Citation Nr: 0000672 Decision Date: 01/10/00 Archive Date: 01/19/00 DOCKET NO. 98-04 891 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to an effective date prior to April 21, 1997, for the grant of service connection for residuals of gonorrhea, to include oligospermia, hypoplastic testes, and impotence. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Solomon J. Gully, IV, Associate Counsel INTRODUCTION The veteran served on active duty from November 1966 to November 1969. This matter is currently before the Board of Veterans' Appeals (Board) on appeal from a December 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah, which granted service connection for residuals of gonorrhea, to include oligospermia, hypoplastic testes, and impotence, evaluated as noncompensably disabling, effective from April 21, 1997. In an increased rating claim, a veteran is generally presumed to be seeking the maximum benefit available. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In this case, an April 1998 rating decision granted the maximum evaluation, 20 percent, available for complete atrophy of the testes under Diagnostic Code 7523, and the veteran has indicated that he is seeking appellate review as to only the issue of entitlement to an effective date prior to April 21, 1997, for the grant of service connection for residuals of gonorrhea, to include oligospermia, hypoplastic testes, and impotence. Thus, the claim for an increased rating for residuals of gonorrhea has been satisfied and no longer remains a matter in controversy. FINDINGS OF FACT 1. The RO has obtained all available relevant evidence necessary for an equitable disposition of the appeal. 2. In November 1974, the RO received the veteran's initial claim for service connection for sterilization with loss of use of the right testicle, and a nonfunctioning left testicle. 3. A January 1975 rating decision denied the veteran's claim for service connection for loss of use of a creative organ. In a January 22, 1975 letter, the RO notified the veteran of its denial of his claim, and informed him of his appellate rights with respect to the decision. This letter was not returned by the United States Postal Service as undeliverable. The veteran did not file a timely appeal. 4. In February 1993, the veteran filed a claim of entitlement to service connection for sterility due to Agent Orange exposure. A July 1994 rating decision denied service connection, and the veteran did not file a timely appeal. 5. On April 21, 1997, the RO received a statement from the veteran in which he indicated that he wished to pursue a claim for service connection for oligospermia with hypoplasia testes due to gonorrhea. Later that month, the RO determined that new and material evidence had not been submitted to reopen the claim. The veteran did not file a timely appeal. 6. A November 1997 report from a VA physician concludes that the veteran's infertility and impotence are as likely as not related to gonorrheal infections that he contracted during active duty. 7. In a December 1997 rating decision, the RO granted service connection for residuals of gonorrhea, to include oligospermia, hypoplastic testes, and impotence, and assigned a noncompensable evaluation, effective from April 21, 1997. CONCLUSION OF LAW An effective date earlier than April 21, 1997, for the grant of service connection for residuals of gonorrhea, to include oligospermia, hypoplastic testes, and impotence, is not warranted. 38 U.S.C.A. §§ 5107, 5110, 7105 (West 1991); 38 C.F.R. §§ 3.104, 3.400 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background A review of the service medical records reveals that the veteran received treatment for gonorrheal urethritis in March 1967. An August 1967 record notes urethral discharge, and a smear was positive for gonorrhea. Medication was prescribed. The October 1969 separation examination report notes a normal clinical evaluation of the genitourinary system. A May 1970 VA examination, performed in conjunction with an unrelated claim for service connection, revealed a normal genitourinary system. An October 1974 private hospital report notes that the veteran was admitted for treatment of questionable aspermia. At that time, the veteran gave a history of severe bilateral gonorrheal epididymal orchitis a few years earlier. He further reported that the right testes "shriveled up significantly." A physical examination was essentially negative, except for hypoplastic right testes. A testicular biopsy showed "marked diminished and abnormal spermatogenesis," and an inclusion cyst was excised from the scrotum. The discharge diagnosis was severe oligospermia. The physician opined that it was quite likely that the stricture in the vas was secondary to gonorrhea. In November 1974, the veteran filed a claim of entitlement to service connection for sterilization with loss of use of the right testicle, and a nonfunctioning left testicle. At that time, the veteran reported that his current address was on Norwood Drive, Lincoln, Nebraska 68512. A January 1975 rating decision denied service connection for loss of use of a creative organ. In correspondence dated January 22, 1975, the RO notified the veteran of this decision, and informed him of his appellate rights. This letter was mailed to the address provided by the veteran in the November 1974 claim, and was not returned by the United States Postal Service as undeliverable. The veteran filed a claim of entitlement to service connection for sterility due to Agent Orange exposure in February 1993. An April 1993 VA examination revealed that the veteran's right testicle measured 3 centimeters (cm) x 3 cm in dimension, and was slightly softer than normal in consistency. A semen cytology revealed no spermatozoa. The pertinent diagnosis was history of an abnormal sperm count, and current laboratory evidence of absence of sperm in the semen sample. In May 1993, the RO deferred adjudication of the veteran's claim pending the receipt of regulatory authority regarding Agent Orange claims. Thereafter, a July 1994 rating decision denied entitlement to service connection for sterility secondary to Agent Orange exposure. In April 1997 correspondence, the veteran sought to reopen his claim for service connection for oligospermia with hypoplasia testes due to gonorrhea. Later that month, the RO determined that new and material evidence had not been submitted to reopen the claim. In May 1997, VA outpatient records reflecting treatment from October 1974 to April 1993, were associated with the veteran's claims folder. A June 1997 report from the veteran's private physician notes that the veteran apparently contracted gonorrhea in 1967, but did not seek medical treatment for several days due to embarrassment. When the veteran finally received treatment, his testicles were severely swollen and tender to the point where he could hardly walk. He was subsequently treated with antibiotic injections. The physician noted that the veteran's separation examination was normal. He reported that the veteran was found to be azospermic in 1974, and indicated that a subsequent testicular biopsy revealed markedly diminished spermatogenesis. According to the report, the veteran's testicles gradually decreased in size since that time "to the point where he has almost nothing on the right side and a small nubbin on the left." The report notes that the veteran declined a physical examination. The physician concluded that the veteran's untreated gonorrhea could have caused significant orchitis, which may have affected his fertility. In July 1997, the RO found that new and material evidence had not been submitted to reopen the veteran's claim. The veteran filed a notice of disagreement with this decision later that month. In November 1997, following a review of the veteran's claims folder, and an interview with the veteran, a VA examiner opined that the veteran's infertility and impotence are as likely as not related to gonorrheal infections that he contracted during active duty. Based on this evidence, a December 1997 rating decision granted service connection for residuals of gonorrhea, to include oligospermia, hypoplastic testes, and impotence, and assigned a noncompensable evaluation, effective from April 21, 1997. The following month, the veteran filed a notice of disagreement with the April 21, 1997 effective date. He reported that, to the best of his knowledge, he never received the January 1975 denial letter from the RO. The veteran submitted a substantive appeal (Form 9) in March 1998, perfecting his appeal. Therein, he maintained that the effective date should be in November 1974, when he filed the initial claim of entitlement to service connection. He asserted that an earlier effective date is warranted because the RO failed to order a VA examination prior to the January 1975 decision, improperly weighed the medical evidence, and failed to offer any medical or scientific reasons for the denial. Analysis The Board finds that the facts relevant to the issue on appeal have been properly developed and that the statutory obligation of VA to assist the veteran in the development of his claim has been satisfied. 38 U.S.C.A. § 5107(a). The veteran contends that the grant of service connection for residuals of gonorrhea, to include oligospermia, hypoplastic testes, and impotence, should be effective the date he first submitted a claim for service connection. In essence, he appears to be contending that the unappealed January 1975 denial of his claim by the RO is a nullity due to due process violations, specifically failure on the part of VA to inform him in January 1975 of the denial of his claim and his appeal rights. Thus, he believes that his claim extends back to its filing in November 1974. The method for determining the effective date of a grant of service connection is set forth in 38 U.S.C.A. § 5110(a), as well as 38 C.F.R. § 3.400. With respect to the assignment of an effective date, the applicable law indicates that, except as otherwise provided, the effective date of an award based on an original claim 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.A. § 5110(a) (West 1991). The date of entitlement to an award of service connection is the day following separation from active service or date entitlement arose if the claim is received within one year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i) (1999). A rating action becomes final unless it is appealed within one year. After a claim has been denied by a rating decision that was unappealed or from which an appeal was not perfected, it may be challenged on the basis that it contained clear and unmistakable error. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.105, 20.200, 20.302, 20.1103 (1999). In pertinent part, the effective date of an award based on a claim reopened after final disallowance shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(q)(1)(ii) and § 3.400(r). In essence, the RO assigned the April 21, 1997 effective date for service connection based on the date of the veteran's submission of a reopened claim under 38 C.F.R. § 3.400(q),(r), and denied his claim for an earlier effective date because of the final unappealed January 1975 decision. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 20.1103 (1999). At the outset, the Board observes that the veteran is not contending that he lived at a different address than was listed in VA records. Rather, he has simply stated that he could not recall receiving the January 1975 denial letter from the RO. The United States Court of Veterans Appeals (Court) has defined a presumption of administrative regularity as follows: "[t]he presumption of regularity supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties." Clear evidence to the contrary is required to rebut the presumption of regularity. Ashley v. Derwinski, 2 Vet. App. 307 (1992), (quoting United States v. Chemical Foundation, 272 U.S. 1, 14-15 (1926). While the Ashley case dealt with regularity and procedures at the Board, in Mindenhall v. Brown, 7 Vet. App. 271 (1994), the Court applied the presumption of regularity to procedures at the RO level, such as in the instant case. In this case, therefore, there is the presumption that the veteran received the letter which evidence in the claims folder indicates VA mailed to him on January 22, 1975. The information which was put in his claims folder in January 1975 is presumptive evidence that he received this letter. The veteran's statement that he did not recall receiving the notice that official VA records indicate was sent, is insufficient to rebut the presumption of regularity. See Mindenhall, supra. The address that the letter was sent to was the last known address of record of the veteran. There is no returned mail or other evidence to indicate the veteran did not receive the letter. The veteran does not contend, and the record does not demonstrate, that he appealed the January 1975 rating decision. Accordingly, that decision became final. While the veteran filed a claim of entitlement to service connection for sterility due to Agent Orange exposure in February 1993, a July 1994 rating decision denied the claim, and the veteran did not file a timely appeal. The evidence does not demonstrate, and the veteran does not contend, that any other claims of entitlement to service connection for residuals of gonorrhea, formal or informal, were filed between February 1993 and April 1997, when he filed his reopened claim. For the reasons stated above, the Board has concluded that the veteran's initial claim of entitlement to service connection for sterilization, which was filed in November 1974, was denied in an unappealed RO decision in January 1975. That decision was proper under the circumstances. The effective date of the grant of service connection for residuals of gonorrhea cannot be earlier than the date of VA receipt of the application to reopen, or the date entitlement arose, whichever is later. See 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b) and (q)(ii). In this case, the veteran's application to reopen his claim for service connection for residuals of gonorrhea was received on April 21, 1997. As a result, the claim for an earlier effective date must be denied. Id. The Board has carefully examined the record in order to determine whether there may be an inferred claim of clear and unmistakable error (CUE). See 38 C.F.R. § 3.105(a); Douglas v. Derwinski, 2 Vet. App. 103, 109 (1992). The Board recognizes that in the March 1998 substantive appeal, the veteran maintained that the RO failed to order a VA examination prior to the January 1975 decision, improperly weighed medical evidence, and failed to offer any medical or scientific reasons for its denial of his claim. However, the fact that a VA medical examination was not conducted may not form the basis for a CUE claim, because it is premised upon speculative findings that were not then of record. Shockley v. West, 11 Vet. App. 208, 213 (1998); Hazan v. Gober, 10 Vet. App. 511, 523 (1997). Essentially, the veteran's arguments amount to no more than a disagreement as to how the facts were weighed or evaluated by the RO in January 1975. Therefore, the veteran has not alleged CUE within the meaning of applicable law. Crippen v. Brown, 9 Vet. App. 412, 417- 418 (1996); Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993); Damrel v. Brown, 6 Vet. App. 242, 246 (1994). The Board notes that this case is unlike Johnston v. Brown, 10 Vet. App. 80 (1997). In Johnston, an earlier effective date claim based on CUE had been specifically raised by the appellant. See Johnston, 10 Vet. App. at 82, 86. Such a CUE claim has been not raised by this veteran. Even if a CUE claim could be inferred, the Board would be without jurisdiction to adjudicate it, in the absence of an RO adjudication of it and an appeal timely filed as to it. See Johnston, 10 Vet. App. at 90 (Steinberg, J., concurring). ORDER An effective date earlier than April 21, 1997, for the grant of service connection for residuals of gonorrhea, to include oligospermia, hypoplastic testes, and impotence, is denied. WAYNE M. BRAEUER Member, Board of Veterans' Appeals