Citation Nr: 21076881 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 12-03 944 DATE: December 28, 2021 ORDER An effective date earlier than September 14, 1998, for the grant of service connection for heart disorder manifested by left ventricular hypertrophy and cardiomegaly is denied. FINDINGS OF FACT 1. The Veteran sent a letter to the Secretary of Veterans Affairs in late 1994; however, there is no evidence that the Regional Office (RO) received an expression of dissatisfaction or disagreement specifically with the October 1994 rating decision and a desire to contest the result expressed in that rating decision. 2. There is no evidence that the RO did not act on any expression of disagreement with the October 1994 rating decision and the presumption of regularity is not rebutted. 3. Thereafter, a claim for service connection was not received until September 14, 1998. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to September 14, 1998, for entitlement to service connection for a heart disorder are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1971 to October 1973. In a July 2019 decision, the Board denied entitlement to an effective date earlier than September 14, 1998, for the grant of service connection for a heart disorder manifested by left ventricular hypertrophy and cardiomegaly. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2020 Memorandum Decision the Court vacated the Board's decision and the appeal was returned to the Board. In August 2016, the Veteran testified at a hearing before a Veterans Law Judge. A transcript of this hearing is of record. The Judge who conducted that hearing is no longer employed by the Board. After the December 2020 Court decision, the Veteran testified at a hearing before the undersigned in September 2021. A transcript of the hearing has been associated with the record. Entitlement to an effective date earlier than September 14, 1998, for the grant of service connection for heart disorder manifested by left ventricular hypertrophy and cardiomegaly. The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Generally, the effective date of a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. The procedural history of this case begins in October 1975 when the Veteran initially filed a claim for service connection for a heart problem. That claim was denied in a May 1976 rating decision. The Veteran does not argue that he appealed that decision. The denial was continued in a February 1978 rating decision that the Veteran appealed to the Board. In a November 1978 decision, the Board denied the claim. Board decisions were not appealable at that time. The Veteran filed a claim to reopen in November 1980. In November 1980 correspondence, the RO informed the Veteran that he needed to present new and material evidence to reopen the claim and that no further action can be taken until new evidence was received. The Veteran does not argue that he responded to that communication. In March 1994, the Veteran sought to reopen the claim. In an October 1994 rating decision, the AOJ determined new and material evidence had not been submitted and the application was denied. In an April 1999 rating decision, the RO again denied the claim to reopen, based on a lack of new and material evidence. The Veteran perfected an appeal of that decision to the Board. In an October 2000 decision, the Board reopened the claim and remanded for further development. The Board ultimately granted the claim for service connection in an August 2010 decision. In a February 2011 rating decision, the RO implemented the grant of service connection and assigned an effective date of September 14, 1998. The Veteran disagreed with the effective date assigned and perfected the current appeal to the Board. The Board denied the claim for an earlier effective date in March 2017 and June 2018 decisions which the Veteran appealed to the Court. After multiple Joint Motions for Remand, the claim was again denied by the Board in the July 2019 decision, which the Veteran most recently appealed to the Court. At issue here is whether the Veteran appealed the October 1994 rating decision or whether that decision became final due to a failure by the Veteran to perfect an appeal. The Board concludes that he did not. In a November 8, 1994, letter to the Veteran and his then-representative, Disabled American Veterans (DAV), the AOJ provided notice of the October 1994 rating decision that denied his claim to reopen and his appellate rights. The record then includes a DTS Control and Tracking Sheet referring to "miscellaneous correspondence" from the Veteran to the Secretary of Veterans Affairs, dated December 10, 1994. The subject was characterized as "RECORDS/ CORRECTION AND/OR COMPLETION OF." Also of record is a letter from the Veteran, addressed to "Dear Sir," bearing a date stamp as received in December 1994. In the letter, the Veteran references his "concern dealing with [his] Military Active Duty, and Army Reserve Medical Records." The Veteran said he had been told some of his active duty service records had been destroyed, either in a fire or because of court charges against him, that his records had been corrected during service to reflect his birth name. The Veteran also said that after his first physical inspection in November 1970 he was advised to go see his own family physician concerning the condition of his heart. The Veteran concluded his correspondence asking for assistance in finding missing information to get his military and medical records up to date. There was no reference in that correspondence to a claim for service connected, to include October 1994 denial of his claim to reopen. Given responses contained in the record, it appears the Veteran sent at least two letters in December 1994, one to the Secretary of VA and one to the Department of the Army. A January 11, 1995, response to the Veteran appears from the Department of the Army concerning his records detailing where they were currently located and that the National Personnel Records Center had no additional documents. A January 30, 1995, response from the Director of the Muskogee Regional Office (RO) indicated that a letter to Secretary Brown had been referred to him for response because the Veteran's records were located with the Regional Office. A complete response could not be given at that time because the Veteran's file had been temporarily transferred to a VA Medical Center (VAMC). The Director wrote that the Regional Office would be in contact when once the file was returned. Review of the record shows that the Veteran's file had been temporarily transferred to the Oklahoma City VAMC to schedule him for a VA examination in connection with a claim for service connection for posttraumatic stress disorder (PTSD) filed in December 1994. The Veteran underwent the examination in January 1995. On February 21, 1995, the RO Director provided a "further response" to the Veteran's letter to Secretary Brown. It provided a procedural history of the claims currently pending at that office noting a November 1978 denial by the Board of service connection for heart disease and the service treatment records that had been considered in that decision. It was noted the RO requested an additional search for service medical records, as a result of receiving a request to reopen his claim in March 1994. It was noted that although additional records were received, they did not show complaint, treatment or diagnosis of a cardiovascular condition. Most recently, it was indicated the RO had received a claim to establish service connection for PTSD and that the RO would be in further contact as soon as possible concerning that claim. No reference was made to any disagreement the Veteran might have voiced specifically regarding the October 1994 rating decision. The explanation that new records pertinent to reopening his heart claim had not been found following his March 1994 was accurate. In a September 1998 statement, the Veteran said he was diagnosed with a heart condition upon enlistment to service and that he would like to ask for service connection due to aggravation. He went on to say that he felt that PTSD from being locked up in a Korean stockade aggravated his heart condition. There was no indication in this correspondence that he believed a claim for service connection for a heart condition was pending or that he sought reconsideration of the October 1994 rating decision. In April 1999, the RO declined to reopen the claim. In October 2000, the Board found that the Veteran had not appealed the October 1994 Rating Decision and it was final. The Board reopened the claim and remanded for further development. After development on remand, the Board denied the claim for service connection in a December 2001 decision that was appealed to the Court and remanded back to the Board. The Board remanded the claim but denied it again in a July 2005 decision that was appealed to the Court. Pursuant to an April 2007 Court decision, the claim was remanded again in January 2008. The Board ultimately granted the claim of service connection in August 2010. The Veteran perfected the current appeal from the February 2011 rating decision that effectuated the grant of service connection and assigned an effective date of September 14, 1998. In March 2011 correspondence, the Veteran's then-representative before the Board informed the Veteran that nothing could be found in the file to support an effective date earlier than the September 14, 1998, effective date assigned by VA. In a March 2011 notice of disagreement, the Veteran claimed he did file a notice of disagreement (NOD) with the October 1994 rating decision with DAV, his then-representative. He said was told by DAV that the court system would not accept any more appeals from him because "it had been filed and denied three times." He indicated the RO said they did not receive his disagreement letter and he was advised by the RO Director to "just let it alone and go for the PTSD." Afterwards, he reportedly filed a complaint with the Secretary of VA about his NOD "dated 10/27/94." He stated his disagreement was about "[his] appeals decision, [his] medical records, and the way [the RO and DAV] mishandled [his] case." He alleged that the February 21, 1995, correspondence from the RO Director was intended to deceive the Secretary and make him think the RO was still working on reopening his claim in March 1994, but the "content of the letter was false" and it "should have been about the 10/27/94 rating decision." He alleged it was "a cover up to hide the fact that [he] did file [a] notice of disagreement for the 10/27/94 rating decision" and believed it was a "legal method of retaliation against [his] service connection claim." In a June 2011 correspondence, the Veteran repeated that he did file a NOD with DAV and the Muskogee RO. He stated these entities "worked together in an attempt to bury [his] claim in their system" and that the DAV and the RO "stripped, hid, removed or so called misplaced" evidence and other papers from his service connection medical files and that is why his NOD for the October 1994 rating decision was missing. In a February 2012 Form 9, the Veteran alleged that the DAV and RO refused to file his NOD for the October 27, 1994, rating decision to "disconnect [his] benefit to the notice of disagreement that was filed on March 7, 1978" about service connection for a heart condition. In a January 2013 Correspondence, the Veteran asked why the RO Director in his January 1995 response indicated that the Veteran's file had been temporarily transferred to the VAMC in Oklahoma City. He stated that this reply was intended to deceive the Secretary into believing they were handling his case legitimately. At the August 2016 hearing before the Board, the Veteran testified he was going to file a NOD in 1994 with the DAV and he was told they would send his NOD to the RO, but they did not do so. He further testified that he took one to the RO himself and then went back a couple days later and was told one had not been filed. So, he wrote to Secretary Brown to file a complaint that "they would not file his NOD." The Board again denied the claim for an earlier effective date in a July 2019 decision that the Veteran appealed to the Court. The Court vacated that decision in a December 2020 Memorandum Decision because the Board had not afforded the Veteran the 90-day evidence submission period following receipt of the case from the Court, due to the period having been restarted by appointment of a new representative. The Veteran was then afforded another hearing before the undersigned Veterans Law Judge in September 2021. Having exceeded any evidence submission period, the claim can be adjudicated. The Board again finds that entitlement to an effective date prior to September 14, 1998, is not warranted. The Board finds that a timely NOD was not filed with the October 1994 rating decision and that decision became final. A NOD submitted to the RO is not of record and there is no indication that the Veteran otherwise disagreed with the October1994 rating decision within the relevant appeal period. The January and February 1995 responses from the RO Director show the Veteran submitted a letter to the Secretary in December 1994. The December 1994 correspondence addressed to "Dear Sir" is likely the letter to the Secretary; however, that correspondence did not indicate disagreement with the October 1994 rating decision or an intent to contest the result. Even assuming this was not the letter to the Secretary, and that letter is missing from the file, the evidence is against a finding that a valid and timely NOD was submitted. The letter to the Secretary resulted in a tracking sheet being created so that the letter could be answered. That tracking sheet is clear that the letter pertained to "RECORDS/ CORRECTION AND/OR COMPLETION OF." This suggests that the letter was not a NOD but instead an inquiry about records. The February 1995 response from the RO Director similarly suggests that the letter to the Secretary was an inquiry about records rather than a NOD as it directly addressed what evidence was of record at the time of the last decision as well as what efforts had been undertaken to obtain records. If the letter to the Secretary was a NOD, the Board would expect that the letter from the RO Director would have mentioned the appeal as the RO Director updated the Veteran on the status of his other pending claim. The Board recognizes the Veteran's assertion that the RO Director may have been trying to deceive the Secretary; however, finds this assertion is uncorroborated by other evidence. The January 1995 letter referencing that the Veteran's that the Veteran's claims file had been transferred to a VAMC was accurate. The Veteran filed a claim for service connection for PTSD in December 1994 and the file was transferred to facilitate an examination in connection with that claim. There is no indication this transfer of the file was an attempt to hide any case activity regarding the Veteran's claim for service connection for a heart condition. The evidence is against a finding that a NOD was received by VA in response to the October 1994 rating decision. The Board is sympathetic to the Veteran's contentions that he either relied on his then-representative to submit the NOD or received incorrect information from VA employees. Unfortunately, VA is not liable for the Veteran's reliance on said erroneous information dispensed by VA employees. See Harvey v. Brown, 6 Vet. App. 416 (1994). Inaccurate advice does not create any legal right to benefits where such benefits are otherwise precluded. See Shields v. Brown, 8 Vet. App. 346 (1995). Further, erroneous advice given by a government employee cannot be used to estop the government from denying benefits. See McTighe v. Brown, 7 Vet. App. 29 (1994). There is no document containing specific disagreement with the October 1994 rating decision associated with the record and even in September 1998 when the Veteran filed a claim to reopen, there was no suggestion that he was still expecting a determination on an appeal that remained pending. The Board further finds that the presumption of regularity attaches in this case. It is presumed that government officials have properly discharged their official duties. Clear evidence to the contrary is required to rebut this presumption. See Romero v. Tran, 33 Vet. App. 252 (2021); Mindenhall v. Brown, 7 Vet. App. 271 (1994); Ashley v. Derwinski, 2 Vet. App. 307 (1992). A claimant's mere statement that he submitted a document to VA is insufficient to rebut the presumption. Fithian v. Shinseki, 24 Vet. App. 146, 151 (2010). Relevant to this case, when the RO receives a NOD staff would have been required to update VA records showing the NOD and then process the NOD, eventually granting the claim or issuing a statement of the case if it was determined the claim should be denied. Absent clear evidence to the contrary, the Board presumes this would have happened if a NOD had been received. As to the Veteran's assertion that he gave the RO a NOD and then returned later to be told that no NOD had been filed, this statement alone is insufficient to rebut the presumption. Fithian, 24 Vet. App. at 151. Although the Veteran wrote to the Secretary in late 1994, there is no indication that he specifically challenged the October 1994 rating decision in the letter or that VA's response to his letter was meant to mislead or "hide" any actions taken by VA. The Board finds that the Veteran's allegations in that regard do not constitute clear evidence that rebuts the presumption of regularity. The presumption would suggest that if the Veteran had, in fact, submitted a NOD with the October 1994 rating decision or voiced disagreement with that rating decision in the letter to Secretary, such disagreement would have been processed in the normal course of business as every other disagreement was handled in the long procedural history of this claim. In fact, RO personnel did take action on the letter to the Secretary and flagged it as pertaining to evidence. This not clear evidence that the RO disregarded the Veteran's letter. In addition, it is evidence contrary to such an assertion as it suggests the letter was processed and pertained to records rather than disagreement with a rating action. The Board acknowledges that the Veteran's December 10, 1994 correspondence to the Secretary does not appear to be in the claim file; however, the Board finds that this alone is not enough to rebut the presumption of regularity given other evidence of record, to include the tracking of that correspondence, the February 1995 response to that correspondence, and that every other disagreement the Veteran voiced was acted upon in the long procedural history of this claim. The Veteran may have complained generally regarding the location of his records and frustration regarding his challenges in obtaining service connection for a heart condition, but there remains no clear evidence in the file that the VA received and disregarded a NOD to the October 1994 rating decision that required response with a statement of the case. The Board concludes that the presumption of regularity has not been rebutted and finds that an appeal of the October 1994 rating decision was not initiated and that decision became final. 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1994). In addition to being procedurally final in the absence of specific disagreement, new and material evidence was not received within the one-year appellate period. The Board acknowledges the Veteran's frustration with the history of this claim; however, having determined that the presumption of regularity has not been rebutted and that the October 1994 rating decision is final, the effective date for the grant of service connection is dictated by the rules governing effective dates for reopened claims and can be no earlier than the Veteran's September 14, 1998, statement seeking service connection for a heart disorder based on aggravation. M.E. LARKIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Robert J. Burriesci, 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.