Citation Nr: 21011813 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 14-26 190 DATE: March 2, 2021 ORDER Entitlement to an effective date earlier than August 9, 2006 for the grant of service connection for residuals of status post external meatotomy and prostatitis, to include as due to clear and unmistakable error (CUE) in a December 1990 rating decision that initially denied entitlement to service connection for the disability, is denied. Entitlement to an effective date earlier than August 9, 2006 for the grant of service connection for degenerative disc disease (DDD) of the lumbar spine, to include as due to CUE in the December 1990 rating decision that initially denied entitlement to service connection for the disability, is denied. FINDINGS OF FACT 1. The claim of entitlement to service connection for a surgical procedure for penis/kidney related problems was not received within one year of the Veteran’s discharge from service or until June 12, 1990. 2. The claim of entitlement to service connection for a back disability was not received within one year of the Veteran’s discharge from service or until June 12, 1990. 3. In a December 1990 rating decision, the RO denied entitlement to service connection for a surgical procedure for penis/kidney related problems. 4. The December 1990 rating decision was reasonably supported by evidence then of record, and the record does not demonstrate that the RO incorrectly applied the statutory or regulatory provisions extant at that time, or that the correct facts, as known at that time, were not considered. 5. In a December 1990 rating decision, the RO denied entitlement to service connection for a back disability. 6. The December 1990 rating decision was reasonably supported by evidence then of record, and the record does not demonstrate that the RO incorrectly applied the statutory or regulatory provisions extant at that time, or that the correct facts, as known at that time, were not considered. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than August 9, 2006 for the grant of service connection for residuals of status post external meatotomy and prostatitis have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2019). 2. The December 1990 rating decision denying entitlement to service connection for a surgical procedure for penis/kidney related problems was not clearly and unmistakably erroneous. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 3.105 (2019). 3. The criteria for an effective date earlier than August 9, 2006 for the grant of service connection for DDD of the lumbar spine have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2019). 4. The December 1990 rating decision denying entitlement to service connection for a back disability was not clearly and unmistakably erroneous. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 3.105 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1965 to August 1969. In October 2018, the Veteran testified before the undersigned Veterans Law Judge at a Board hearing. A transcript of the hearing is of record. In May 2019, the Board remanded the case for further development by the originating agency. The case has been returned to the Board for further appellate action. Earlier Effective Date Generally, the effective date of a rating and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase is 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 (a) (2012); 38 C.F.R. § 3.400 (2019). A specific claim in the form prescribed by VA must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101 (a) (2012); 38 C.F.R. § 3.151 (a) (2019). 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) (2019). A claim is defined broadly to include 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) (2019); Brannon v. West, 12 Vet. App. 32 (1998); Servello v. Derwinski, 3 Vet. App. 196 (1992). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a Veteran or representative, may be considered an informal claim. 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 from the date it was sent to the Veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (2019). A report of examination or hospitalization which meets certain requirements of will be accepted as an informal claim for benefits if the report relates to a disability which may establish entitlement. Once a formal claim for pension or compensation has been allowed or a formal claim for compensation has been disallowed for the reason that the service-connected disability is not compensable in degree, receipt of a report of examination or hospitalization by VA or the uniformed services will be accepted as an informal claim for benefits. The date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. Those provisions apply only when the reports relate to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of the examination, treatment or hospital admission. 38 C.F.R. § 3.157 (2019). Evidence from a private physician or lay man will also be accepted as an informal claim for increased benefits, effective from the date received by VA. 38 C.F.R. § 3.157 (b)(2). Medical records cannot constitute an initial claim for service connection; rather there must be a record showing some intent by the claimant to apply for the benefit. Criswell v. Nicholson, 20 Vet. App. 501 (2006); Brannon v. West, 12 Vet. App. 32, 35 (1998). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2019).   1. An effective date earlier than August 9, 2006 for the grant of service connection for residuals of status post external meatotomy and prostatitis 2. An effective date earlier than August 9, 2006 for the grant of service connection for DDD of the lumbar spine On June 12, 1990, VA received the Veteran's initial claims for service connection for a surgical procedure of the penis/kidney related problems and a back disability. The claims were denied in a December 1990 rating decision. The Veteran did not file an appeal and the decision became final. In August 2006, the Veteran filed a claim for service connection for a urological disorder (urinary tract infection) and a back disability (lower back injury). The RO denied the claims in October 2006 and February 2009. However, in a September 2010 rating decision, in accordance with an August 2010 decision by the Board, the RO reopened and granted the claims for service connection for residuals of status post external meatotomy and prostatitis and DDD of the lumbar spine, both effective August 9, 2006, the date of the Veteran’s petition to reopen. The applicable law and regulations provide that unless a claim is filed within one year of service, the effective date is the latter of the date entitlement arose or the claim was received. 38 U.S.C. § 5110 (a), (b)(1) (2012); 38 C.F.R. § 3.400 (b)(2) (2019). The Board has reviewed the record, but following the December 1990 rating action there is no document of record prior to August 9, 2006, that can be construed to constitute a claim, formal or informal, for service connection for a urological disorder or a back disability. The Veteran asserts that entitlement to service connection for both claimed disabilities arose prior to the date of claim. However, the law is clear that where the claim is filed more than a year following discharge from service, the effective date is the later of the date of claim or the date entitlement arose. Here, the date of claim controls the effective date. As the Veteran, following the December 1990 rating decision, did not submit a claim for service connection for residuals of status post external meatotomy and prostatitis or DDD of the lumbar spine prior to August 9, 2006, and as there is no prior communication in the record that could be considered an informal claim for VA compensation for residuals of status post external meatotomy and prostatitis and DDD of the lumbar spine, that is the earliest possible effective date. 38 U.S.C. § 5110 (a) (2012); 38 C.F.R. § 3.400 (2019). Therefore, the Board finds that there is no basis upon which to grant an effective date earlier than August 9, 2006, for entitlement to service connection for residuals of status post external meatotomy and prostatitis and DDD of the lumbar spine. The Board finds that the preponderance of the evidence is against the claims for an earlier effective date and those claims must be denied. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Clear and Unmistakable Error (CUE) An unappealed rating decision is final, and may not be revised based on the evidence of record at the time of the decision unless it is shown that the decision involved CUE. 38 U.S.C. § 7105 (2012). Where CUE is found in a prior RO decision, the prior decision will be reversed or revised. For the purpose of authorizing benefits, reversal or revision of the prior decision on the grounds of CUE has the same effect as if the correct decision had been made on the date of the prior decision. 38 U.S.C. § 5109A (2012); 38 C.F.R. § 3.105 (a) (2018). CUE is a very specific and rare kind of error; it is the kind of error, of fact or 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. 38 C.F.R. § 20.1404 (2019). The mere misinterpretation of facts or failure to fulfill the duty to assist does not constitute CUE. See Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991); Crippen v. Brown, 9 Vet. App. 412, 424 (1996); see also Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (holding that a valid CUE claim requires that the veteran assert more than a disagreement as to how the facts were weighed or evaluated). To find CUE, the correct facts, as they were known at the time, must not have been before the adjudicator (a simple disagreement as to how the facts were weighed or evaluated will not suffice) or the law in effect at that time was incorrectly applied; the error must be undebatable and of a sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and the determination of CUE must be based on the record and law that existed at the time of the prior adjudication. Allegations that previous adjudications have improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. See 38 U.S.C. § 5109A; 38 C.F.R. § 3.105 (a); Pierce v. Principi, 240 F.3d 1348 (Fed. Cir. 2001); Damrel, 6 Vet. App. 242; Fugo v. Brown, 6 Vet. App. 40 (1993). In addition, in order for a claimant to successfully establish a valid claim of CUE in a final decision, the claimant must articulate with some degree of specificity what the alleged error is, and, unless the alleged error is the kind of error which, if true, would be clearly and unmistakably erroneous on its face, the claimant must provide persuasive reasons explaining why the result of the final rating decision would have been manifestly different but for the alleged error. Luallen v. Brown, 8 Vet. App. 92, 94 (1995); Fugo, 6 Vet. App. 40. 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). 1. Whether there was CUE in the December 1990 rating decision that denied entitlement to service connection for a surgical procedure for penis/kidney related problems 2. Whether there was CUE in the December 1990 rating decision that denied entitlement to service connection for a back disability The December 1990 rating decision was not clearly and unmistakably erroneous with regard to the claim for service connection for a surgical procedure for penis/kidney related problems or the claim for service connection for a back disability. The Veteran has raised several arguments as to why the December 1990 ratining decision contains CUE. He contends that because he did not have a complete copy of his service treatment records (STR) at the time of the December 1990 decision that denied his claims for service connection, he was not able to adequately appeal the decision. He claims that although he requested a copy of his STRs several times prior to his August 2006 petition to reopen the claims, he was told that the records were likely lost in the St. Louis fire of June 12, 1973, and he was not able to obtain a copy of the STR until 2006. The Veteran appears to be arguing that the RO failed to fulfill its duty to assist by not providing him with a copy of his STR at the time his claim was denied in December 1990. However, as noted above, failure to fulfill the duty to assist does not constitute CUE. Furthermore, the Board notes that the Veteran’s STR were of record and reviewed at the time of the December 1990 rating decision, and there is no evidence of record showing that the Veteran requested his STR and was told that they were not available. In fact, the earliest evidence showing the Veteran requesting a copy of his STR is his August 2006 claim for service connection. Moreover, the STR were discussed in the December 1990 rating decision as well as the August 1990 VA examination report that was relied on to deny the Veteran’s claims. The Veteran did not file a notice of disagreement disputing the analysis of the STR made by the RO in the rating decision or the analysis of the records made by the August 1990 VA examiner. Nor did he file a notice of disagreement indicating that he was not able to dispute the findings in the rating decision or of the VA examiner because he did not have a copy of his STR. Therefore, the Board finds this portion of the Veteran’s argument unpersuasive. Again, a failure of the duty to assist, which was not even actually present in this case, is insufficient to establish CUE in the rating action. The Veteran also argues that the December 1990 rating decision contained CUE in that the RO did not consider evidence in the STR of urological and back disorders in service. The Board also finds this argument by the Veteran unpersuasive. In this regard, the correct facts, as they were known at the time, were before the RO in December 1990. With regard to the claimed back disability, the Board notes that STR show that at the time of his June 1969 separation examination, the Veteran reported recurrent back pain since entering service, which was never incapacitating, and which he never sought treatment for. STR do not contain evidence of a back injury or a back disability during active duty or at discharge. The RO noted the Veteran’s complaints of recurrent back pain at separation in the December 1990 rating decision. However, the RO also noted, correctly, that despite the Veteran’s complaints, no chronic back disability was diagnosed during service. Furthermore, it was not until a May 2010 Board hearing, 20 years after the December 1990 rating decision, that the Veteran reported that he sustained an injury to his back in August 1968 during active duty in Germany. Therefore, the RO, in 1990, could not have considered this report from the Veteran as evidence of a back injury in service. As such, the Board finds that the Veteran’s argument that the RO did not consider evidence of a back disorder in service when it denied his claim in December 1990 to be unfounded, as there was no evidence of a back disorder in service of record at that time. The Board notes that in the August 2010 decision, the Board found that the Veteran sustained an in-service back injury, based on his credible statements during his May 2010 Board hearing, as well as STR documenting complaints of recurrent back pain. Again, however, this finding was based in part on the Veteran’s statements during his Board hearing in May 2010, evidence that was not available to the RO at the time of the December 1990 rating decision. It is not possible to determine what the RO would have decided had this evidence been available in December 1990. Furthermore, the Board notes that even if it was determined in December 1990 that the Veteran had sustained an in-service back injury, as there was no evidence at that time of a nexus between an in-service injury and his low back strain diagnosed during the August 1990 VA examination, his claim would have still been denied. A finding of an in-service injury is just one part of the analysis for a claim of entitlement to service connection. As such, the Board finds that any error made in the December 1990 rating decision as to the whether the Veteran in fact had an in-service back injury, was not so egregious that had it not been made, it would have manifestly changed the outcome of the decision. As it is not absolutely clear that a different result would have ensued, the claimed error cannot be deemed clear and unmistakable. 38 C.F.R. § 20.1403(c); see Kinnaman v. Derwinski, 4 Vet. App. 20, 26 (1993). With regard to the claimed urological disorder, STR show complaints of left groin pain in August 1968 and September 1968. The Veteran was diagnosed with a pulled muscle and prescribed whirlpool treatment. An X-ray report at that time revealed no evidence of a renal or urinary disorder. A cytoscopy report dated in June 1969 indicated that a urine specimen revealed microscopic hematuria, as well as a bulbous urethra and a prostatic urethra. Further, urinary bleeding was documented. A small external meatus was documented and an external meatotomy was subsequently performed. Moreover, chronic, asymptomatic prostatitis as well as mild prostatic urethritis were diagnosed. A pyelogram report indicated that the Veteran's kidneys were normal, and no radiological evidence of renal hematuria was noted. STR also show the Veteran also complained of left groin pain in July 1969. A genitourinary evaluation, including a cytoscopy, failed to detect any cause for renal microscopic hematuria. A urinalysis conducted at that time revealed three out of five red blood cell count per high power field. No casts were detected. The treating physician concluded that the posterior urethra was the probable source of the red blood cell count and no further treatment was indicated. The Veteran noted complaints of frequent or painful urination on his June 1969 service separation examination. Further, the examination report documents complaints of hematuria and dysuria in August 1968, which was diagnosed as a muscle strain following a normal intravenous pyelogram, and no recurrence was noted. However, the Veteran was diagnosed with mild microscopic hematuria. In the December 1990 rating decision, the RO noted the Veteran’s treatment in service for a urological disorder, but nonetheless, found that the Veteran’s urological problems in service resolved prior to his discharge, and concluded that the urological disorder diagnosed on VA examination in August 1990, status post, operative procedure through the penis for relief of blockage of urinary stream by indeterminable growth with persistent moderate disability, was not related to the in-service urological treatment, more than 20 years earlier. As the RO acknowledged the Veteran’s in-service treatment for urological problems, the Veteran’s argument that the RO did not consider evidence of an in-service disability is unfounded. The Veteran does not contend and the evidence does not show that the RO’s finding that his urological disorder diagnosed at the time of the December 1990 rating decision was not related to his in-service urological problems was clearly and unmistakably erroneous. In this regard, there was no medical opinion of record at the time of the December 1990 decision that provided a nexus between a currently diagnosed urological disorder and any neurological disorder diagnosed in service. Such an opinion did not come until years later, in December 2008. It is important to reiterate that review for CUE in a prior rating decision must be based upon the record and the law that existed when that decision was made. Thus, any additional evidence received after the rating decision in question, to support the Veteran's argument, cannot form the basis for reversal or revision of the rating decision in question. As it existed, there was simply insufficient evidence in the record at the time of the 1990 denial to find that service connection was warranted for a urological disorder or a back disability. As such, there is no error in the conclusions that were reached in the previous December 1990 rating decision. For these reasons, the Board finds that the Veteran's contentions do not meet the criteria for CUE. Again, a claim of CUE requires more than a disagreement as to how the facts were weighed or evaluated. In light of the above, the Board finds that the correct facts were before the RO at the time of the December 1990 rating decision, and the statutory or regulatory provisions extant at the time were correctly applied. Thus, the claims for CUE cannot prevail, and the Veteran's claims must be denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board F. Yankey, 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.