BVA9506106 DOCKET NO. 93-22 507 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an effective date earlier than July 19, 1988, for the grant of service connection for hypertension. 2. Entitlement to service connection for a right knee disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. B. Weiss, Associate Counsel INTRODUCTION The veteran had active duty from February 1970 to December 1971. At the veteran's February 1994 personal hearing before a member of the Board of Veterans' Appeals (Board), he withdrew from appellate consideration the issue of a total rating based on individual unemployability due to service-connected disabilities. (Transcript of hearing at page 2 or t. 2.) In a statement received in September 1993, the representative asserted that the claims for an increased rating for hypertension and for service connection for memory loss and impotence have not yet been adjudicated. These issues are not inextricably intertwined with the instant claims and are not before the Board at this time. They are referred to the regional office (RO) for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that a 1972 rating decision clearly and unmistakably erred in denying service connection for hypertension, and that, therefore, the decision should be null and void and not the basis for finding that service connection for hypertension was finally denied. He also asserts that he was never notified of his appellate rights and, therefore, the 1972 decision should not have become final. He claims that he was again not notified of his appellate rights in 1979 when he claimed service connection for hypertension. He desires service connection for hypertension from the time of service separation. He additionally claims that he initially injured his right knee in service in maneuvers involving a punji stick. He asserts that the right knee disorder has persisted over the years and is now disabling. The representative at the hearing asserted that the case should be remanded to permit another search at the National Personnel Records Center (NPRC) for service medical records pertinent to right knee treatment. (t. 3.) DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all evidence and material of record in the claims file, and for the following reasons and bases hereinafter set forth, it is the decision of the Board that the preponderance of the evidence is against an effective date earlier than July 19, 1988, for service connection for hypertension. For the following reasons and bases hereinafter set forth, it is the decision of the Board that the veteran has not submitted evidence of a well grounded claim for service connection for a right knee disorder. FINDINGS OF FACT 1. By a rating decision dated in February 1972, service connection was denied for hypertension. A February 1972 document of record indicates that the veteran was notified of the result of this decision, although the copy of the notice is incomplete and does not specifically contain his appellate rights. He did not appeal within one year thereafter. 2. A November 1992 Board decision granted service connection for hypertension, based on the receipt of new and material evidence. 3. A December 1992 rating decision assigned an effective date of July 19, 1988, the date of the reopened claim, for service connection for hypertension. 4. A right knee disorder was not shown in service; the veteran has not submitted competent evidence to link the post-service right knee disorder, first shown many years after service, to service. CONCLUSIONS OF LAW 1. An effective date earlier than July 19, 1988, for the grant of service connection for hypertension is not warranted. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 3.400(q)(1)(ii) (1994). 2. The claim for service connection for a right knee disorder is not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. EARLIER EFFECTIVE DATE Initially, the Board notes that the provisions of 38 U.S.C.A. § 5107 have been met, in that the claim is well grounded and adequately developed. The effective date of an evaluation and award of compensation based on a claim reopened after final disallowance, based on receipt of new and material evidence after the final disallowance, 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). The Board notes that by a rating decision dated in February 1972, service connection was denied for hypertension on the basis that it pre-existed service. A February 1972 document of record indicates that the veteran was notified of the result of this decision, although the copy of the notice is incomplete and does not specifically contain his appellate rights. He did not appeal within one year thereafter. This decision became final. 38 U.S.C.A. § 7105; Manio v. Derwinski, 1 Vet.App. 140, 145 (1991); 38 C.F.R. § 3.104(a). The Board notes that in the veteran's claim of a failure to notify him of his appellate rights in 1972, he is essentially attacking the finality of the 1972 rating decision. However, the finality of the 1972 rating decision was found in the Board's November 1992 decision which determined that new and material evidence had been received. This finding of finality is, itself, final, and may not be attacked on the basis of clear and unmistakable error. See Smith v. Brown, 35 F.3d 1516 (Fed. Cir. 1994). Although 38 C.F.R. § 19.109 (1972) indicated that notice of appellate rights was to be included in notification of a determination, 38 C.F.R. § 19.110 (1972) added that failure to notify the claimant of his right to appeal or of the applicable time limit for appealing did not extend the period for filing a notice of disagreement. In January 1979, the veteran submitted a claim for compensation based on service connection for hypertension. Subsequently, he was advised in a January 1979 letter from the RO that this claim had been finally denied in 1972, and that new and material evidence must be submitted to reopen it. According to the Department of Veterans Affairs (VA) copy of this letter, an enclosure included a VA Form 1-4107, Notice of Procedural and Appellate Rights. In a March 1979 letter, the veteran requested reconsideration of this decision and a hypertension check-up at a VA hospital. This letter was not signed. In May 1979, the RO advised the veteran that he had not signed his letter and that if he wished to disagree with the decision, then he should specifically state with what he disagreed. He was advised to sign all letters to the VA. He was again advised to submit new and material evidence. A Form 1-4107, Notice of Procedural and Appellate Rights, was enclosed. In August 1979, the RO again advised the veteran that if he wished to exercise his appellate rights, then he should state specifically with what he disagreed and sign his statement, and submit new and material evidence. Based on the veteran's failures to either comply with the RO's requests, or to comply otherwise with the applicable regulation for noting disagreement with rating decisions, the Board finds that the January 1979 refusal to reopen the claim for service connection for hypertension became final for lack of a notice of disagreement. See 38 C.F.R. § 19.113 (1978) and 38 C.F.R. § 19.113 (effective July 1, 1979) (a notice of disagreement must be in terms which can be reasonably construed as evidencing a desire for review of the determination). Further, even if the veteran was not notified of his appellate rights in 1979, as asserted, this would not have prevented the 1979 decision from becoming final. See 38 C.F.R. § 19.110 (1978) and 38 C.F.R. § 19.110 (effective July 1, 1979) (failure to notify the claimant of his right to appeal or of the applicable time limit for appealing did not extend the period for filing a notice of disagreement). For all of these reasons, the veteran's arguments regarding alleged failures of notice do not change the Board's decision herein. The representative submitted a signed statement dated July 19, 1988, in which he requested review of the February 1972 rating decisions. Administrative review in March 1989 determined that although hypertension did not pre-exist service, it was not shown in service, and chronic, compensable hypertension within one year after separation was not shown by the record in February 1972, because all high blood pressure readings had been obtained on one occasion. In April 1989, the veteran was again requested to submit evidence pertinent to his hypertension. He then submitted October 1973 private medical evidence documenting the presence of chronic, compensable hypertension. He also provided testimony regarding symptoms of hypertension in service. A September 1989 rating decision continued the denial of service connection for hypertension. This determination was appealed, and a November 1992 Board decision granted service connection for hypertension, based on the receipt of new and material evidence and a determination that the chronic hypertensive disease was also represented by the findings shown within one year after service. A December 1992 rating decision assigned an effective date for service connection for hypertension of July 19, 1988, the date of the reopened claim. In February 1994, the representative argued at the personal hearing that clear and unmistakable error in the 1972 rating decision warranted granting service connection from the date of the original claim. (t. 8.) As the effective date of an evaluation and award of compensation based on a claim reopened after a final disallowance will be the date of receipt of the new claim or the date entitlement arose, whichever is the later, the Board must initially determine which of these two events was the later. 38 C.F.R. § 3.400(q)(1)(ii). Clearly, as it has now been determined that hypertension was present from service, the date entitlement arose was earlier than the date of the new claim and, thus, the date entitlement arose may not serve as the effective date for service connection. The Board finds that the July 19, 1988, representative's letter is the earliest document which can be construed as the new claim, as earlier attempts to reopen the claim had failed. July 19, 1988, is, thus, the correct effective date for service connection for hypertension. An earlier effective date cannot be assigned. Clear and Unmistakable Error The Board will now address the claim of clear and unmistakable error. 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). 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, and CUE may not be found where it is merely alleged that the evidence should have been evaluated differently. Russell v. Principi, 3 Vet.App. 310 (1992). 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. In this case, the representative argued in September 1993 that the 1972 rating decision clearly and unmistakably erred in not evaluating the evidence to show hypertension as a disease entity, or chronic compensable hypertension. However, a different evaluation of the evidence cannot be the basis of a finding of CUE. The Board notes in passing that while the representative makes much of the fact that 5 different blood pressure readings were obtained at the January 1972 examination, no authority is cited for the assertion that hypertension as a disease entity can be diagnosed (and, thus, service-connected) based on blood pressure readings all obtained on the same day. At the personal hearing, the representative additionally argued that because the 1972 rating decision denied service connection for hypertension for the wrong reason, that is, based on a finding that it preexisted service and was not aggravated by service, the decision clearly and unmistakably erred. (t. at 8.) However, the representative has not stated how fixing this error would have changed the outcome of the decision based on the evidence then of record. As the decision was otherwise sustainable, because the evidence in February 1972 showed neither in-service hypertension nor chronic compensable hypertension within one year after service, the failure to state how this alleged error would have changed the outcome of the decision is fatal to the attempt to claim CUE. When a claim of CUE is not properly made out, it is not for appellate consideration. Fugo v. Brown, 6 Vet.App. 40. For all of the above reasons, the Board finds that an earlier effective date on the basis of CUE is not in order. II. SERVICE CONNECTION FOR A RIGHT KNEE DISORDER Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active wartime service. 38 U.S.C.A. § 1110 (West 1991). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1994). The threshold question to be addressed regarding the service connection claim is whether the veteran has presented a well grounded claim. If he has not presented a well grounded claim for service connection, then the appeal must fail and there is no duty to assist him further in the development of the claim. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78 (1992). Case law provides that although a claim need not be conclusive to be well grounded, it must be accompanied by evidence. A claimant must submit supporting evidence that justifies a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992); Dixon v. Derwinski, 3 Vet.App. 261, 262 (1992). The quality and quantity of the evidence required to meet this statutory burden of necessity will depend upon the issue presented by the claim. Where the issue is factual in nature, e.g., whether an incident or injury occurred in service, competent lay testimony, including a veteran's solitary testimony, may constitute sufficient evidence to establish a well-grounded claim under [38 U.S.C.A. §] 5107(a). See Cartright v. Derwinski, 2 Vet.App. 24 (1991). However, where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). A claimant would not meet this burden imposed by section 5107(a) merely by presenting lay testimony because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Consequently, lay assertions of medical causation cannot constitute evidence to render a claim well grounded under section 5107(a); if no cognizable evidence is submitted to support a claim, the claim cannot be well grounded. Tirpak, 2 Vet.App. at 611. If the claim is not well grounded, the claimant cannot invoke the VA's duty to assist in the development of the claim. See 38 U.S.C.A. § 5107(a) (West 1991); Rabideau v. Derwinski, 2 Vet.App. 141, 144 (1992). Grottveit v. Brown, 5 Vet.App. 91, 92-93 (1993). Service medical records reveal that at preinduction examination in November 1969, the veteran had no pertinent abnormality. Service medical records of March 1970 show that the veteran complained of the shoulders and "knee," although which knee was not identified. No physical findings or diagnoses were noted. At separation examination in December 1971, the veteran's lower extremities were examined and found to be normal. He reported that he was in good condition. On post-service VA examination of January 1972, there were no pertinent abnormalities noted. VA examination of the extremities in July 1989 showed that there was no edema, clubbing, or cyanosis. Peripheral pulses, reflexes, and range of motion were reported as good, as was strength of all four extremities. Some friction rub was noted in the right knee. At VA outpatient treatment in August 1992, the veteran reported that he could not straighten his right leg. After examination, the diagnosis was right knee dislocation, and he was referred to the orthopedic department. At orthopedic treatment the same month, the veteran gave a 20-year history of symptoms of a right knee injury during basic training. On the previous Friday morning, the knee had locked with flexion contracture of about 10 degrees with slight effusion. X-rays showed a questionable loose body in the intercondylar space. On examination, the knee could be forced to perform a range of motion from 2 degrees of extension to 125 degrees of flexion. There was small effusion. Patellar tracking was within normal limits. The knee was stable to varus and valgus stress. The Weber and anterior/posterior drawer tests were negative for abnormality. McMurray's test results were questionable. Quadriceps and hamstring strengthening for one month was recommended. A physical therapy note dated January 1993 indicated that the veteran had not been seen since August 1992 and "was not too enthusiastic [with physical therapy] at that time anyway." Accordingly, he was discharged from the physical therapy program. At his personal hearing in February 1994, the veteran testified that in basic training, he was using a punji stick against another combatant who also was armed with a punji stick, and that a wrestling match arising out of this resulted in a right knee injury. The knee was reportedly sore for the rest of his service. In Vietnam, he had been under mortar attack and was running for shelter in the dark when the knee popped out. Ever since then, the knee had been a "trick knee." The knee gave way very occasionally. (t. 4.) In about the middle of 1993, he had undergone VA hospitalization for the right knee. (t. 5.) He recalled that he had sought treatment after the knee had popped out in Vietnam, and that the company medic had given him an anti- inflammatory. (t. 6.) In 1974, he had undergone examination for a pilot's license and had mentioned his right knee problem at that time. (t. 6.) The knee had never been disabling until the past year. (t. 7.) The representative argued that additional service medical records should be sought, although it is noted that as recently as May 1989, the NPRC certified that it had forwarded to the RO all available service medical records. After review of the evidence, the Board finds that there is no objective evidence of any knee injury or disorder in service, nor of any knee injury or disorder for years after service. The issue is whether the veteran's dislocation of the right knee with questionable loose body began in service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(d). The answer to this question requires medical findings because the problem first became manifest years after service. The Board's decision makers "may consider only independent medical evidence to support their [medical] findings." Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991). The veteran, as a medically untrained person, is not qualified to render an opinion of evidentiary weight as to the etiology of his right knee dislocation with questionable loose body. See Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992). The Board has considered the testimony that the knee was injured a second time in service in what may have been a combat scenario. Assuming arguendo that this is so, medical evidence linking the current right knee condition, first shown years after service, to such combat injury would still be required to make the claim well grounded. The medical treatment records and the VA examinations are silent for any etiological link between the veteran's post- service right knee problem and service. Under the circumstances of this appeal, competent evidence of an etiological relationship between the veteran's current right knee condition and service must be presented in order for the claim to be well grounded. Such evidence is not of record. Accordingly, the claim is not well grounded, and no further duty to assist in the development of the claim, or to address the related arguments, arises. Rabideau v. Derwinski, 2 Vet.App. 141 (1992). See Jones v. Brown, 7 Vet.App. 134 (1994). ORDER An effective date earlier than July 19, 1988, for service connection for hypertension is denied. The claim for service connection for a right knee disorder is dismissed. M. SABULSKY 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.