Citation Nr: A21006651 Decision Date: 03/25/21 Archive Date: 03/25/21 DOCKET NO. 191015-37872 DATE: March 25, 2021 ORDER Clear and unmistakable error having not been committed in the February 1968 rating decision denying entitlement to service connection for headaches, the rating will not be revised, and the appeal is denied. Entitlement to an effective date prior to August 26, 2011, for the grant of service connection for headaches is denied. FINDINGS OF FACT 1. The Veteran’s claim for service connection of headaches was denied in an unappealed February 1968 rating decision where the Agency of Original Jurisdiction (AOJ) determined that the Veteran did not have a current diagnosed disability. 2. There was a plausible basis in the record for the February 1968 rating decision of the evidence then of record, as well as existing legal authority, and it did not contain undebatable error that would have manifestly changed the outcome. 3. Following the February 1968 denial, August 26, 2011, is the earliest date that VA next received a communication from the Veteran indicating intent to apply for service-connected benefits for headaches. CONCLUSIONS OF LAW 1. The criteria for revision of the February 1968 rating decision, which denied service connection for headaches, based on CUE, have not been met. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105. 2. The RO’s February 1968 rating decision denying the Veteran’s claim of entitlement to service connection for headaches is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 3. The requirements for an effective date prior to August 26, 2011, for the grant of service connection for headaches have not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.1, 3.102, 3.155, 3.156, 3.159, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1964 to May 1967. In June 2016, the Board referred the CUE claim on appeal, and remanded the earlier effective date claim pending adjudication of the CUE matter. Rating decisions were issued under the legacy system in August 2013 and August 2017. In May 2018, the Veteran opted into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a Rapid Appeals Modernization Program (RAMP) election form and selecting the higher-level review (HLR) lane. The agency of original jurisdiction (AOJ) issued a RAMP HLR decision in November 2018, which is the decision on appeal. In the October 2019 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the RAMP opt-in. 38 C.F.R. § 20.301. 1. Clear and unmistakable error having not been committed in the February 1968 rating decision denying entitlement to service connection for headaches, the rating will not be revised, and the appeal is denied. A February 1968 rating decision denied entitlement to service connection for headaches, finding that the Veteran did not have a current disability at that time. The Veteran was notified of the decision and did not appeal it; therefore, the decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Once a rating decision becomes final, a claimant may attempt to overcome its finality be either (1) requesting a revision of the decision based on clear and unmistakable evidence (CUE) or (2) by filing a claim to reopen based upon new and material evidence. Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002). By way of background, in an August 2013 rating decision, the AOJ reopened the claim and granted it. It assigned August 26, 2011, as the effective date of the grant because the effective date for an award based on the submission of new and material evidence can be no earlier than the date of receipt of such evidence. Thus, the Veteran now asserts that the February 1968 rating decision ought to be revised based on CUE. 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. 38 C.F.R. § 20.1403(a). To establish CUE in a final decision, a claimant must show that (1) either the facts known at the time were not before the adjudicator or that the law then in effect was incorrectly applied, (2) the error occurred based on the record as it existed at the time, and (3) had the error not been made, the outcome of the decision would have been manifestly different. Stallworth v. Nicholson, 20 Vet. App. 482, 487 (2006); see also Willsey v. Peake, 535 F.3d 1368 (Fed. Cir. 2008). A claimant’s burden is demanding as he or she must show that the alleged error is undebatable such that reasonably minds could only conclude that the original decision was fatally flawed at the time it was made. Review of a request for revision based on CUE is based on the record and law that existed at the time of the decision in question. Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). The Board notes that VA’s failure to comply with the duty to assist cannot constitute CUE. See 38 C.F.R. § 20.1403(d)(2); see also Cook v. Principi, 318 F.3d 1334, 1344-45 (Fed. Cir. 2002). Likewise, an allegation that the adjudicator improperly weighed or evaluated evidence cannot constitute CUE. See 38 C.F.R. § 20.1403(d)(3); see also May v. Nicholson, 19 Vet. App. 310, 313 (2005). Rather, under the heightened pleading requirements set forth in Fugo v. Brown, 6 Vet. App. 40 (1993), an alleged CUE must be the kind of error … that if true, would be CUE on its face. A mere disagreement with how the facts were evaluated does not constitute an allegation which is adequate to raise a CUE claim. Damrel v. Brown, 6 Vet. App. 242, 246 (1994). Further, the benefit of the doubt provisions of 38 U.S.C. § 5107(b) are inapplicable in CUE. See 38 C.F.R. § 20.1411(a). In fact, the moving party bears the burden of presenting specific allegations of error that would amount to CUE. Thus, for a moving party to make a successful CUE showing is an extremely difficult burden. The Veteran makes several separate assertions of CUE in the February 1968 rating decision. He argues that he was denied due process because VA failed to “consider” medical evidence in the service treatment records, including November 1964 hospitalization records relating to meningitis. He asserts that had VA considered this evidence in, it would have granted service connection for headaches in the February 1968 rating. The Veteran has also stated that VA committed error because he was never notified of the scheduling of a January 1968 VA examination, implying that if the examination had been conducted then the claim would have been granted. The Board finds that none of these assertions constitutes CUE and, therefore, his claim must be denied. Rather, although characterized as a due process error or that the RO failed to consider evidence, his arguments merely amount to a disagreement with the way the RO considered the evidence. The fact of the matter is, the Veteran’s service treatment records were of record at the time of the February 1978 rating decision, they were considered, and the RO denied the claim notwithstanding this evidence. The Veteran may disagree with how his service treatment records were weighed, but that is not equivalent with CUE. Damrel v. Brown, 6 Vet. App. 242, 246 (1994) (holding a mere disagreement with the way evidence was evaluated is not CUE). With regard to the Veteran’s argument regarding the scheduling of a January 1968 examination, VA’s failure to comply with the duty to assist cannot constitute CUE. See 38 C.F.R. § 20.1403(d)(2); see also Cook v. Principi, 318 F.3d 1334, 1344-45 (Fed. Cir. 2002). To establish service connection there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In short, there was no CUE in the February 1968 rating decision because there was a plausible basis for the AOJ’s determination that headaches had not been diagnosed. Moreover, the Veteran’s assertions amount to disagreement as to how the facts were weighed, and his claim that VA failed to notify him of the January 1968 VA examination is an assertion of a duty to assist error. As the Veteran has noted, he was hospitalized in November 1964 for meningitis. Records of this treatment document headaches. See e.g. September 1965 report of bad headaches for 7 to 8 months, 2 to 3 times per week. However, the Veteran’s separation examination was normal in all spheres, and while the Veteran reported a history of headaches, the separation examiner noted that the headaches had resolved 6 months prior without sequelae and were cured. The Veteran filed his initial claim in August 1967 and VA scheduled him for a January 1968 examination to address the claim. However, the Veteran failed to report and never requested that the examination be rescheduled. Thus, when the AOJ adjudicated the claim in February 1968 there was at least contradictory evidence as to whether the Veteran had a diagnosis of headaches. The Veteran’s service records reflect reports of headaches following a November 1964 meningitis infection, but the separation examination indicates that they had resolved without sequelae. Thus, the AOJ’s denial concluding that the Veteran did not have a current diagnosis of headaches at the time he filed his claim in August 1967 had a plausible basis in the record and cannot be said to be CUE given the evidence of record at that time, regardless of whether the AOJ specifically addressed any evidence in the February 1968 rating. “Silence in a final RO decision made before February 1990 cannot be taken as showing a failure to consider evidence of record.” Eddy v. Brown, 9 Vet. App. 52, 58 (1996). Rather, the Veteran’s arguments amount to disagreement with how the facts were weighed at the time of the February 1968 rating decision believing his service treatment records should have carried more weight. A disagreement as to how facts are weighed or evaluated is not a basis for finding CUE. 38 C.F.R. § 20.1403(d)(3); see also May v. Nicholson, 19 Vet. App. 310, 313 (2005) (holding that a claimant must assert more than a disagreement as to how facts were weighed or evaluated for there to be a valid claim of clear and unmistakable error). Likewise, the Veteran’s assertion that VA erred in its duty to assist in allegedly failing to provide notice of the January 1968 VA examination cannot constitute CUE. A duty to assist error cannot constitute CUE. See Szemraj v. Principi, 357 F.3d 1370 (Fed. Cir. 2004) (holding that “the failure to assist in developing the evidentiary record cannot constitute CUE”). Accordingly, revision of the February 1968 rating decision based on CUE must be denied. 2. Entitlement to an effective date prior to August 26, 2011, for the grant of service connection for headaches is denied. The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim for service connection “shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefor.” 38 U.S.C. § 5110(a). The effective date of an evaluation and award of compensation based on an original claim, a claim reopened after 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. An effective date from the day following the date of separation from service is authorized only if the claim is received within one year of separation from service. 38 C.F.R. § 3.400(b)(2). A specific claim in the form prescribed by the Secretary of VA must be filed for benefits to be paid to any individual under the laws administered by the VA. 38 U.S.C. § 5101(a). 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); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). VA amended its adjudication 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 amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the claim in this case was filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015, will be applied. Any communication indicating an intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a); Servello, 3 Vet. App. at 199 (holding that 38 C.F.R. § 3.155(a) does not contain the word “specifically,” and that making such precision a prerequisite to acceptance of a communication as an informal claim would contravene the Court’s precedents and public policies underlying the statutory scheme). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). 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 claimant, it will be considered filed as of the date of receipt of the informal claim. An application is defined as 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); see also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999), (an expressed intent to claim benefits must be in writing in order to constitute an informal claim; an oral inquiry does not suffice). With regard to the terms “application” or “claim,” the Board notes that once a formal claim for compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, a report of examination or hospitalization by VA or the uniformed services can 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. These provisions apply only when such reports relate to examination or treatment of a disability for which service connection has been previously established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment, or hospital examination. 38 C.F.R. § 3.157(b)(1); see also 38 C.F.R. § 3.155(a). Title 38 C.F.R. § 3.155(c) provides that when a claim has been filed which meets the requirements of 38 C.F.R. § 3.151 or 38 C.F.R. § 3.152, an informal request for increase or reopening will be accepted as a claim. Case law provides that, 38 C.F.R. § 3.157 only applies to a defined group of claims. See Sears v. Principi, 16 Vet. App. 244, 249 (2002) (section 3.157 applies to a defined group of claims, i.e., as to disability compensation, those claims for which a report of a medical examination or hospitalization is accepted as an informal claim for an increase of a service connected rating where service connection has already been established). VA medical records cannot be accepted as informal claims for disabilities where service connection has not been established. The mere presence of medical evidence does not establish intent on the part of the veteran to seek service connection for a condition. See Brannon v. West, 12 Vet. App. 32, 35 (1998); Lalonde v. West, 12 Vet. App. 377, 382 (1999) (where appellant had not been granted service connection, mere receipt of medical records could not be construed as informal claim). Merely seeking treatment, does not establish a claim, to include an informal claim, for service connection. Further, the mere presence of a disability does not establish an intent on the part of the Veteran to seek service connection for that condition. See KL v. Brown, 5 Vet. App. 205, 208 (1993); Crawford v. Brown, 5 Vet. App. 33, 35 (1995). The essential requirements of any claim, whether formal or informal, are: (1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing. A substantially complete application is defined in part as one that identifies the benefit claimed and any medical conditions on which it is based. See Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see also Shea v. Wilkie, 926 F.2d 1362, 1367 (Fed. Cir. 2019). Where a claimant has referred to specific medical records and those records contain a “reasonably ascertainable diagnosis of a disability,” an informal claim for that disability has been raised. Id at 1370. Developing a claim to its optimum requires that the Secretary give a sympathetic reading to a pro se veteran’s filings by “determin[ing] all potential claims raised by the evidence, applying all relevant laws and regulations, regardless of whether the claim is specifically labeled as a claim for [a particular benefit].” Roberson v. Principi, 251 F.3d 1378, 1384 (Fed.Cir.2001); see also Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed.Cir.2004). The “sympathetic reading” requirement only requires the Board to consider claims “reasonably” raised by the evidence. Brokowski v. Shinseki, 23 Vet. App. at 79, 88 (2009). “VA is not required to anticipate a claim for benefits for disabilities that have not been identified in the record by medical professionals or by competent lay evidence at the time that a claimant files a claim or during the claim’s development.” Id. In claims for VA benefits, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As noted above, the Veteran’s claim for service connection of headaches was denied in a February 1968 rating decision, which he did not appeal. As such, that rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The Board notes that VA received a communication from the Veteran on March 31, 1986, in which he stated “[c]onsider this a request to reopen my service-connected claim.” VA treated this communication as a claim for an increased evaluation of the service-connected meningitis residuals. In an April 1986 letter the AOJ notified the Veteran that it could not proceed with the claim without further information from the Veteran. The Veteran never responded, and VA did not proceed. The March 31, 1986, communication cannot be liberally construed to constitute a claim for service connection of headaches. The Veteran did not identify any disability in the communication. Nor did he submit any evidence, argument, or information in conjunction therewith, or in response to VA’s request. At the time of the claim, there was no contemporary lay or clinical evidence of headaches, besides the headaches noted in the service treatment records. The earliest treatment for headaches appears in a May 2003 VA record, when the Veteran presented for an Agent Orange Registry exam. Thus, while the Veteran indicated an intent to seek benefits, it was not reasonably ascertainable or identifiable that the Veteran sought to reopen the claim for service connection of headaches in the March 31, 1986, communication. (Continued on the next page)   In this case, the evidence shows that the Veteran’s request to reopen his claim of service connection for headaches was received by VA on August 26, 2011, but no earlier. After the February 1968 denial VA did not receive a claim to reopen until August 26, 2011. Obviously, the claim was received well after the Veteran’s separation from service. The February 1968 denial became final, and the claim of entitlement to service connection for headaches was reopened pursuant to the claim received by VA in the August 26, 2011, communication. Accordingly, the date of the claim to reopen is the earliest effective date that can possibly be assigned. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Accordingly, there is no legal basis for an effective date earlier than August 26, 2011, for the award of service connection for headaches and the claim must be denied Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joseph R. Keselyak, 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.