the adjudicator. The motion alleging CUE in the March 1972 rating decision must therefore be denied. The benefit-of-the-doubt rule is not for application. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Smith, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.