BVA9503947 DOCKET NO. 93-06 625 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Medical and Regional Office Center in Fort Harrison, Montana THE ISSUE Entitlement to an effective date prior to May 24, 1991, for a grant of service connection for multiple sclerosis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD John R. Pagano, Counsel INTRODUCTION The veteran had active military service from February 1969 to June 1977. This matter arises from a rating decision rendered in November 1992 by the Department of Veterans Affairs (VA) Fort Harrison, Montana, Medical and Regional Office Center (RO). Therein, service connection was granted for multiple sclerosis, effective May 24, 1991. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the VA erred in denying him entitlement to the benefit sought on appeal. More specifically, he asserts that because he developed multiple sclerosis during military service, disability compensation should be awarded from the date of his prior claim in 1980. He argues that VA committed clear and unmistakable error when it denied service connection for multiple sclerosis in late 1981, because the evidence then of record confirmed the presence of that disability. 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. Based upon its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that May 24, 1991, is the earliest date from which service connection for multiple sclerosis can be granted. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The RO denied entitlement to service connection for multiple sclerosis by rating dated in November 1981. The veteran was notified of that determination by letter dated in February 1982; however, he did not initiate an appeal within one year thereof. 3. The denial of service connection rendered by the RO in November 1981 was supported by the evidence then of record. 4. The veteran's reopened claim of entitlement to service connection for multiple sclerosis was received by VA on May 24, 1991; medical evidence later submitted pursuant to that claim confirmed the presence of multiple sclerosis. CONCLUSIONS OF LAW 1. The RO's November 1981 rating decision which denied entitlement to service connection for multiple sclerosis was not clearly and unmistakably erroneous, was not timely appealed, and is, therefore, final. 38 U.S.C.A. §§ 301, 310, 312, 3007, 4005 (1976); 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 3.307 (1981); 38 C.F.R. § 3.105(a) (1994). 2. The proper date for an award of service connection for multiple sclerosis is May 24, 1991, the date that the veteran's reopened claim was received by VA. 38 U.S.C.A. §§ 5107, 5110 (West 1991); 38 C.F.R. §§ 3.151(a), 3.155(a), 3.156(a), 3.400(q)(1)(ii) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a preliminary matter, the Board finds the veteran's claim to be well grounded; that is, it is plausible and capable of substantiation. In addition, the claim has been fully developed. As such, VA has satisfied its duty to assist the veteran as mandated by 38 U.S.C.A. § 5107(a) (West 1991). I. Factual Background The veteran first applied for service connection for multiple sclerosis in December 1980. Pertinent evidence available to the RO in conjunction with that claim included the veteran's service medical records; the report of his hospitalization at Walther Memorial Hospital in 1979; a report of his examination by J. Du Pre, M.D., dated in April 1981; and reports of the veteran's observation, evaluation, and examination at a VA medical center during 1981. The veteran's service medical records were silent regarding the presence of multiple sclerosis. Although the veteran had had a number of complaints during service regarding a possible neurological abnormality, no underlying disease process was found. Similarly, during the veteran's private hospitalization in 1979, no neurological pathology was confirmed. The veteran was subjected to a variety of clinical tests, but these failed to pinpoint the source of his various complaints. Multiple sclerosis was suspected, but not confirmed. A statement from Dr. Du Pre, dated in early 1981, indicated that a neurological examination of the veteran had been within normal limits. So, too, were the findings during a VA neurological examination conducted in March 1981. Because of the veteran's various physical complaints, multiple sclerosis, by history, was diagnosed; however, it was found to be unsupported by the clinical findings. In September 1981, the veteran underwent a period of observation and evaluation during a VA hospital stay. The veteran's complaints were similar to those that he had expressed previously. He indicated that he was experiencing blurred vision, in addition to weakness and a tingling sensation in his lower extremities following exertion. Various neurological studies were undertaken, but, again, these were within normal limits. The final diagnosis was suspected demyelinating disease of the central nervous system, unconfirmed. The RO reviewed the veteran's claim of entitlement to service connection for multiple sclerosis in light of the foregoing. By rating dated November 30, 1981, the RO denied the veteran service connection for multiple sclerosis because the disease process claimed had not been definitively diagnosed. The veteran was notified of that determination, and of his appellate rights, by letter dated in January 1982. In July of that year, the veteran indicated in writing that "[a]lthough I do not agree with your determination I have no plans for further follow-up in this matter." On May 24, 1991, the RO received a letter from the veteran in which he indicated that he wished to reopen his claim for service connection for multiple sclerosis. In conjunction therewith, he submitted the reports of various multiple resonance imaging tests conducted by a private radiologist in February 1991. These reflected findings suspicious for a demyelinating process such as multiple sclerosis. A letter subsequently received from M. D. Goldin, M.D., dated in September 1991, indicated that the veteran had complained of a "recent exacerbation of his multiple sclerosis with loss of vision of the left eye approximately two weeks ago." In response to that, and other private medical evidence submitted by the veteran in conjunction with his reopened claim, VA scheduled a neurological examination of the veteran in March 1992. Following a variety of diagnostic procedures, a VA neurologist diagnosed multiple sclerosis which was both chronic and progressive. On the basis of those findings and the other evidence submitted in conjunction with the veteran's reopened claim, the RO, in a rating dated in November 1992, granted service connection for multiple sclerosis effective May 24, 1991, the date that the veteran's reopened claim had been received. On December 14, 1992, the veteran submitted a statement in which he indicated that, "I disagree with the effective date on my SC multiple sclerosis. I believe the correct effective date is January 1980." II. Analysis The veteran's primary contention is that the RO erred when it denied him service connection for multiple sclerosis in November 1981. Because the record indicates that the veteran was duly informed of that determination but did not timely appeal, that decision is final, absent clear and unmistakable error. 38 U.S.C.A. § 4005 (1976) (now 38 U.S.C.A. § 7105) (West l99l); 38 C.F.R. § 3.105(a). Recent decisions rendered by the United States Court of Veterans Appeals (Court) have both validated and defined "clear and unmistakable" error as it applies to decisions by the RO. In Russell v. Principi, 3 Vet.App. 310, 313-314 (1992), the Court set forth a three-pronged test to determine whether clear and unmistakable error existed in a prior determination. The Court held that to establish clear and unmistakable error: (1) "[e]ither the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a 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 a sort which, "had it not been made, would have manifestly changed the outcome at the time it was made;" and (3) the error must be based upon the record and the law as it existed at the time of the prior adjudication in question. Id. Later, in the case of Fugo v. Brown, 6 Vet.App. 40, 44 (1993), the Court further qualified that test, holding that any appellant wishing to reasonably raise clear and unmistakable error must do so with "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 on its face, persuasive reasons must be given as to why the results would have been manifestly different but for the alleged error. It is within the foregoing context that the Board will examine the legal and factual predicates for the RO's November 1980 determination, as well as the veteran's contentions with regard thereto. The law extant at the time the RO rendered its November 1981 determination specified that service connection was to be granted for any disease or injury or aggravation of a preexisting disease or injury incurred in line of duty during active military service. 38 U.S.C.A. § 310. Moreover, in the case of multiple sclerosis, service connection was to be granted if such a disease process became manifest to a degree of 10 percent or more within seven years from the date of separation from active service. 38 U.S.C.A. §§ 301, 310, 312 (1976); 38 C.F.R. § 3.307(a)(3) (1981). The record as constituted when the RO rendered its November 1981 decision does not indicate that the applicable statutory and regulatory provisions were incorrectly applied or that the correct facts were unavailable. Although multiple sclerosis was suspected based upon various symptomatology alluded to by the veteran during hospital and outpatient treatment rendered during 1979 and 1981, all neurological studies conducted until then had been within normal limits. The Board notes that these facts were before the RO when it rendered its decision, and that the pertinent information was cited as part of that determination. In effect, the clinical evidence then of record was, at best, equivocal regarding the presence of the disability claimed. Such evidentiary equivocation is insufficient to result in the type of "undebatable" error that, if not made, would have manifestly changed the outcome. See Fugo v. Brown, 6 Vet.App. 44 (1993). Thus, even if the Board believed that the RO had misevaluated or misinterpreted the evidence available to it when it rendered its November 1981 decision, such misevaluation or misinterpretation does not constitute the type of administrative error which is reversible under 38 C.F.R. § 3.105(a). See Damrel v. Brown, 6 Vet.App. 242, 246 (1994). The question remains whether, absent a finding of clear and unmistakable error in the RO's prior rating decision, there exists any other legal avenue that might lead to an earlier effective date for a grant of service connection for multiple sclerosis. The letter received from the veteran by the RO on May 24, 1991, constituted a reopened claim in both form and substance. See 38 C.F.R. §§ 3.151(a), 3.155(a), 3.156(a), 3.400(q)(1)(ii). The latter regulation provides that the effective date of a grant of benefits based upon new and material evidence following a final disallowance (as in this case because of the RO's November 1981 denial) shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. Because the veteran filed a reopened claim on May 24, 1991, that is the earliest date from which service connection can be granted. Parenthetically, it is conceded that the veteran had the chronic disability at issue since military service; otherwise, there would be no basis upon which to grant service connection. However, such a factual predicate, in and of itself, does not warrant a grant of service connection prior to the date of the reopened claim. ORDER An effective date prior to May 24, 1991, for a grant of service connection for multiple sclerosis is denied. JACQUELINE E. MONROE 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.