Citation Nr: 0003466 Decision Date: 02/10/00 Archive Date: 02/15/00 DOCKET NO. 97-27 386A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York THE ISSUES 1. Timeliness of the notice of disagreement (NOD) to a January 1995 rating decision in which the RO found that new and material evidence had not been submitted to reopen a claim of entitlement to service connection for schizophrenia. 2. Whether a June 1973 rating decision that denied service connection for schizophrenia was clearly and unmistakably erroneous. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Schlosser, Associate Counsel INTRODUCTION The veteran had active military service from October 1972 to April 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision of the RO in May 1997, in which the RO determined that the veteran's February 1997 notice of disagreement (NOD) to a January 1995 rating decision was untimely, and from a July 1997 rating decision that denied a claim of clear and unmistakable error (CUE) in a June 1973 rating action. FINDINGS OF FACT 1. Notice of the RO's January 1995 rating decision in which it determined that new and material evidence had not been presented to reopen a claim of entitlement to service connection for schizophrenia was issued to the veteran on February 6, 1995. 2. The veteran's NOD, which was received at the RO in February 1997, was not filed within one year of the February 6, 1995, notification of the January 1995 rating decision. 3. In an unappealed June 29, 1973, rating decision, the RO denied service connection for schizophrenia. 4. The veteran has not sufficiently alleged error in fact or law in the June 1973 rating decision that denied service connection for schizophrenia. CONCLUSIONS OF LAW 1. The appeal as to the question of timeliness of the NOD to the January 1995 rating decision in which the RO determined that new and material evidence to reopen a claim of entitlement to service connection for schizophrenia is denied. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 20.200, 20.201, 20.302(a) (1999). 2. The appellant has failed to establish that a June 1973 rating decision was clearly and unmistakably erroneous with respect to the denial of service connection for schizophrenia. 38 C.F.R. § 3.105(a) (1973) and 38 C.F.R. § 3.105 (a) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Timeliness of NOD The Board shall not entertain an application for review on appeal unless it conforms to the law. 38 U.S.C.A. § 7108 (West 1991). Pursuant to applicable law and regulation, an appeal to the Board consists of a timely filed NOD in writing and, a timely filed substantive appeal received in response to a statement of the case (SOC). 38 U.S.C.A. § 7105; 38 C.F.R. § 20.200 (1999). The claimant has one year from the date of notification of the rating decision to file a NOD to initiate the appeal process. 38 U.S.C.A. § 7105(b)(1); 20.302. In the case on appeal, the RO denied the veteran's claim to reopen a prior final rating decision that had denied service connection for schizophrenia in a January 1995 rating decision. The RO then issued written notice to the veteran of the denial by correspondence dated February 6, 1995. A NOD was not received until February 1997, more than one year after the date of notification of February 1995 rating decision the appellant sought to appeal. If there is a failure to comply with the law or regulations, it is incumbent upon the Board to reject the application for review on appeal. 38 U.S.C.A. §§ 7105, 7108. As the veteran failed to submit a timely NOD with respect to the January 1995 rating decision in which the RO determined that new and material evidence had not been submitted to reopen a claim of entitlement to service connection for schizophrenia, and the Board does not have jurisdiction to review the underlying claim, the appeal must be denied. II. Clear and Unmistakable Error (CUE) Initially, the Board notes that the notice of the June 1973 rating decision is not currently in the claims folder. This is a significant point, one which the Board will address before discussing the CUE claim because it is critical to finding that the June 1973 rating decision is a final rating decision from which an appeal may not now be taken. See 38 C.F.R. §§ 20.302, 20.1103 (1999). (In other words, if notice was never sent to the veteran, the question of CUE would not need to be addressed because the June 1973 rating decision would not have become a final, binding rating decision as contemplated by 38 C.F.R. § 3.105(a) (final and binding rating decisions are accepted as correct in the absence of CUE).) As noted, no copy of a notification letter appears in the claims file immediately following the June 1973 rating decision. Presumably, the appellant was sent such a letter in accordance with regular procedures. Evans v. Brown, 9 Vet.App. 273 (1996) (there is a presumption of regularity that applies to the mailing of RO determinations). Nevertheless, even without such presumption, the Board notes that the veteran was notified of the denial of service connection in October 1982, January 1983, February 1983, June 1993, and September 1993. While these notifications came many years after the June 1973 denial, letters dated in these months informed the veteran that his schizophrenia was not service connected and instructed him on the procedure for appealing such a determination. However, he did not appeal. See 38 C.F.R. § 19.118 (1982) and 38 C.F.R. § 19.129 (1983, 1993) (a claimant has one year in which to file a notice of disagreement with a VA determination). The result is that, even with notice of the denial coming many years after the June 1973 determination, the veteran's failure to contest any notice of the denial of the claim renders the June 1973 denial final and binding as contemplated by 38 C.F.R. § 3.105(a). Consequently, the June 1973 determination may only be revised upon either upon the presentation of new and material evidence (which, for reasons discussed above, may not now be considered or addressed), or upon a showing of CUE in that denial of the claim. Under the provisions of 38 C.F.R. § 3.105(a), CUE requiring revision of a prior final rating action exists only where it appears "undebatably" that "[e]ither the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied." Russell v. Principi, 3 Vet.App. 310, 313 (1992). A determination that there was CUE must be based on the record and the law that existed at the time of the prior unappealed rating decision. Russell, at 314. Additionally, CUE 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. Fugo v. Brown, 6 Vet.App. 40, 43 (1993). A disagreement with how the RO evaluated the facts is inadequate to raise such a claim. Luallen v. Brown, 8 Vet.App. 92, 95 (1995). At the time of the June 1973 RO rating decision, the evidence of record consisted of the veteran's service medical records. Appellate review of the veteran's service medical records reveals that, prior to the start of basic training, the veteran was noted to be confused and returned late from a pass for which he received an Article XV and a fine of sixty dollars. Thereafter, on November 16, 1972, the veteran was hospitalized at Fort Dix for treatment of a fracture of the left ankle and rupture of the ligaments of the ankle. During that hospitalization, the veteran exhibited unusual behavior and was transferred to the psychiatric ward where he was diagnosed with schizophrenia. An informal Physical Evaluation Board was held at the hospital at Fort Dix in February 1973. At that time, the veteran was found unfit for further military service and medically discharged with a diagnosis of schizophrenia. In the veteran's case, it has been argued that the evidence supported a grant of service connection for schizophrenia in June 1973 because his entrance examination did not reveal any psychiatric disability prior to service. He contends that he did not have any mental problems until he was in service. However, the veteran's allegations are merely that the RO should have weighed the evidence differently, or should have done more to assist the veteran with his claim. These arguments do not suffice to establish CUE. The Board finds that the veteran has not alleged any error(s) that are the kind of error that would be CUE on its face. See Fugo, 6 Vet. App. at 44. There is no indication in the record that the correct facts were not before the RO. Also, while the appellant has referenced the RO's failure to properly apply the laws with respect to resolving reasonable doubt in the veteran's favor, no assertion has been made with any degree of specificity as to how a different application of the laws and regulations cited by the appellant would dictate a "manifestly different" result. Id. Rather, the effect of the appellant's contentions is that he is merely asserting disagreement with how the RO evaluated the facts before it in June 1973. This is an allegation, which is inadequate to raise a CUE claim. Id. When the determinative issue is "not evidentiary but legal, i.e., has the appellant complied with the legal requirements to plead a CUE claim," and the appellant has failed to meet the legal requirement, the claim must be denied. See Luallen, 8 Vet. App. at 96. ORDER The appeal on the issue of timeliness of the NOD to the January 1995 rating decision in which the RO determined that new and material evidence had not been submitted to reopen a claim of entitlement to service connection for schizophrenia is denied. The claim of CUE in a June 1973 rating decision is denied. JACQUELINE E. MONROE Member, Board of Veterans' Appeals