BVA9507630 DOCKET NO. 93-16 943 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to secondary service connection for a stomach ulcer. 2. Whether a November 1969 rating decision contained clear and unmistakable error. REPRESENTATION Appellant represented by: Marine Corps League WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. B. Weiss, Associate Counsel INTRODUCTION The veteran had active military service from August 1961 to September 1969. On January 19, 1995, the Board received a motion to advance the instant case on its docket. On February 15, 1995, additional evidence in support of the motion was received. On March 29, 1995, the motion was granted. In his notice of disagreement, the veteran claimed service connection for post-traumatic stress disorder and "hearing," issues which are not developed for appellate review. They are not inextricably intertwined with the instant appeal, and are referred to the agency of original jurisdiction for initial adjudication. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends in his notice of disagreement that he has a duodenal ulcer secondary to medication for his service-connected cervical spine disability. He further contends that a 1969 rating decision clearly and unmistakably erred, in not granting service connection for that cervical spine disability, that is, chronic cervical spine syndrome manifested by neck pain, headaches, radicular symptoms in the upper extremities, with herniated nucleus pulposus at C5-6 and C6-7, with cervical spondylosis and demonstrable deformity of vertebral body (hereinafter cervical spine disability.) In an October 1992 statement, relying on a United States Court of Veterans Appeals (Court) case, Akles v. Derwinski, 1 Vet.App. 118 (1991), the veteran claimed that the regional office (RO) in 1969 should have considered, and, thus, then granted, service connection for "all subordinate benefits" he was entitled to, even though not specifically claimed. The veteran further asserted that if he had been afforded a Department of Veterans Affairs (VA) examination in 1969, then the cervical spine disability would have been service-connected. The veteran argued at his July 1993 personal hearing that photographs of himself, submitted in January 1992, but taken before the 1969 rating decision, prove that if he had been afforded a VA examination in 1969, then a cervical muscle disability would have been service- connected. The representative argued that clear and unmistakable error had occurred in 1970 when the RO failed to notify the veteran of a confirmed and continued rating decision. (transcript of hearing at page 6 or t. 6.) The veteran has submitted portions of the 1987 Code of Federal Regulations in support of the clear and unmistakable error claim. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. 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 there was no clear and unmistakable error in the November 1969 rating decision. For the reasons and bases hereinafter set forth, it is the decision of the Board that the preponderance of the evidence is not against the grant of service connection for residuals of a duodenal ulcer. FINDINGS OF FACT 1. The November 1969 rating decision became final, and contained no obvious, undebatable error of fact or law, based on the evidence and applicable regulations at that time, which, if corrected, would have resulted in the allowance of service connection for the veteran's cervical spine disability. 2. Residuals of duodenal ulcer cannot be disassociated from the effects of medication for the service-connected cervical spine disability. CONCLUSIONS OF LAW 1. There was no clear and unmistakable error in the November 1969 rating decision, and the rating decision remains final. 38 U.S.C.A. §§ 5107, 7105 (West 1991); 38 C.F.R. § 3.105 (1994). 2. Residuals of duodenal ulcer are proximately due to or the result of the service-connected cervical spine disability. 38 U.S.C.A. §§ 5107 (West 1991); 38 C.F.R. § 3.310 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board notes that the provisions of 38 U.S.C.A. § 5107 have been met, in that the claims are well grounded and adequately developed. I. CLEAR AND UNMISTAKABLE ERROR Previous determinations which are final and binding, including decisions of service connection, will be accepted as correct in the absence of clear and unmistakable error. 38 C.F.R. § 3.105(a). When a claim of clear and unmistakable error (CUE) is stated, [i]t must always be remembered that 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. 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, ipso facto, clear and unmistakable. Fugo v. Brown, 6 Vet.App. 40, 43-44 (1993); en banc review denied, February 2, 1994. (emphasis in original) (citation omitted). In the Fugo case, the Court initially noted that "there is a presumption of validity to otherwise final decisions, and where such decisions are collaterally attacked, and a CUE claim is undoubtedly a collateral attack, the presumption is even stronger. " Fugo, 6 Vet.App. at 44 (citations omitted.) Further, "it is difficult to see how either failure in "duty to assist" or failure to give reasons or bases could ever be CUE; but if so claimed, the claimant must state why it is CUE and present a compelling case that the result would have been manifestly different." Fugo v. Brown, 6 Vet.App. 40, 44. A determination of whether CUE occurred must be based on the existing law and evidence of record at the time of the decision under review. Russell v. Principi, 3 Vet.App. 310, 314 (1992). In the case of Akles v. Derwinski, 1 Vet.App. 118 (1991), the Court determined that there was no requirement that a veteran must specify with precision the statutory provisions or regulations under which he sought benefits, and that the VA failed in the duty to assist by not scheduling a physical examination and by failing to inform a veteran of possible benefits to which he might be entitled. In the claim in Akles, the VA should have inferred, from the veteran's request for an increased rating for a disability of a reproductive organ, that he also desired special monthly compensation. Service medical records reveal that in August 1968, the veteran was involved in a motor vehicle accident, resulting in abrasions and lacerations of the right elbow, chin, left forehead, cheek, and left side of the neck. The deepest of these were on the face and left side of the neck, and they were sutured. X-rays of the chest, skull, left shoulder, clavicle, cervical spine and left knee were within normal limits. The veteran was discharged from hospitalization after 4 days, with a pertinent diagnosis of lacerations of the face and neck. In October 1968, the veteran was noted to have a contracting scar on the left neck which limited neck extension, and caused shaving difficulty and a cosmetic problem. In November 1968, he underwent excision of this scar with revision and Z-plasty. Pertinent physical findings at admission for the surgery were that the scar was contracted, depressed, and disfiguring. At discharge examination in September 1969, the head, face, neck, scalp, spine, and other musculoskeletal system were normal on examination, with the pertinent exceptions of a left side neck scar of 4 inches, and a left side forehead scar of 2 inches. On an application dated September 22, 1969, the veteran claimed service connection for "scars on left forehead, cheek and left neck needs additional medical attention." He added that these had been treated in service in August and November 1968. The application was received on October 2, 1969. Later that month, the regional office requested the service department to furnish a "line of duty determination" regarding the August 1968 automobile accident. A November 1969 rating decision granted service connection for residuals of lacerations of the neck and face, based on service medical records. The veteran was advised of this decision and of his right to appeal in a November 1969 letter. A January 1970 rating decision noted that additional service medical records had been received, but that the November 1969 rating decision was confirmed, and a letter to the veteran was not required. While the representative argues that the failure to notify the veteran of the 1970 rating decision was CUE, the Board observes that in 1970, the failure to notify a veteran of appellate rights did not extend the time limit for appealing a rating decision. See 38 C.F.R. § 19.110 (1970). As the veteran did not file a notice of disagreement with the 1969 or the 1970 rating decision, the decisions became final. See 38 C.F.R. § 3.104(a) (1969), 38 C.F.R. § 3.104(a) (1970). In February 1987, the veteran claimed service connection for a head, neck, shoulder, and left arm disability. A June 1987 rating decision denied service connection for chronic cervical syndrome manifested by neck pain, headaches, upper extremity neuropathy, and visual disturbance, finding that this was secondary to a 1986 motor vehicle accident. The veteran was notified of this decision and of his appellate rights by a July 2, 1987, letter. He did not appeal within one year thereafter; thus, this decision became final. See 38 C.F.R. § 3.104(a) (1987). In two statements received May 25, 1989, the veteran claimed that his scars affected the function of his head and neck. A September 1989 rating decision denied a claim to reopen the issue of service connection for chronic cervical syndrome manifested by neck pain, headaches, upper extremity neuropathy, and visual disturbance. The veteran appealed this decision, and a personal hearing was held in February 1990. The hearing officer decided in March 1990 that additional documents, in particular, lay statements received in December 1989, were new and material and, thus, permitted reopening the 1987 rating decision, but that the total evidence was not sufficient to allow the claim. The case was appealed to the Board, which considered the issue on a de novo basis. The claim was denied by the Board in October 1991. In January 1992, the Board received a motion to reconsider the October 1991 decision, which motion was granted in May 1992. Accordingly, the October 1991 Board decision was vacated. The Board's September 1992 reconsideration decision, which granted the claim, was substituted therefor. 38 U.S.C.A. § 7103(b). When a claim for service connection is granted after new and material evidence has been received after the appeal period to reopen the previous final denial of the claim, the effective date for service connection is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(1)(ii) (1994). Accordingly, by a September 1992 rating decision, the RO granted service connection for the veteran's cervical spine disability effective from May 25, 1989, the date of the reopened claim. However, if a final denial of a claim for service connection is granted after a reversal of the denial due to a finding that the denial contained CUE, then the effective date for service connection is the date from which benefits would have been payable if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. § 3.400(k) (1994). Therefore, by his attempts to obtain a reversal of the 1969 rating decision based on CUE, the veteran hopes to achieve an effective date of October 1, 1969, for service connection for his cervical spine disability. The Board, however, is unable to discern any CUE in the 1969 rating decision. The foremost allegation of clear and unmistakable error is that a medical examination should have been afforded to the veteran in 1969, which, it is asserted, would have revealed the cervical spine disability, permitting service- connection for same at that time. However, regulatory provisions effective at that time permitted the RO to rely on the service separation medical examination in lieu of a VA examination: "When a claim is filed within 6 months from date of separation it may be rated initially on the records of the service department. Otherwise no rating will be made without first obtaining a Veterans Administration examination." 38 C.F.R. § 3.326(e) (1969). This is dispositive in and of itself on the issue of clear and unmistakable error. Moreover, the earliest medical evidence of record showing a problem in the area of the veteran's cervical spine or muscles is dated November 1985. Also, in the February 1987 application for compensation, treatment for this problem was claimed only from 1985. Thus, the veteran asks the Board to speculate as to the existence of a disability in 1969 which he did not find so disabling as to obtain treatment until 1985. The RO in 1969 was empowered to grant service connection only for "particular" injuries or diseases "resulting in disability." 38 C.F.R. § 3.303(a) (1969) (emphasis added). Notwithstanding the argument that photographs prove that an examination in 1969 would have shown muscle loss, the conclusion that there was no disability from such loss until 1985 at the very least is defensible. Even on the assumption that an examination was required (which was not the case because of then section 3.326(e)), it is far from "absolutely clear that a different result would have ensued," had the veteran been afforded an examination prior to the 1969 rating decision. Fugo v. Brown, 6 Vet.App. 40, 43-44; Mindenhall v. Brown, 7 Vet.App. 271, 275 (1994). The Board has also considered the Akles case as it relates to this claim. However, the precedents of the Court's decisions are effective only from the date the relevant decisions are issued. See Tobler v. Derwinski, 2 Vet.App. 8 (1991). The Court issued its earliest precedent decisions in 1990. Decisions of the Court invalidating VA regulations or statutory interpretations do not have retroactive effect in relation to prior final adjudications of claims. Thus, the Court's decisions have retroactive effect only as they relate to claims still open to de novo review. VA O.G.C. Prec. Op. 9-94 (March 25, 1994). As the 1969 rating decision at issue in this case is final, the Board is unable to determine that it contained CUE in not applying a Court decision which had not yet been issued at the time of that rating decision. Finally, the excerpts submitted from the 1987 Code of Federal Regulations are not apposite to this claim, as the pertinent regulations are those in effect in 1969. In sum, the 1969 rating decision contains no CUE. II. SERVICE CONNECTION Service connection may be granted for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310. The Board will now address the claim that a duodenal ulcer is the result of medication for the service-connected cervical spine disability. In November 1986, the veteran was prescribed Motrin 800 milligrams to be taken twice per day for neck pain. In December 1986, he complained that the medicine was not beneficial to his pain, but was advised to continue taking it twice per day pending physical therapy evaluation. A January 1987 consultation revealed that he was taking aspirin on an as needed basis for his neck problem. He was given a prescription for Motrin 600 milligrams to be taken 3 times per day. In February 1988, he reported "by the way" that he had been having burning in his stomach "since Motrin." Upper gastrointestinal studies (UGI) were performed on February 9, 1988; the impression by the radiologist was duodenal ulcer. Progress notes dated February 12, 1988, report "duodenal ulcer on upper GI." Tagamet was prescribed. In September 1988 he was advised to take Chlorzoxazone or acetaminophen as needed for neck pain. Neurology consultation in June 1988 reflected the impression that the veteran should "continue" using nonsteroidal antiinflammatory drugs (NSAIDs), such as Motrin, as he was not a surgical candidate. It is not clear, however, that NSAIDs were actually being prescribed at that time. In February 1990, Parafon Forte was prescribed. In April 1990, he was noted to be taking Parafon Forte. On a report of medical history, probably prepared in April 1990, it was related that peptic ulcer disease had been diagnosed by "? EGD" in 1986, probably secondary to 18 months of uninterrupted Motrin use. In April 1990, he was hospitalized for electromyography and magnetic resonance imaging of the cervical spine and was discharged with instructions to continue using Parafon Forte. May 1990 outpatient treatment records note the veteran's history of peptic ulcer disease and reflect that Motrin 800 milligrams 3 times per day as needed was prescribed. VA neurology consultation in July 1990 showed that the veteran was taking "Cyotec," Parafon Forte, and Motrin as needed. In September 1990 at VA examination, the veteran reported that he took Cytotec 100 milligrams 4 times per day, Motrin 800 milligrams 3 times per day, and Parafon Forte, 2 tablets 4 times per day. He also complained at outpatient treatment that month of an upset stomach which he related to Motrin. He later that month complained of abdominal pain. An October 1990 colon X-ray was normal. At treatment in November 1990, the veteran complained of questionable intermittent bowel obstruction without other abdominal complaints. He was taking Cytotec 100 milligrams 4 times per day, Motrin 800 milligrams 3 times per day, and Parafon Forte as needed. In December 1990, his gastrointestinal (GI) problem was said to be probably functional in origin, and enteroclysis that month was normal and without obstruction. In February 1991, the veteran was said to take Motrin 800 milligrams 3 times per day and Zantac. It was noted that he took these medicines only sporadically. In October 1992, the veteran underwent VA stomach examination, at which he gave a history of taking up to 3200 milligrams of Motrin per day for neck pain for about 1 to 1 and 1/2 years, when he started having abdominal problems. He had seen a doctor at the Grand Junction VA clinic, who had ordered a UGI. The diagnosis had been duodenal ulcer. At that time the Motrin was stopped and Tagamet was started. Instead, Tylenol 3 and Soma had been prescribed for his pain. The veteran added that he had done reasonably well since then, but that since the Motrin had been stopped, he had had some vague abdominal complaints of a band- like crampy discomfort in the suprapubic area about once or twice per month, lasting from 2 hours to 2 days. The pain was relieved by passing a bowel movement, but after that, he might have diarrhea. Thereafter, the problem cleared up. Recently, he said, he had been put back on Motrin and Cytotec, but his stomach had started burning again so he did not take any NSAIDs. He denied black or bloody stools and stated that a recent hemoccult had been negative. On examination, his bowel sounds were normal, and his abdomen was nontender and without organomegaly. The assessment was history of duodenal ulcer. The October 1992 examiner opined that the issue of the relationship between the medicine for neck pain and the GI problems was very problematic. The physician noted that the amount of Motrin the veteran had once taken was clearly greater than therapeutic amounts, which could certainly have contributed to peptic ulcer disease, and "therefore I would say that that is a direct relationship." However, since the veteran had stopped the Motrin, the doctor could not see where Motrin could have contributed to recent GI complaints. The codeine prescribed could, conceivably, have caused constipation and the recent GI complaints. Therefore, the examiner did not feel that there was significant "current" pathology related to the veteran's medicine for his service-connected problems. A UGI at that time showed redundant proximal duodenum, but no ulceration. There was free reflux into the esophagus but prompt clearing and no hiatal hernia. The study was otherwise normal. At his personal hearing in July 1993, the veteran testified that he had been told both in 1987 and in February or March 1993 that his GI problems were due to Motrin, which he had taken for his neck pain. (t. 3.) He had never had any trouble with his stomach until after being on medicine for his neck. (t. 5.) Like the 1992 VA examiner, the Board finds the relationship between the medication for the veteran's cervical spine disability and his residuals of a duodenal ulcer to be a problematic one. Duodenal ulcer disease is considered to be a chronic disease by statute, and the mere absence of a current finding of activity should not be a bar to service connection for its residuals. It must be conceded that the October 1992 opinion is less than totally unambiguous. The evidence as to the existence of a duodenal ulcer has to be assessed in light of conflicting upper gastrointestinal studies. In the Board's view, the preponderance of the evidence does not support a conclusion that the veteran did not have a duodenal ulcer in February 1988. The next question is whether the October 1992 opinion can be fairly read as supporting a causal relationship between the veteran's consumption of medication for his service-connected cervical spine disorder and the development of a stomach ulcer. The Board has relied on the statement in the opinion that found a "direct relationship." Again, the judgment is that the preponderance of the evidence cannot be said to be against the veteran on this material issue. When, after consideration of all evidence and material of record in a case, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt of resolving each issue shall be given to the claimant. 38 U.S.C.A. § 5107. Therefore, the claim is granted. ORDER Service connection is granted for residuals of a duodenal ulcer secondary to service-connected disability. The November 1969 rating decision contains no clear and unmistakable error. JOHN E. ORMOND, JR. Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the 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 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.