Citation NR: 9740408 Decision Date: 12/04/97 Archive Date: 12/12/97 DOCKET NO. 92-54 531 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an effective date for service connection for residuals of excision of a herniated nucleus pulposus at the lumbosacral (L5-S1) joint, prior to May 5, 1989. 2. Entitlement to service connection for a disorder of the kidneys and the urinary tract. 3. Entitlement to service connection for ulcer disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL Appellant and his wife INTRODUCTION The veteran had active service from March 1958 until January 1960 and from November 1961 until August 1962. A decision of the Board of Veterans' Appeals (Board) in April 1986 denied service connection for a back disorder, residuals of a sprain of the left ankle, and a sinus disorder. This matter comes before the Board of Veteran's Appeals (Board) from a January 1990 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Board remanded the case in September 1992 for evidentiary development and thereafter additional claims were developed for appellate consideration. In a Board decision in August 1996 applications to reopen claims for service connection for residuals of a left ankle sprain and a sinus disorder were denied. Service connection for emphysema and hypertension was denied. Also, entitlement to benefits under 38 U.S.C.A. § 1151 for aggravation of a back disability from injuries sustained during VA examination in November 1987 and entitlement to a compensable evaluation for a left varicocele were denied. However, an application to reopen a claim for service connection for a low back disorder was granted and, upon de novo adjudication, service connection was granted. Issues of entitlement to service connection for a disorder of the kidneys, the urinary tract, and ulcer disease were remanded for further development. By a rating action of May 1997, the Board’s grant of service connection for a low back disorder was effectuated and service connection as well as a 60 percent disability rating were assigned effective May 5, 1989, date of receipt of the application to reopen that claim. An appeal was taken from the effective date assigned for service connection for that disorder. By rating action in August 1997 a total rating based on individual unemployability was granted, as was entitlement to basic eligibility for Dependents’ Educational Assistance under 38 U.S.C. Chapter 35. CONTENTIONS OF APPELLANT ON APPEAL It is contended that the evidence on file at the time of an RO denials of service connection for a low back disorder in December 1984 and March 1985 supported a grant of service connection. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1997), has reviewed and considered all of the evidence and material of record in the veteran's claims files. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that an effective date prior to May 5, 1989, for service connection for a low back disorder is not warranted. The claims for service connection for a disorder of the kidneys, the urinary tract, and ulcer disease will be addressed in the remand portion of this decision. FINDINGS OF FACTS 1. The veteran had active service from March 1958 until January 1960 and from November 1961 until August 1962. 2. An December 1984 rating action denied, in part, service connection for a back disorder and that denial was confirmed and continued by a rating action in March 1985. 3. The veteran appealed the December 1984 rating action and a decision of the Board in April 1986 confirmed the denial of service connection for a back disorder. 4. The veteran’s application to reopen the claim for service connection for a back disorder was received in April 1987 and was denied by a rating action in April 1987. The veteran was notified of that rating action by letter of the same month but no appeal was taken. 5. There was no CUE in the April 1987 denial of reopening of the claim for service connection for a back disorder. 6. The veteran’s next application to reopen the claim for service connection for a back was received on May 5, 1989, from a VA Counselor and based on that application the claim was reopened and allowed by the Board in August 1996. CONCLUSIONS OF LAW 1. The April 1986 Board decision subsumed the December 1984 and March 1985 RO denials of service connection for a back disorder. 38 C.F.R. §§ 3.105(a), 20.1104 (1996); Smith v. Brown, 35 F.3d 1516 (Fed. Cir. 1994), rev’g Smith v. Principi, 3 Vet. App. 378 (1992) (mem. decision); Duran v. Brown, 7 Vet. App. 216, 224 1994). 2. The April 1987 rating action is final and did not contain clear and unmistakable error (CUE) in failing to reopen the claim for service connection for a back disorder. 38 C.F.R. § 3.105(a) (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSION In April 1984 the RO denied, in part, service connection for a back disorder. That denial was confirmed and continued by a rating action in March 1985. The veteran appealed the April 1984 rating action and a decision of the Board in April 1986 confirmed the denial of service connection for a back disorder. The veteran applied to reopen the claim for service connection for a back disorder in April 1987, by the submission of a February 1987 statement from a private physician. Reopening was denied by a rating action in April 1987, of which the veteran was notified by letter of the same month, but no appeal was taken from that denial. The veteran again applied to reopen the claim for service connection for a back disorder by virtue of receipt of correspondence and voluminous evidence on May 5, 1989, from a VA Counselor and based on that application the claim was reopened and allowed by the Board in August 1996. Thereafter a rating action of May 1997 effectuated the grant of service connection for a low back disorder and assigned an effective date of May 5, 1989, date of receipt of the application to reopen that claim, for the grant of service connection and for a 60 percent disability rating. Analysis The revision or amendment of prior rating determinations which contain CUE derives solely from 38 C.F.R. § 3.105(a) which provides that previous determinations are final in the absence of CUE and that if there was CUE therein, the corrective action taken has the same effect as if the corrected decision had been made at the time of the decision being reversed. Russell v. Principi, 3 Vet.App. 310, 312-13 (1992). "[T]here is a presumption of validity to otherwise final decisions, and that where such decisions are collaterally attacked, and a CUE claim is undoubtedly a collateral attack, the presumption is even stronger." Fugo v. Brown, 6 Vet.App. 40, 44 (1993). For there to be CUE in a prior final rating determination, either the correct facts, as they were known at the time, were not before the RO (which requires more than a simple allegation or disagreement as to how the facts were weighed or evaluated), or the statutory or regulatory provisions extant at that time were incorrectly applied. Further, the error must appear to be undebatable so that reasonable minds could only conclude that the original decision was fatally flawed and of the sort which if it had not been made would manifestly change the outcome. Russell v. Principi, 3 Vet.App. 310, 313 (1992); Damrel v. Brown, 6 Vet.App. 242, 245 (1994); and Mason v. Brown, 8 Vet.App. 44, 51 (1995). In the August 1996 Board decision it was noted that at the July 1990 hearing (pages 6 and 7) it was alleged that there was CUE in a March 1995 rating decision. It is now alleged that there was CUE in the December 1984 rating action. The March 1995 rating action confirmed and continued a prior denial of December 1984 which was appealed to the Board and under 38 C.F.R. § 20.1104 both were subsumed in the April 1986 Board denial. 38 C.F.R. § 20.1104 provides that “[w]hen a determination of the agency of original jurisdiction is affirmed by the Board of Veterans' Appeals, such determination is subsumed by the final appellate decision.” Where an RO decision is subsumed in a BVA decision, no CUE can exist as a matter of law as to that RO decision. Morgan v. Brown, 9 Vet. App. 161 (1996) (citing Duran v. Brown, 7 Vet. App. 216 (1994); Mykles v. Brown, 7 Vet. App. 372 (1995); and Smith v. Brown, 35 F.3rd 1516, 1527 (Fed. Cir. 1994)). Where there can be no CUE as a matter of law, “the law and not the evidence is dispositive, [and] the claim should be denied or the appeal [] terminated because of the absence of legal merit or the lack of entitlement under the law.” Donovan v. Gober, 10 Vet. App. 404, 409 (1997); see also Wright v. Brown, 9 Vet. App. 300, 304 (1996) and Chisem v. Gober, No. 96-166, slip op. at 4 (U.S. Vet. App. Nov. 14, 1997). In this case, there is no allegation that the RO or the Board failed to apply, or improperly applied, the correct law and regulations as to the claim for service connection for a back disorder. Rather, the allegation of CUE is essentially factually driven. There is no allegation that the facts as they were then known were not before adjudicators. In substance, there is a broad brush allegation that the evidence on file at the time of the 1984 and 1985 denials was sufficient to support a grant of service connection. This equates with an allegation that there was not a substantial basis for the denial. An allegation that there was not a “substantial basis” for an RO’s findings is not a valid basis for a CUE claim because there is no allegation that the correct facts, as they were known at the time, were not before the adjudicator, or that the statutory or regulatory provisions extant at the time were incorrectly applied. Instead, the argument would require reevaluation of the evidence previously considered by the RO to decide if it provided a “substantial basis” for the decision, but a claim of improper weighing and evaluating of the evidence can never rise to the stringent definition of CUE. Daniels v. Gober, No. 96-510, slip op. (U.S. Vet. App. Nov. 3, 1997). However, there remains the matter of whether there was CUE in the unappealed April 1987 rating action denying reopening of the claim for service connection for a back disorder. No specific allegation of CUE is addressed as to this rating action. The only evidence received in support of the application to reopen the claim was a February 1987 statement from a private physician stating that he had treated the veteran from 1964 to 1980 and later after 1985 for, in part, a back condition. However, all contemporaneous clinical records had been destroy by hurricanes. It was felt that the back disorder prohibited gainful employment. This statement expressed no opinion as to the time of onset of the back disorder or to the etiology or causation of the back disorder. In sum, in only confirmed the existence of a back disorder since 1964, about two years after service and failed to relate such disorder to military service. “The first question is whether the appellant adequately raised his CUE claim as to a final RO decision. ‘If a claimant-appellant wishes to reasonably raise CUE there must be some degree of specificity as to what the alleged error is’. Fugo v. Brown, 6 Vet.App. 40, 43 (1993). ‘[M]erely to aver that there was CUE in a case is not sufficient to raise the issue.’ Id. at 43-44.” Crippen v. Brown, 9 Vet. App. 412, 420 (1996). In Crippen, at 420, it was held that the appellant raised a CUE claim with the requisite specificity because he argued for an earlier effective date for his award of service connection and asserted that evidence compelling such an award was in the record at the time of the RO decisions in question. Since it is alleged that there was evidence on file in 1984 and 1985 to grant service connection then, at least by inference, it must be alleged that the same was true in 1987. Thus, the veteran has adequately raised a CUE claim as to the 1987 denial to reopen the claim. As in Crippen, at 420, the 1987 rating action in this case merely held that the new evidence did not warrant a change in the prior denials, without specifically determining that there was a lack of new and material evidence for the purpose of reopening. However, “it does not matter whether a particular RO decision was or was not a merits adjudication, because the disposition of the CUE claim would ultimately turn on the same question.” Crippen, at 421. “CUE can be raised as to a final RO decision determining, under certain specified circumstances [], that new and material evidence had not been submitted to reopen a claim.” Mason v. Brown, 8 Vet. App. 44, 52-53 (1995). “[I]f an RO decision, assailed as CUE, had undebatably erred in denying the reopening of a previously and finally disallowed claim, the Board would have to decide whether, had the error not been made, the outcome after reopening -- that is, on the merits -- would have ‘manifestly’ been changed.” Mason, at 53. Hence, it does not matter whether the RO in 1987 denied reopening, or reopened and denied on the merits, because the answer to that question does not affect the validity, or lack thereof, of the CUE claim. Crippen, at 421. “[A] challenge to an RO denial of a claim to reopen clearly includes a challenge to the RO's weighing of the evidence before it at the time of the claim to reopen. [] Such a challenge generally would involve a reweighing of the facts, contrary to Russell's maxim that in order to raise a valid CUE claim ‘the claimant . . . must assert more than a disagreement as to how the facts were weighed or evaluated.’ Russell, 3 Vet.App. at 313; see also Damrel, 6 Vet.App. at 246 (asking BVA "simply . . . to reweigh the evidence" "`can never rise to the stringent definition of CUE' under 38 C.F.R. § 3.105(a)’ (quoting Fugo, 6 Vet.App. at 44)).” Crippen, at 421. A claim that certain highly probative evidence was not consider can rise to the level of a valid claim of CUE. See Crippen, at 421 (citing Russell and Mason). However, prior to the February 1990 enactment and effective date of what is now 38 U.S.C.A. § 5104(b), RO’s were not required to specify the evidence considered. Hence, Russell and Mason established a high standard for allegations that a pre- February-1990 RO decision violated regulations by failing to consider all the evidence of record, such as to be able to determine and find that an RO had actually denied the very existence of highly probative evidence. Crippen, at 421. As applied to this case, there is no allegation that any specific piece of evidence, or any evidence at all, was not considered by the RO. Rather, there is no more than a broad brush allegation that the evidence on file supported a grant of service connection. Such an allegation equates with an assertion that there was no substantial basis for the RO determination. As indicated, such an allegation is not a valid basis for a claim of CUE. Accordingly, the Board finds that there was no CUE in the 1987 rating action in either denying reopening, or reopening and denying on the merits. Lastly, in view of the standard that error must be undebatable and about which reasonable minds can not differ, the "benefit of the doubt" rule of 38 U.S.C.A. § 5107(b) can never be applicable; an error either undebatably exists or there was no error within the meaning of 38 C.F.R. § 3.105(a). Russell, supra at 314. In sum, there can be no earlier effective date for service connection for a back disorder because of the finality of prior adjudications and the absence of CUE therein. ORDER An effective date prior to May 5, 1989, for service connection for residuals of excision of a herniated nucleus pulposus at L5-S1 joint is denied. REMAND In a remand portion of the August 1996 Board decision VA examinations were requested because it was claimed that a disorder of the kidneys, urinary tract infection, and ulcer disease, were due to or the result of Ibuprofen taken for the veteran’s now service-connected low back disorder. On VA gastrointestinal examination in December 1996 the veteran reported that in 1988 a VA physician had stated that his stomach problems were due to taking Ibuprofen (which he reported in a September 1996 letter he had been prescribed during VA hospitalization in 1985) and he was given Carafate. The discharge summary of VA hospitalization in July 1988 reflects that Carafate was prescribed. While the diagnosis on VA gastrointestinal examination in 1996 was hiatal hernia with gastroesophageal reflux, no opinion was rendered, as requested, as to the etiology of the veteran’s gastrointestinal disability and a possible relationship, if any, to Ibuprofen (noting that ulcer disease was not diagnosed). Likewise, on VA genitourinary examination the diagnosis was a history compatible with recurrent urinary tract infections without any evidence of disease. It was opined that there was no connection between the veteran’s back disorder, and surgery therefor, and his reported history of recurrent urinary tract infections. However, no opinion was rendered, as requested, as to the etiology of the veteran’s genitourinary disability and a possible relationship to Ibuprofen. Also, it was noted that a renal ultrasound showed a normal bladder. A private intravenous pyelogram (IVP) in 1971 was normal; however, a VA IVP with tomogram in November 1996 found elevation of the bladder, probably secondary to prostatic enlargement, and a December 1996 renal ultrasound reportedly found a collapsed bladder. Similarly, a VA abdominal ultrasound study in November 1990 found a small, simple cyst in the left kidney. Thus, diagnostic clarification is in order. Also, it does not appear that the RO forwarded to the veteran for execution and return, as requested, an authorization form for obtaining records of Dr. Wessler, a urologist. Accordingly, the case is remanded for the following actions: 1. The RO should obtain the complete records of the veteran’s periods of VA hospitalizations in January 1985 and July 1988, to include any report of emergency room evaluation or admission in July 1988. 2. The RO should contact the veteran and inform him (and he is hereby informed) that he should provide more detailed information as to the date, place, and time when (as only sugggested in his September 1996 letter) any VA physician informed him that Ibuprofen could have an adverse effect upon his stomach and kidneys. The RO should then, if possible depending on the depth of information provided, attempt to obtain any such records. 3. The veteran should again be requested to execute and return the necessary authorization form to obtain the records of Dr. Wessler which, if obtained, should be associated with the claims file. 4. The veteran should be afforded comprehensive genitourinary and gastrointestinal examinations to determine whether any disability of the veteran's kidneys, urinary tract, or any ulcer disease is causally or etiologically related to Ibuprofen taken for service-connected low back disability, to include either the initial inception of disease or aggravation of disease by Ibuprofen. Detailed reasons and bases for all diagnoses and opinions reached must be set forth. Clarification should specifically be requested as to whether the veteran now has any disability of the kidneys (to include any cyst) or bladder (to include collapse of the bladder) or actual gastric or peptic ulcer disease. All of the veteran's subjective complaints and objective findings should be legibly recorded in detail. All indicated tests and studies should be conducted. The claims folder must be made available for review by the examiner(s) prior to the examination to facilitate study of the case. 5. Following completion of the above actions, the RO must review the claims folder and ensure that all of the foregoing development have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the examination report. If the examination report does not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinions requested, the report must be returned for corrective action. 38 C.F.R. § 4.2 (1995) ("if the [examination] report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes."). Green v. Derwinski, 1 Vet.App. 121, 124 (1991); Abernathy v. Principi, 3 Vet.App. 461, 464 (1992); and Ardison v. Brown, 6 Vet.App. 405, 407 (1994). 6. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Veterans Appeals for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans’ Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1997) (Historical and Statutory Notes). In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. This is to put the veteran on notice, and in keeping with the VA’s duty to assist, as announced in Connolly v. Derwinski, 1 Vet.App. 566, 569 (1991), that at least in part the purpose of the examination requested in this remand is to obtain information or evidence (or both) which may be dispositive of the claim. Therefore, the veteran is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (1996) failure to cooperate by attending the requested VA examination may result in denial of the claims. While this case is in remand status, the veteran and representative are free to submit additional evidence and argument on the questions at issue. Quarles v. Derwinski, 3 Vet.App. 129, 141 (1992). Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. John Fussell Acting Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1997), a decision of the Board of Veterans’ Appeals granting less than the (CONTINUED ON NEXT PAGE) complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans’ Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans’ Appeals. Appellate rights do not attach to those issues addressed in the remand portion of the Board’s decision, because a remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1996). - 2 -