Citation Nr: 0002843 Decision Date: 02/04/00 Archive Date: 02/10/00 DOCKET NO. 97-28 085 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE 1. Whether a 1978 rating decision was clearly and unmistakably erroneous in failing to find loss of use of a creative organ for purposes of entitlement to special monthly compensation (SMC). 2. Entitlement to an earlier effective date for SMC for loss of use of a creative organ, prior to January 10, 1991. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. A. Herman, Associate Counsel INTRODUCTION The veteran had active military service from September 1967 to July 1971. This appeal arises from a November 1992 rating decision of the New York, New York, regional office (RO) which granted entitlement to SMC for loss of use of a creative organ, effective in January 1991. The veteran objects to the effective date that was assigned to this award. The notice of disagreement was received in October 1993. The statement of the case was issued in July 1997. The veteran's substantive appeal was received in August 1997. The Board of Veterans' Appeals (Board) observes that the veteran filed additional evidence in January 2000 that had not been previously considered by the RO. However, in an attached statement, the veteran waived review of the additional evidence by the RO. Therefore, pursuant to 38 C.F.R. § 20.1304(c) (1999), that evidence need not be considered by the RO. FINDINGS OF FACT 1. With respect to the 1978 rating decision, failure of the RO to consider the regulations pertaining to loss of use of a creative organ for purposes of special monthly compensation would not have produced a manifestly different result to which reasonable minds could not differ had the error not been committed, as the medical evidence before the RO at that time did not undebatably show that the veteran had loss of use of a creative organ. 2. On January 4, 1991, the veteran's initial claim of entitlement to SMC based on loss of use of a creative organ was received at the RO. 3. By a rating action dated in November 1992, SMC for loss of use of a creative organ was granted with an effective date of January 10, 1991. CONCLUSIONS OF LAW 1. The 1978 decision that did not find loss of use of a creative organ for purposes of SMC was not clearly and unmistakably erroneous. 38 U.S.C.A. 5107, 7105 (West 1991); 38 C.F.R. 3.105(a) (1999). 2. The criteria for an effective date of January 4, 1991, but no earlier, for SMC for the loss of use of a creative organ have been met. 38 U.S.C.A. §§ 1114, 5107, 5110 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.105, 3.350(a), 3.400 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background At the outset, the Board notes that the veteran's claims folder has been rebuilt. Numerous attempts to ascertain the whereabouts of the claims folder, or any document that would been contained within the claims folder, have failed. Further, a request to the National Personnel Records Center (NPRC) for service medical records, to which a response was received by the RO in July 1993, notes that all medical records were sent to the RO in July 1978. A similar response was received from the NPRC in August 1993. There are no service medical records available. Review of the file shows that the file begins with documents dated in January 1991. The claims folder itself is identified as a rebuilt folder. In January 1991, the veteran filed a claim for SMC "K" for loss of use of a creative organ. He said he was currently assigned a noncompensable disability evaluation for the service-connected residuals of the mumps, an atrophic testicle. He maintained his initial claim for compensation should have included a claim for SMC. While he received notice of the grant of service connection, he asserted that he was never apprised of the determination regarding the issue of SMC. He contended that he was entitled retroactive entitlement to SMC "k" from the date of his original claim for compensation. He stated the RO erred by either failing to consider the SMC issue or by not notifying him of decision if one was in fact made. A date stamp on the front page of this statement indicated that the claim was received on January 10, 1991. However, a date stamp on the back page showed the date of receipt to be January 4, 1991. The veteran submitted a copy of his service discharge examination report. An examination of his genitourinary system was noted to have shown an atrophic right testicle. He was also noted to have body marks and scars. Neither of those conditions were considered to be disabling. The circumstances surrounding the incurrence of the atrophic right testicle were not discussed. A July 1979 letter to the veteran from the Buffalo RO was also associated with the claims folder. Therein, the RO indicated that the veteran had been furnished a certificate establishing his Civil Service preference. The veteran was noted to have a service-connected disability or disabilities with residuals that were noncompensable. The disability or disabilities were not identified. The veteran was afforded a VA genitourinary examination in October 1992. He stated he contracted the mumps with secondary right mumps orchitis and atrophy during his military. He said he noticed that his right testicle was smaller immediately after he was discharged from the hospital. On physical examination, the veteran's right testicle measured two centimeters by three centimeters. His left testicle measured six centimeters by three centimeters. The consistency of the right testicle was soft when compared to the left. The diagnosis was atrophic right testicle secondary to mumps orchitis. In a statement received in October 1992, the veteran reported that he developed the mumps during his basic training. He said he developed a high grade fever and was shipped by ambulance to the U.S. Naval Hospital Great Lakes. He stated he was treated with bed rest and scrotal support for orchitis after the fever subsided. Since that time, the veteran maintained his right testicle had been atrophic. He denied receiving any treatment for his right testicle disorder since his military service. He stated service connection for right testicle atrophy had been established based on his service medical records, and that he had never been afforded a VA examination. He asserted that SMC for loss of use of a creative organ should been awarded at the time he was granted service connection for atrophy of the right testicle. By a rating action dated in November 1992, service connection for atrophy of the right testicle was granted, effective January 1991. A noncompensable disability evaluation was assigned. The veteran was also found to be entitled to SMC on account of loss of use of one creative organ. The effective date of the award of SMC was January 10, 1991. In a November 1992 memorandum, the veteran's representative requested that the RO reconsider the effective date of the award of SMC. The representative argued that the Adjudicative Procedures Manual, M21-1, Part VI, Subparagraph 8.15(a) clearly set forth that SMC could be authorized for loss or loss of use of a creative organ "without" a specific claim. He said that an initial claim for disability should also consider entitlement to SMC when appropriate. As the evidence of record showed that the veteran had an atrophic right testicle at the time of his service discharge, the representative stated the RO erred by failing to consider his entitlement to SMC at the time he was granted service connection. A statement was received from O.A. Lindefjeld, M.D., in March 1996. Having reviewed the veteran's claims folder, Dr. Lindefjeld stated the available medical records showed that the veteran had atrophy of the right testicle as a result of mumps orchitis that occurred in 1967. Dr. Lindefjeld opined that it was "reasonable to presume" that the extent of the atrophy dated "back to 1967." In June 1996, the RO denied entitlement to an earlier effective date for the grant of SMC. The RO acknowledged that the medical evidence showed that his atrophy of his right testicle was stable, and that the findings of the 1992 VA examination would therefor extend to the veteran's condition at the time of his discharge from service. However, the RO found there was nothing in the record that showed the grant of service connection for "residuals" pertained to his atrophic right testicle. The RO said the "residuals" may have been the scars that were reported on the report of his service discharge examination. A September 1992 copy of a BIRLS was also observed to have shown that service connection for atrophy of the right testicle had been previously denied. In other words, there was no evidence that he was granted service connection for atrophy of the right testicle in 1979. Moreover, it was noted that the veteran did not appeal the 1979 decision, and that said decision became final one year after he was notified. The veteran filed a substantive appeal in August 1997. He stated the old BIRLS screen was wrong. He maintained he never filed a claim for service connection for scars, and that service connection had never been granted for the same. He submitted a copy of an August 1978 letter from the New York RO that indicated he had been awarded a noncompensable disability evaluation for a genitourinary disorder. The veteran was afforded a personal hearing before the RO in January 1999. He discussed his inservice treatment for mumps orchitis and being diagnosed as having an atrophic right testicle at his service discharge examination. He denied having any problem with his right testicle prior to his military service or since that time. He asserted that the atrophic right testicle was the only genitourinary condition that he received treatment for in service. With that in mind, the veteran stated the evidence of record clearly showed that the genitourinary condition that he was awarded service connection for in 1978 was the atrophic right testicle identified at his discharge examination. In this regard, the veteran said the August 1978 rating failed to consider his entitlement to SMC, and that entitlement to SMC was an inferred issue that should have been addressed. He indicated that this argument was supported by the holding in Akles v. Derwinski, 1 Vet. App. 118 (1991). He testified that he did not receive a VA examination in 1978, and that the award of service connection had been based on the findings of the service discharge examination. In April 1999, the hearing officer denied entitlement to an earlier effective date for SMC. She recognized that the Akles decision was pertinent to the case because it was possible that VA did not comply with its duty to assist by failing to inform the veteran about benefits that he may been entitled to receive. However, citing Caffrey v. Brown, 6 Vet. App. 377, she noted that, while an incomplete record may lead to an incorrect determination, it cannot be said that an incomplete record is also an incorrect record. The hearing officer found there was no evidence prior to the October 1992 VA examination showing that the veteran's right testicle met the regulatory criteria for establishing SMC. She held the opinion from Dr. Lindefjeld that stated it was reasonable to presume that the extent of the atrophy dated back to 1967 was too speculative because there was no objective evidence to support said opinion. In sum, even if it were conceded that the veteran was granted service connection for atrophy of the right testicle in 1978, the hearing officer concluded there was no evidence that the August 1978 rating decision was clearly and unmistakably erroneous. A supplemental statement of the case was mailed to the veteran in February 1999. In January 1999, the veteran submitted an additional statement with regard to his claims. His arguments essentially mirrored those that were previously considered by the RO. He also included copies of correspondence between the RO, the VA Central Office, and his representative. Those letters seemed to have indicated that the RO had, at one point, considered granting the veteran's claim of clear and unmistakable error and had asked the Central Office for an advisory opinion on the same. A notation from an unidentified source observed that an internal source in the RO had decided not to request the advisory opinion. II. Analysis As noted above, the veteran alleges that the rating decision of November 1978, by which his claim of service connection for atrophy of the testicle was granted, was the product of clear and unmistakable error. The veteran and his representative argue that the veteran was entitled to SMC for loss of use of a creative organ at the time he was awarded service connection for atrophy of the right testicle in 1978. They assert entitlement to SMC was an inferred claim, and that the RO committed clear and unmistakable error by not considering that issue in its 1978 rating decision. Previous determinations as to service connection which are final and binding are accepted as correct in the absence of clear and unmistakable error. 38 C.F.R. § 3.105(a) (1999). In Russell v. Principi, 3 Vet. App. 310, 313-14 (1992), the U.S. Court of Appeals for Veterans Claims (Court) propounded a three-pronged test to determine whether clear and unmistakable error was present in a prior determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was clear and unmistakable error must be based on the record and law that existed at the time of the prior adjudication in question. The Court has refined and elaborated on that test as follows: Clear and unmistakable error 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 . . . . If a claimant- appellant wishes to reasonably raise clear and unmistakable error there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error . . . that, if true, would be clear and unmistakable error on its face, persuasive reasons must be given as to why the result would have been manifestly different but for the alleged error. It must be remembered that there is a presumption of validity to otherwise final decisions, and that where such decisions are collaterally attacked, and a clear and unmistakable error claim is undoubtedly a collateral attack, the presumption is even stronger. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In determining whether the 1978 rating decision (which is not of record) contained clear and unmistakable error, the Board must review the evidence that was before the RO at that time. 38 C.F.R. § 3.104(a). As set forth above, a determination that there was clear and unmistakable error must be based on the record and the law that existed at the time of the prior decision. See Russell. The Board cannot resort to the benefit of hindsight to evaluate whether clear and unmistakable error existed in the RO's action in 1978. The VA regulations pertaining to loss of use of a creative organ from 1978 to the present have remained relatively static. Under 38 U.S.C.A. § 1114(k) and 38 C.F.R. § 3.350(a), if a veteran, as the result of service- connected disability, has suffered loss or loss of use of a creative organ, the veteran is entitled to SMC. Loss of a creative organ will be shown by acquired absence of one or both testicles (other than undescended testicles) or ovaries or other creative organ. Loss of use of one testicle will be established when examination by a board finds that: (a) the diameters of the affected testicle are reduced to one-third of the corresponding diameters of the paired normal testicle, or (b) the diameters of the affected testicle are reduced to one-half or less of the corresponding normal testicle and there is alteration of consistency so that the affected testicle is considerably harder or softer than the corresponding normal testicle; or (c) if neither of the conditions (a) or (b) is met, when a biopsy, recommended by a board including a genitourologist and accepted by the veteran, establishes the absence of spermatozoa. 38 C.F.R. § 3.350(a)(1)(i). The veteran's claims folder has been rebuilt. The evidence of record at the time of the November 1978 rating decision is not available for review. However, copies of the veteran's service discharge examination and the November 1978 letter notifying him that had been granted a noncompensable evaluation for a genitourinary condition have been considered. The Board initially observes that there is no evidence that the veteran claimed or alleged loss of use of a creative organ prior to January 1991. The veteran does not allege otherwise. While he now claims that the atrophy of his right testicle met the requirements for a SMC at the time of his separation from service and has submitted a recent private medical opinion to that effect, this evidence was not associated with the record until after January 1991. The Court has held that subsequently developed evidence is not applicable in this respect. Graves v. Brown, 6 Vet. App. 166, 171 (1994). Therefore, it may not be considered in determining whether there was clear and unmistakable error in rating decisions rendered prior to that time. Russell, 3 Vet. App. at 313-4. The only evidence that the Board can presume to be of record at the time of the 1978 decision was the report of his service discharge examination. In this regard, the copy of the 1967 discharge examination report merely indicated that the veteran had atrophy of the right testicle. There was no description of the atrophic right testicle. The condition was not considered to be disabling. Notwithstanding the veteran's arguments, the Board finds that loss of use of a creative organ was not clearly demonstrated on the report of the service discharge examination. There were no notations with regard to the measurements or consistency of his testicles. By his own admission, the veteran states that the award of service connection in 1978 was based solely on a review of his service medical records. He also denies having received treatment for his right testicle condition since his discharge from military service. In light of the foregoing, the Board finds that clear and unmistakable error in the 1978 rating decision has not been demonstrated. There is no evidence that the veteran specifically claimed entitlement to special monthly compensation based on loss of use of a creative organ prior to January 1991. He has testified that his claim in 1978 was limited to the issue of service connection. The Board recognizes that the issue of SMC was arguably raised based on the findings of the discharge examination report and thus arguably should have been considered by the RO. See Akles v. Derwinski, 1 Vet. App. 118 (1991) (held that VA must infer that a claim for an increased rating includes a claim for SMC as there is no requirement that a claimant veteran must specify with precision the statutory provisions or regulations under which the benefit is sought). However, given the findings on the discharge examination, there is no basis for concluding that had the RO actually considered the pertinent regulations, loss of use of a creative organ would have been found. As indicated above, clear and unmistakable error must be "undebatable" and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made. In other words, even if it were assumed arguendo that the RO did err in failing to consider loss of use regulations, such an error would not have produced a manifestly different result to which reasonable minds could not differ since the available medical evidence of record did not undebatably show that the veteran had loss of use of a creative organ. See Fugo at 43-44. Even if one were to assume that there was a duty to assist in 1978, VA's breach of such duty cannot form a basis for a claim of CUE because such a breach creates only an incomplete rather than an incorrect record. Caffrey v. Brown, 16 Vet. App. 377, 384 (1994). In view of the foregoing, the Board concludes that clear and unmistakable error in the 1978 rating decision which failed to find loss of use of a creative organ has not been demonstrated. 38 C.F.R. § 3.105(a). The Board further points out that even if a claim for SMC for loss of use of a creative organ had been raised by the record, there is no final decision upon which a clear and unmistakable error claim could be based. See 38 C.F.R. § 3.105(a). The notice of the RO's 1978 decision did not discuss the issue of entitlement to SMC. The veteran never filed a notice of disagreement with the rating action or in any manner indicated that he had greater disability manifested by loss of use. He does not contend otherwise. In other words, the Board finds that there was no actual claim for SMC for loss of use of a creative organ at the time of the RO's 1978 decision. In the absence of clear and unmistakable error, the effective date of an award of increased disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if claim is received within one year from such date; otherwise, date of receipt of claim. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(o)(2). Under 38 C.F.R. § 3.400(o)(1), the enabling regulation, except as provided in 38 C.F.R. § 3.400(o)(2), the effective date is "date of receipt of claim or date entitlement arose, whichever is later." Harper v. Brown, 10 Vet. App. 125, 126 (1997). A report of an examination or hospitalization will be accepted as an informal claim for benefits under existing law, if the report relates to a disability which may establish entitlement. The date of outpatient or hospital examination or date of admission to a VA hospital will be accepted as the date of receipt of a claim. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.157(b)(1). The Court has held that 38 C.F.R. § 3.157(b)(1) does not require the veteran to identify the report as a claim or to identify the benefits sought. Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). In the present case, the veteran filed a claim for SMC for loss of use of a creative organ in January 1991 The claim was received on January 4, 1991. As discussed above, the Board has found no evidence demonstrating that a claim for SMC was received prior to that time. The RO granted SMC in November 1992 and assigned an effective date of January 10, 1991. The veteran contends that entitlement to SMC should granted to the date when he was initially awarded service connection of right testicle atrophy in 1978. In support thereof, he has submitted a private medical opinion that states that it is reasonable to presume that the atrophy of the right testicle currently suffered by the veteran existed at the time of his service discharge. Nevertheless, the effective date of the award cannot be any earlier than the date of receipt of the claim. In this regard, pursuant to § 3.400(o)(1), the Board finds that an effective date of January 4, 1991, but no earlier, for the award of SMC is warranted. ORDER The claim of clear and unmistakable error in a 1978 rating decision which failed to find loss of use of a creative organ for purposes of SMC is denied. An effective date of January 4, 1991 for an award of SMC for loss of use of a creative organ is granted, subject to the law and regulations governing the payment of monetary benefits. BARBARA B. COPELAND Member, Board of Veterans' Appeals