Citation Nr: 0005327 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 97-03 937 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fort Harrison, Montana THE ISSUES 1. Whether there was clear and unmistakable error (CUE) in the Medical and Regional Office Center rating decision dated April 1966 which awarded service connection for a psychiatric disability, granting a 10 percent evaluation, and did not consider the issue of service connection for varicose veins. 2. Whether there was CUE in the Medical and Regional Office Center rating decision dated June 1987, that did not increase the evaluation of the veteran's service-connected psychiatric disability, evaluated at that time as 30 percent disabling. 3. Whether there was CUE in the Medical and Regional Office Center rating decision dated March 1994, that failed to find CUE in the rating decision of August 1993, which had granted the veteran a 100 percent disability evaluation for his service-connected psychiatric disability from November 9, 1989. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD John J. Crowley, Counsel INTRODUCTION The veteran served on active duty from November 1960 to November 1963 and from May 1965 to December 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Medical and Regional Office Center (hereinafter referred to as the Regional Office or "RO"). One of the matters the Board must address is which issue or issues are properly before it at this time. In written argument prepared by the veteran's representative in September 1999, it was contended that the issues before the Board at this time are whether the decision of April 15, 1966, to deny service connection for bilateral varicose veins contained CUE. It was also contended the issue of entitlement to an earlier effective date prior to March 20, 1987, for service-connected varicose veins, rated at 30 percent disabling, was also before the Board at this time. A September 1999 statement prepared by the veteran's spouse to clarify the pending issues before the Board at this time has also been presented. Under the provisions of 38 U.S.C.A. § 7105(a) (West 1991), an appeal to the Board must be initiated by a notice of disagreement and completed by a substantive appeal after a statement of the case is furnished to the veteran. In essence, the following sequence is required: There must be a decision by the RO, the veteran must express timely disagreement with the decision, VA must respond by explaining the basis of the decision to the veteran, and finally the veteran, after receiving adequate notice of the basis of the decision, must complete the process by stating his argument in a timely-filed substantive appeal. See 38 C.F.R. §§ 20.200, 20.201, 20.202, and 20.203 (1999). The record in this matter reflects that in the past, the veteran filed a substantive appeal regarding the schedular evaluation of his service-connected psychiatric disability. Since this substantive appeal was filed, however, the veteran has been granted a schedular 100 percent disability evaluation for his service-connected psychiatric disability. This is the maximum award provided by the rating schedule. Accordingly, this claim has been granted and, under the guidance supplied by the U.S. Court of Appeals for Veterans Claims (Court) in AB v. Brown, 6 Vet. App. 35 (1993) and the United States Court of Appeals for the Federal Circuit in Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997), no other outstanding question of law or fact concerning the provision of benefits under the law administered by the VA remains unresolved with regard to this issue. Absence such questions, there is no matter over which the Board may exercise its jurisdiction. 38 U.S.C.A. §§ 510(a), 7104 (West 1991). Consequently, this claim is not before the Board at this time. In October 1996, the veteran filed a timely substantive appeal to an August 1996 statement of the case which addressed the issues of CUE in rating decisions dated June 1987 and March 1994. The March 1994 rating determination considered the issue of whether there was CUE in the August 1993 rating determination that had awarded the veteran a 100 percent disability evaluation from November 9, 1989. Accordingly, the Board will address the issue of whether CUE exists within the RO's rating determinations of June 1987, and March 1994. In October 1998, the veteran filed an additional timely substantive appeal regarding a March 1998 statement of the case which addressed the issue of whether CUE exists within an April 1966 rating determination. In addition, in July 1998, the veteran again filed a timely substantive appeal regarding a June 1998 statement of the case which addressed the issue of the evaluation of varicose veins from December 4, 1965. Accordingly, based on the statements of the case issued in March and June 1998, the Board must now address the issue of whether CUE exists within the April 1966 rating determination regarding both the evaluation of the veteran's service-connected psychiatric disability and the issue of whether this rating determination should have considered the issue of service connection for varicose veins. Consideration of the issue of CUE within the RO rating decision dated April 1966, which awarded service connection for a psychiatric disability (awarding a 10 percent evaluation) and did not consider the issue of service connection for varicose veins will take into consideration both issues raised by the statements of the case dated March and June 1998. Based on a review of numerous statements submitted by both the veteran and his spouse, it is clear that their central contentions in this case is that the veteran should have been awarded a compensable evaluation for his service-connected varicose veins in April 1966 as well as a 100 percent evaluation from his discharge from service. The Board will address these central issues. The procedural posture of these matters also places on appeal the determination that a compensable evaluation was not warranted for varicose veins was not warranted as of December 4, 1965. This will also be addressed. The Board notes that the September 1999 statement of the veteran's spouse on behalf of the veteran is very difficult to interpret. The statement intermingles various assertions of fact with exceedingly difficult to follow arguments of law, much of which appear to be grounded in a basic theory of retroactive application to rating determinations in the 1960's of post-1989 case law from the Court. As stated by the Court, the Board must review all issues that are reasonably raised from a liberal reading of the veteran's substantive appeals. EF v. Derwinski, 1 Vet. App. 324, 326 (1991). Further, as has been noted by the Court, the statute, 38 U.S.C.A. § 7105 (West 1991), does not impose technical-pleading requirements. In this case, however, the Board has done its best to decipher the pleadings for "reasonably raised" issues, but finds no issue beyond what is addressed herein has been "reasonably raised." Further, the Board may not entertain an application for review on appeal unless it conforms to the law. 38 U.S.C.A. § 7108 (West 1991 & Supp. 1998). In the June 1999 substantive appeal, the veteran makes reference to inextricably intertwined issues. The Board finds issues before the Board at this time are not inextricably intertwined with any other claim not before the Board at this time. See Parker v. Brown, 7 Vet. App. 116 (1994). FINDINGS OF FACT 1. The veteran had periods of active service from November 1960 to November 1963 and from May 1965 to December 3, 1965. 2. In a June 1965 examination, the veteran stated that he was in excellent health, no defects were noted, and neither the veteran nor his examiner made reference to varicose veins. 3. In December 1965, the veteran filed an original claim for VA compensation seeking service connection for a psychiatric disability. At that time, the veteran made no reference to varicose veins; he denied ever having filed a prior claim for any benefit with VA and no claim for service connection for varicose veins was filed prior to January 1992. 4. In an April 1966 rating determination, service connection was awarded for an undifferentiated schizophrenic reaction. The veteran was awarded a 10 percent evaluation from December 4, 1965. 5. The April 1966 RO rating decision as to the effective date of the award of service connection and as to the evaluation of the service-connected psychiatric disability was supported by evidence then of record, and it is not shown that the applicable statutory and regulatory provisions existing at that time were ignored or incorrectly applied. 6. Based, in part, on a July 10, 1974, VA treatment report, the RO, in an October 1974 rating determination, awarded the veteran a 30 percent evaluation for his service-connected psychiatric disability from July 10, 1974. 7. The October 1974 RO rating decision was supported by evidence then of record, and it is not shown that the applicable statutory and regulatory provisions existing at that time were ignored or incorrectly applied. 8. In a claim received by VA on March 25, 1987, the veteran requested a reevaluation of his service-connected psychiatric disability. He made no reference to varicose veins. No claim, formal or informal, for increase was of record for one year prior to the date of this claim. 9. In a June 1987 rating determination, the RO found that the evidence at that time did not support an evaluation in excess of 30 percent for the veteran's service-connected psychiatric disability. 10. The June 1987 rating decision was supported by evidence then of record, and is not shown that the applicable statutory and regulatory provisions existing at that time were ignored or incorrectly applied. 11. On November 9, 1989, the veteran was hospitalized due to his psychiatric disability. 12. At a hearing held before a hearing officer at the RO in May 1991, the veteran discussed his service-connected psychiatric disability. As a result, in a September 1991 rating determination, the veteran was awarded a temporary total disability evaluation from November 9, 1989, to December 31, 1989. It was also determined that the veteran's service-connected psychiatric disability became 70 percent disabling on January 1, 1990. 13. In an August 1993 rating determination, the RO awarded the veteran a 100 percent disability evaluation due to his service-connected psychiatric disability. The total disability evaluation was awarded from November 9, 1989. 14. The March 1994 rating determination found no CUE in an August 1993 rating determination. 15. In a March 1998 rating determination, the RO found CUE in the March 1994 rating determination that found no CUE in the August 1993 rating determination. The March 1998 rating determination awarded a schedular 100 percent evaluation for a psychiatric disability from March 25, 1987, based on CUE. 16. In a second March 1998 rating decision, the RO determined that CUE exists in a RO rating decision dated February 1996 with respect to the effective date of the assignment of service-connection for bilateral varicose veins. It was determined that the proper effective date of service connection for bilateral varicose veins, and a noncompensable evaluation, should have been December 4, 1965, instead of January 7, 1992. 17. The second March 1998 rating determination as to the award of a noncompensable evaluation for varicose veins from December 4, 1965, did not contain an applicable of statutory and regulatory provisions existing at that time or factual conclusions that could have supported the award of additional benefits to the veteran. 18. The clear weight of the probative evidence showed there were no current disabling manifestations of varicose veins at the time of separation from service or at the time of the VA examination of March 1966. CONCLUSIONS OF LAW 1. The RO rating decision of April 1966 did not contain clear and unmistakable error in denying a rating in excess of 10 percent for the service-connected psychiatric disability. 38 C.F.R. §§ 3.105(a) (1999). 2. The decision not to award an effective date for the grant of service connection for varicose veins, prior to December 4, 1965, including from the day after separation from the first period of active service, did not contain CUE. The question of whether CUE existed in the April 1966 rating action as to the effective date of the award of service connection is otherwise moot. 38 C.F.R. §§ 3.105(a) (1999). 3. The RO rating decision of June 1987 did not contain CUE. 38 C.F.R. §§ 3.105(a) (1999). 4. The RO rating of March 1994 was overturned by subsequent rating actions. To the extent that neither the March 1994 nor subsequent rating determinations have failed to award an effective date of an award of a 100 percent evaluation for a psychiatric disorder prior to March 25, 1987, they do not contain CUE. 38 C.F.R. §§ 3.105(a) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Background The veteran served on active duty with the United States Army from November 1960 to November 1963. The veteran also served from May to December 3, 1965 with the United States Navy. Service medical evaluations in November 1960, June 1962, and May, June, and October 1965 fail to make reference to varicose veins. In June 1965, the veteran specifically noted that he was in "excellent health." Records from the first period of service show the claimant was hospitalized in February 1962 for what was diagnosed as acute, severe, schizophrenic reaction. An initial assessment was that impairment was marked. After treatment, the condition was deemed to be in good remission. It was assessed as producing no to mild impairment for further service and the claimant was returned to duty in June 1962. In October 1965, a diagnosis of schizophrenic reaction, paranoid type, chronic was noted. A Medical Board Report in November 1965 reflects a diagnosis of schizophrenic reaction, paranoid type that was deemed to have existed prior to service and was not aggravated by service. The history recorded at that time was that the claimant was hospitalized during his prior period of active service because he was hearing accusing voices and was expressing ideas of reference. After six months of hospitalization he was returned to duty. He failed to report this at the time of examination for entry into his second period of service. He was hospitalized in October 1965. After observation and treatment, it was concluded that the diagnosis was paranoid schizophrenia in partial remission, manifested by delusions, hallucinations, in appropriate affect concrete interoperations and loose association. Impairment in early November was described as marked and he was unfit for further duty. The veteran filed his initial claim for VA compensation in December 1965. At that time, the veteran sought service connection for a nervous condition. He made no reference to varicose veins by name or symptoms. In a March 1966 VA physical evaluation, the veteran made no reference to varicose veins. The clinical examination noted that no varicose veins were present. A March 1966 VA psychiatric evaluation also made no reference to varicose veins. On the March 1966 VA psychiatric examination, the veteran reported he was performing full time employment as a radio and television repairman apprentice. He has been so employed since February 1, and had lost no time from work. He reported no current problems. He described appetite and sleep as good, He had one episode of fainting on the job when they failed to make an appropriate electrical connection. He was oriented to time, person and place. He did not perform serial 7s correctly after 93 and could not name the governor. He denied depression, suicidal ideas, suicidal acts or auditory hallucinations. He was evasive about such symptoms in the past. He considered himself nervous at times and became shaky. No problems with loss of temper or weeping. He reported limited social participation. Judgment was poor, affect was inappropriate frequently and insight was disorganized. The impression was that his concentration and memory were both impaired. He had additional psychiatric symptomatology that he "tend[ed] to deny." He was receiving no treatment and prognosis was guarded. The diagnosis was schizophrenic reaction, undifferentiated type, in partial reemission, manifested by flattening of affect, some inappropriate laughter, tendency to be withdrawn, impaired concentration and memory and a general insecurity with pervaded his whole being. He was considered competent to handle Government funds. Based on the VA evaluation cited above, in an April 1966 rating decision, service connection for a psychiatric disability was granted. The veteran was found to be 10 percent disabled due to this disability. At that time, no reference was made to varicose veins because the veteran had initiated no claim for such a disability. Additional testing of the veteran's psychiatric condition was performed. A July 10, 1974, VA outpatient treatment report indicated that the veteran's condition had worsened. This was later confirmed in an August 1974 home visit from a VA social worker. As a result, in an October 1974 rating determination, the veteran's service-connected psychiatric disability was increased to 30 percent disabling from July 10, 1974, the day of his treatment at the VA Medical Center. In a claim dated March 23, 1987, and received by VA on March 25, 1987, the veteran requested an increase in his service- connected psychiatric disability. At that time, he made no reference to varicose veins. He reported treatment at a VA facility; however, the records of that treatment in March 1987 did not reflect treatment for the service-connected disability. In a June 1987 rating determination, the RO found that the evidence did not show treatment for the veteran's service-connected conditions. The RO explained to the veteran in a letter dated July 1987, that they could not increase the evaluation of any service-connected disability without evidence that the disability had become more severe. The veteran filed no notice of disagreement with this determination. The veteran filed additional claims and these claims were addressed by subsequent rating determinations. These rating decisions are not at issue before the Board at this time. On November 8, 1989, the veteran was hospitalized due to his psychiatric disability. As a result of this treatment report as well as other medical records, the RO awarded the veteran a 100 percent disability evaluation due to his psychiatric disability in an August 1993 rating determination. The veteran was awarded this total disability evaluation from November 9, 1989, the date of his VA hospitalization. The veteran submitted a notice of disagreement to the August 1993 rating decision in February 1994. At this time, the veteran contended that he was entitled to a total disability rating from September 2, 1987. The veteran, through his representative, was referring to a September 2, 1987, claim filed by the veteran seeking an increase in his disability evaluation. However, this request for increased compensation was addressed by the RO in a February 1990 rating decision in which it was determined that the veteran warranted a temporary total disability evaluation from November 9, 1989, until December 31, 1989. The veteran was provided notice of this determination in March 1990. The veteran did not appeal this determination. Nevertheless, in a March 1994 rating determination, the RO determined that CUE existed within the August 1993 rating determination. The RO found that the veteran should received a 100 percent evaluation for his service-connected psychiatric disability from September 2, 1987, the date the veteran filed his claim. Notice of this decision was provided to the veteran in April 1994. At a hearing held before a hearing officer at the RO in May 1991, the veteran discussed his service-connected psychiatric disability. As a result, in a September 1991 rating determination, the veteran was awarded a temporary total disability evaluation from November 9, 1989, to December 31, 1989. It was also determined that the veteran's service- connected psychiatric disability became 70 percent disabling on January 1, 1990. In a substantive appeal received on January 7, 1992, the veteran noted that he developed severe varicose veins after a fall during his active service. The record discloses no claim or action by the veteran that could be construed as a claim for service connection for varicose veins prior to this date. Simply stated, the veteran never filed a claim with VA seeking service connection for varicose veins prior to January 7, 1992. Additional medical records were obtained by the RO. They include numerous statements from the veteran indicating that he was not employed as well as medical records indicating sporadic treatment of his psychiatric disability, including the November 9, 1989, hospitalization. In light of the results of a June 1993 VA psychiatric evaluation, the RO, in an August 1993 rating decision, awarded the veteran a 100 percent disability evaluation for his service-connected psychiatric disability from November 9, 1989. The veteran and his spouse continued their disagreements with the RO over the evaluation of the veteran's service-connected disabilities. In an undated statement, the veteran contended that the VA owed him for 23 years and 10 months of retroactive pay. It was contended that the RO erred in initially awarding the veteran only a 10 percent evaluation for his psychiatric disability in 1966. The veteran made reference to the fact that his earnings from his discharge from active service onward essentially proved that he was totally disabled at this time. The veteran noted that he had only one job after his discharge from active service that lasted only one year. It was also noted that his father had informed him that the VA had paid for his hospital bill for his varicose vein surgery. The veteran maintained that by this action the VA had essentially determined that his varicose veins were service connected. It also was contended that the initial rating should have been based on his service medical records, and that his claim should have been reopened and that the condition re-rated when the condition reoccurred again after surgery. It was further contended at this time that he had a discussion with his VA doctors about his veins and that this discussion should have been considered a petition to reopen the varicose veins issue as provided in 38 C.F.R. § 3.157(b)(1). It was contended that varicose veins should have been considered an inferred condition. The veteran cited EF v. Derwinski, 1 Vet. App. 324 (1991) and Douglas v. Derwinski, 2 Vet. App. 435 (1992) in support of this conclusion. In a February 1996 rating determination, service connection was awarded for bilateral varicose veins. The veteran was awarded service connection from January 7, 1992, the day the veteran made reference to this issue with the RO. A 30 percent evaluation was awarded. In a March 1996 substantive appeal, it was contended that the evidence of record clearly established that the veteran was entitled to a 100 percent rating from March 23, 1987, since his claim was in continuous prosecution from that date. In this regard, the statements from the veteran and his spouse are not always consistent regarding what issue the veteran is pursuing or as to what compensation benefit the veteran is claiming. Earlier in this substantive appeal, for example, it is appears that the veteran was withdrawing the issue of entitlement to an earlier effective rating of 100 percent on his psychosis from March 28, 1995, but this is also unclear. A statement of the case regarding the issue of CUE regarding rating decisions dated June 1987 and March 1994 was issued by the RO in August 1996. Despite the veteran's previous statements, an additional substantive appeal was again filed in October 1996. The veteran referred to substitutions of previously submitted appeals and other issues not before the Board at this time. In a May 1997 statement, the veteran requested reconsideration of an informal joint claim for relief for administrative errors. At this time, the veteran cited numerous VA regulations that had no particular relevance to his claims. It was contended the VA had made 19 errors preparing a statement of the case on the issue of whether an error had been made by not using March 23, 1987, as the effective date of the veteran's claim for increased compensation. The veteran requested an extension of time to address these issues. In August 1997, the RO contacted the National Personnel Records Center (NPRC) to determine whether records the veteran had sent to the RO were verified as correct. In September 1997, the NPRC provided the RO with additional service medical records regarding the veteran which noted scars which appear to be associated with the veteran's bilateral varicose veins. It appears that these records were not initially submitted to the RO by the NPRC when the veteran initially filed his claim in the 1960's. An additional substantive appeal was received in October 1997. The arguments regarding the veteran's case are extremely unclear. In November 1997, the veteran contended that his ex-spouse, without his knowledge, provided VA with evidence in 1986 that he was totally disabled and collecting Social Security. In a March 1998 rating decision, the RO determined that CUE existed in a RO rating decision dated March 29, 1994. The veteran was awarded a 100 percent disability evaluation from March 25, 1987. In a second March 1998 rating determination, it was determined by the RO that CUE existed within the February 13, 1996, RO decision. At that time, the RO stated, in pertinent part: Under the current law, when and if VA receives additional service medical records that are not previously considered, VA is to treat these records as if they were received back when an original claim was filed with respect to assignment of an effective date if entitlement is found. In this case, since service connection was conceded for bilateral varicose veins, the decision maker at the time of the 2-13-96 decision, should have assigned an effective date of service connection for varicose veins as the date following service (12-4-65). This Rating Decision is taking action to correct this error. In this second March 1998 rating determination, the RO awarded the veteran a noncompensable evaluation for bilateral varicose veins from December 4, 1965, the day after the veteran's discharge from his second period of active service, and a 30 percent evaluation from March 20, 1987. The veteran and his spouse continued to file substantive appeals regarding these issues. The veteran also filed addendums to previously submitted substantive appeals and additional statements regarding his claims. In March 1998, the veteran claimed CUE in an RO decision based on Public Law 105-111. The Board notes that this law addresses CUE in Board decisions, and it has no relevance to RO rating decisions. At that time, the veteran claimed CUE in the April 1966 rating determination. It was contended that the VA disregarded important facts and laws in making the April 1966 decision. In June 1998, the veteran contended that the VA had a duty to rate his service-connected varicose veins in the 1960's. A statement of the case regarding the issue of the evaluation of varicose veins from December 4, 1965, was issued by the RO in June 1998. An additional substantive appeal was filed in July 1998. In March 1999, the veteran's spouse prepared an addendum to a notice of disagreement. She contended that service medical records were considered received prior to the VA's April 15, 1966, decision and were "new and material" evidence which complemented VA's general medical examination of the veteran in March 1966 and the veteran's Army discharge physical examination which contained a line-of-duty determination of the veteran's varicose veins. It was requested that the VA reconsider the beginning date of the veteran's 100 percent disability rating. The veteran and his spouse submitted a series of additional statements regarding claims of CUE within assorted rating determinations. In a September 1999 statement, it was maintained that the veteran wished to ensure that the VA understood the pending issues and the applicable laws and regulations. It was contended the VA had incorrectly phrased the issue in the decision of March 1995. However, the veteran again made little reference to what he was seeking within this claim. It was stated that it was the veteran's contention that the December 1965 application for compensation and pension was a claim for the "maximum benefits provided by law and regulations." Accordingly, it appears that the veteran is seeking a total disability evaluation from his discharge from active service in the 1960's. The veteran's spouse referred to the presumption of soundness, new and material evidence, an erroneous line-of- duty determination, an inextricably intertwined issue, and assorted regulations that have no relevance to this claim. It was contended that it was the veteran's belief that the VA should have developed an implied or inferred claim for service connection for the veteran's varicose veins based on the VA's receipt of evidence which showed that the veteran developed varicose veins in the United States Army. Analysis Under 38 C.F.R. § 3.105(a), a prior decision must be reversed or amended where evidence establishes "clear and unmistakable error." For CUE error to exist: (1) "[e]ither the correct facts, as they were known at that 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 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 CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992)). It is important to distinguish between a case where the RO revises a previous RO decision based on new evidence and a case where CUE is found. The Court has consistently stressed the rigorous nature of the concept of CUE. "Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts; it is not mere misinterpretation of facts." Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). CUE "are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made." Russell, 3 Vet. App. at 313. "It must always be remembered that CUE is a very specific and rare kind of 'error.'" Fugo v. Brown, 6 Vet. App. 40, 43 (1993). A disagreement with how the RO evaluated the facts is inadequate to raise the claim of clear and unmistakable error. Luallen v. Brown, 8 Vet. App. 92, 95 (1995). The Board has attempted, to the best of its ability, to sift the pleadings by the claimant to ascertain the nature of the allegations of legal and factual errors in the multiple RO determinations under challenge. This task has been particularly difficult as a large portion of the claimant's submissions lack clarity as to the nature of the alleged error, the determination that allegedly was the product of error, and the explanation of how, even if error was present, the outcome would have been manifestly different. The record also shows that subsequent determinations by the RO granting benefits have rendered moot many of the actions challenged by the claimant. The Board will discuss each of the determinations under challenge on the basis of CUE that has been developed for appellate review. The April 1966 Rating Determination Varicose Veins The veteran was separated from his second period of service on December 3, 1965. In December 1965, the veteran filed an original claim for VA compensation. That claim contains no reference whatsoever to varicose veins. Under the law in effect at that time, a specific form prescribed by the Administrator (or jointly with the Secretary of Health, Education, and Welfare, as prescribed by section 3005 of this title) must be filed in order for benefits to be paid or furnished to any individual under the laws administered by the Veterans Administration. 38 U.S.C.A. § 3001 (1964); 38 C.F.R. § 3.151 (1966). (Section 3005 referred to claims for social security and dependency and indemnity compensation). The April 1966 rating determination did not address a claim for service connection for varicose veins. The veteran first submitted a claim for service connection for varicose veins in on January 7, 1992. In a March 1998 rating action, the RO granted service connection for varicose veins with an effective date December 4, 1965. The RO assigned a noncompensable evaluation for that disability from December 4, 1965, and a 30 percent evaluation from March 20, 1987. In reaching these determinations the RO found that there had not been CUE with respect to the April 1966 rating action since there was no claim for service connection for varicose veins pending at that time. The RO further concluded that the available service medical records were silent concerning varicose veins and the March 15, 1966, VA examination disclosed no varicose veins. The RO did find, however, that "new and material" evidence had been received in the form of additional service department records initially received in the 1990's. The RO cited regulatory authority concerning the acquisition of "new and material evidence" in the form of additional service medical records. 38 C.F.R. § 3.156. The RO believed that this authority required that the RO go back and reconsider the April 1966 rating determination as though the additional service medical records were of record at that time. The RO provided no explicit authority for the proposition that the April 1966 rating determination had to be reviewed as though a claim for service connection for varicose veins was pending at the time. With respect to these determinations, the Board finds that there is no statutory or regulatory authority for a grant of an effective date of an award of service connection for varicose veins prior to December 4, 1965. The law provided then, as it does now, that the earliest effective date for a grant of service connection is the day after the date of separation from service, if a claim for service connection is received within one year of the date of separation. 38 U.S.C.A. § 3010(b) (1964); 38 C.F.R. § 3.400(b) (1966). There is no credible evidence that any claim for compensation benefits was submitted following the first period of service, much less a claim for service connection for varicose veins. No evidence has been submitted to support the bare evidentiary assertions of the veteran apparently to the effect that a claim for service connection for varicose veins was filed with VA following the first period of service. There is on the other hand highly credible and contemporaneous evidence that no such claim was filed. On his December 1965 application, the veteran checked a block to indicate expressly that he had not filed a prior claim for any benefit with VA. Moreover, there was no claim for service connection for varicose veins filed within one year of the date of separation from the second period of service. Accordingly, there is no entitlement under the law to a grant of an effective date prior to December 4, 1965, for the award of service connection. Indeed, there is profound doubt that the effective date granted by the RO is correct, however, the issue to the Board is whether a date prior to December 4, 1965, is warranted. The next question presented is whether a compensable rating was warranted from December 4, 1965. The appellant has argued that there was CUE in the April 1966 determination not only with regard to the grant of service connection, but also with regard to the rating assigned. The Board notes that with respect to a claim of CUE, the basic fact is that no claim for service connection for varicose veins was pending in April 1966. Even assuming a claim existed, while there was a notation of varicose veins, characterized as mild in the left leg, in October 1963, a series of service department examinations in 1965, as well as the March 1966 VA examination, showed no disability due to varicose veins. The rating criteria in effect at that time provided that a 10 percent evaluation was warranted for varicose veins that were moderate, with varicosities of superficial veins below the knees, with symptoms of pain or cramping on exertion. A noncompensable evaluation was provided for varicose veins that were mild, or with no symptoms. 38 C.F.R. § 4.104, Diagnostic Code 7120 (1966). The 1965 service department evaluations and the evidence on the VA examination clearly defeat of claim of CUE since it supported the assignment of a noncompensable evaluation on the basis of an absence of current disability. Nor were there findings of disabling manifestations of any post operative scars. Thus, it was not "undebatable" that any compensable evaluation was warranted at that time. In this instance, however, the RO has elected to proceed on the premise that the regulatory provisions governing the situation where additional service medical records become available somehow obviates the requirement that the veteran must file a claim identifying the benefit. In this case, the RO has entertained the theory that the fact that no claim for service connection for varicose veins was pending in April 1966 is no obstacle to a grant of service connection or the award of a disability rating at that time. Even assuming this is so, the evidence of record did not support a compensable evaluation. In this regard, the Board notes in light of the actions of the RO, the claimant has effectively entered a notice of disagreement with initial rating actions granting benefits back to December 1965. Therefore, the standard of review is not CUE, but the normal standard of review incorporating the benefit of the doubt principal. The service department records added to the record in 1997 showed that upon examination for release from active duty in October 1963 the veteran was reported to have a history of varicose veins in both legs with mild varicose veins in the left leg. Service medical evaluations in May, June, and October 1965 fail to make reference to varicose veins. In June 1965, the veteran specifically noted that he was in "excellent health." The veteran filed his initial claim for VA compensation in December 1965. At that time, the veteran sought service connection for a nervous condition. He made no reference to varicose veins by name or symptoms. In a March 1966 VA physical evaluation, the veteran made no reference to varicose veins. The clinical examination noted that no varicose veins were present. As discussed above, under the schedular criteria in effect in April 1966, the clinical findings did not support a compensable rating and there were no subjective complaints of disability due to varicose veins. There was, in fact, no clinical evidence of any disabling manifestation of varicose veins at that time. Thus, no disability was present that would support an evaluation, even under the normal standard of review incorporating the benefit of the doubt principal. The overwhelming weight of the evidence is that there was no disability due to varicose veins present at the time of separation from service or for many years thereafter. The Board has also considered a series of additional allegations, as best the Board can discern the thrust of those allegations. No citation of controlling legal authority is provided by the claimant for the proposition that a claim for compensation benefits filed in December 1965 was to be deemed generic and open ended. Vague citations to nonspecific provisions of law can not reach the level of a valid claim of CUE. Nor does the claimant provide authority for the proposition that at the time the December 1965 claim was received, it was incumbent under the governing law and regulations for VA to award the "maximum benefits provided by law and regulations," regardless of whether the basic legal requirement had been met that a claim must be submitted in order to award a benefit. Even assuming this is so, the RO's subsequent actions have awarded the "maximum benefit." Likewise, the bare allegation that he submitted a written or oral claim for service connection for varicose veins in March 1966, without any supporting evidence, does not serve to establish CUE. It is not undebatable that such a claim was submitted on this record. The Board finds that in any event, an oral claim can not meet the statutory requirement that a claim be filed on the form prescribed by the Administrator. To the extent the pleadings by the claimant appear to cite case law of the Court (i.e. EF v. Derwinski or Douglas v. Derwinski), such allegations can not raise a valid claim of CUE because they rely upon law that was not in effect at the time of the adjudication under challenge. The allegation that the veteran filed a claim for benefits under 38 U.S.C.A. § 351 (now 38 U.S.C.A. § 1151), when he purportedly informed a VA physician about surgery at Warrack Hospital, Santa Rosa, CA, is devoid of merit. The purported claim was oral, not in writing. Furthermore, it is could not be a claim for benefits under 38 U.S.C.A. § 351 since it purportedly involve medical care by a non-VA provider. Finally, a bare allegation by the claimant of purported remote events without any supporting evidence does not begin to raise a valid claim of CUE of fact, since such allegations go to either evidence not of record at the time of the prior determination or would require the weighing and evaluation of evidence. In a June 1999 statement, there is an allegation about a claim for reimbursement of medical expenses for 1964 varicose vein surgery. It is further alleged that VA was required to make a determination as to service connection for the disability. It is not clear when the claim for reimbursement was allegedly submitted. In June 1999, the veteran appears to allege he filed such a claim in 1964, and VA has not helped him to find it. The record again is devoid of any supporting evidence for this bare allegation and, as noted above, the allegation is in direct contradiction to the veteran's expressed acknowledgment on his December 1965 application form that he had not filed any prior claim for any benefit with VA. Therefore, the Board finds this allegation does not raise a valid claim of CUE. June 1999 statement also raises general allegations of violation of Article V and Article XIV of the Constitution and breech of enlistment contract. These again fall into the category of vague general assertions without support in the record or in the law. Apparently, the claimant believes that the concept of "new and material evidence" incorporates the principle that if he did not actually claim service connection for varicose veins on his December 1965 application for benefits, the subsequent submission of evidence of reflecting the presence of varicose veins, either in service or during reported private hospitalization in 1964, requires that VA proceed on the premise that the December 1965 claim incorporated a claim for service connection for varicose veins. No authority existing in 1966 to support this conclusion is cited in support of the allegation. Rating the Psychiatric Disability The veteran also appears to contend that the award of a 10 percent evaluation for his service-connected psychiatric disability in April 1966 contained CUE. The evidence of record at that time included a November 1965 Medical Board Report in November 1965 reflecting a diagnosis of schizophrenic reaction, paranoid type that was deemed to have existed prior to service and was not aggravated by service. The history recorded at that time was that the claimant was hospitalized during his prior period of active service because he was hearing accusing voices and was expressing ideas of reference. After six months of hospitalization he was returned to duty. He failed to report this at the time of examination for entry into his second period of service. He was hospitalized in October 1965. After observation and treatment, it was concluded that the diagnosis was paranoid schizophrenia in partial remission, manifested by delusions, hallucinations, in appropriate affect concrete interoperations and loose association. Impairment in early November was described as marked and he was unfit for further duty. On the March 1966 VA psychiatric examination, the veteran reported he was performing full time employment as a radio and television repairman apprentice. He has been so employed since February 1, and had lost no time from work. He reported no current problems. He described appetite and sleep as good. He had one episode of fainting on the job when they failed to make an appropriate electrical connection. He was oriented to time, person and place. He did not perform serial 7s correctly after 93 and could not name the governor. He denied depression, suicidal ideas, suicidal acts or auditory hallucinations. He was evasive about such symptoms in the past. He considered himself nervous at times and became shaky. No problems with loss of temper or weeping. He reported limited social participation. Judgment was poor, affect was inappropriate frequently and insight was disorganized. The impression was that his concentration and memory were both impaired. He had additional psychiatric symptomatology that he "tend[ed] to deny." He was receiving no treatment and prognosis was guarded. The diagnosis was schizophrenic reaction, undifferentiated type, in partial reemission, manifested by flattening of affect, some inappropriate laughter, tendency to be withdrawn, impaired concentration and memory and a general insecurity with pervaded his whole being. He was considered competent to handle Government funds. The rating criteria in effect in April 1966 provided a 30 percent evaluation for a psychosis productive of definite impairment of social and occupational adaptability. A 10 percent evaluation was provided for slight impairment of social and industrial adaptability. A noncompensable evaluation was provided for a psychosis in full remission. 38 C.F.R. § 4.132, Diagnostic Code 9210 (1966). The April 1966 rating determination was clearly based on the March 1966 VA psychiatric evaluation that found the veteran's schizophrenic reaction to be in partial remission. While the examiner noted some manifestations, it was also recorded that the veteran was working full time and had lost no time from work. There was no finding by the evaluator of "definite" or greater impairment. Given these facts, the finding that the veteran's psychiatric disability was 10 percent disabling, and no greater, was not clearly and unmistakably erroneous. It is important to note that a disagreement as to how the RO evaluated the facts is inadequate to raise the claim of CUE. Luallen, 8 Vet. App. at 95. It also appears that the veteran is contending that CUE exists on the basis of an allegation that the VA conducted an inadequate medical evaluation in 1966. This argument must fail. As the Court has stated, an attack on improper procedure, such as VA's fulfillment of the duty to assist, cannot be the basis of CUE. As stated in Caffrey, 6 Vet. App. at 383-84, an incomplete record, factually correct in all other respects, is not clearly and unmistakably erroneous. The VA's alleged breach in the duty to assist cannot form a basis for a claim of CUE because such a breach creates only an incomplete rather than an incorrect record. Id. at 383-4. To the extent that the veteran is alleging that CUE existed in the April 1966 rating action on the theory that subsequent evidence showed he had more disabling manifestations or impairment with employment, this argument fails to raise a valid claim of CUE. In order to establish CUE, the error of fact must be based upon the facts at they were known at the time of the rating determination being challenged. An argument that subsequent evidence established entitlement can not serve to establish CUE. The June 1987 Rating Action The veteran has also contended that there was CUE in the June 1987 rating action. The veteran filed a claim for increase in March 1987. He reported treatment at a VA facility. The RO requested these treatment records. These records, however, reflected hospital treatment for a nonrelevant disorder and did not show any disabling psychiatric manifestations. In June 1987, the RO determined that the evidence did not show treatment for the veteran's service- connected conditions and, as a result, an increased evaluation for his service-connected disability was unwarranted. The decision is entirely accurate. Medical records at this time fail to indicate any signs, symptoms or treatment for the veteran's psychiatric disability. The Board finds no allegation has been raised that would support a finding of CUE in the June 1987 determination. As noted above, CUE must be based upon the facts of record at the time of the rating determination under challenge and the law in effect at that time. None of the allegations raised as to June 1987 rating determination point to facts or law in effect at that time that undebatably established entitlement. Rather, the arguments raised only allege the record was incomplete in some fashion, that subsequent case law was applicable, or general and vague allegations of error. Moreover, the subsequent rating actions, granting a schedular 100 percent evaluation back to March 1987 for the service connected psychiatric disability, effectively make the June 1987 rating determination moot as to the denial of an increased schedular evaluation. The 1994 Rating Determination The essential fact with regard to this rating determination is that the subsequent rating actions have overturned the effective date assigned in the March 1994 rating determination. The March 1998 rating action granted an effective date of the award of service connection for a 100 percent rating for a psychiatric disability back to March 25, 1987. As the RO pointed out, regardless of the specific day designated as the effective date of the grant, the veteran could not receive compensation from a date prior to April 1, 1987. Thus, any dispute about the exact date selected for the grant of the 100 percent rating in March 1987 could not result in the award of any monetary benefit to the claimant. 38 C.F.R. § 3.31 (1999). In any event, it is the date of receipt of a claim by VA, not the date the claimant places on the application that controls the award of an effective date. Accordingly, the only question now remaining as to CUE in the March 1994 rating determination, assuming such a challenge could be mounted in view of the subsequent actions, is whether an effective date of the 100 percent evaluation could be assigned prior to March 1987. The Board has already discussed the lack of CUE in the April 1966 rating determination and the June 1987 rating determination. The claimant has not cited either specific errors of fact or law that would support an earlier effective date because he has not alleged specifically that there was any claim, formal or informal, of record within one year prior to March 1987. Even assuming his allegations could be construed as alleging the existence of a formal or informal claim within one year prior to March 1987, there is no such claim of record. The March 1987 hospitalization, in fact, showed no disabling manifestations of the service-connected psychiatric disability. His claims prior to March 1987 were subject to final adjudications that did not contain CUE, and thus could not provide the basis for an earlier effective date. In any event, no unadjudicated claim either formal or informal is of record within one year prior to March 25, 1987. ORDER The veteran's claims of clear and unmistakable error within the rating decisions of April 1966, June 1987, and March 1994, are denied. Richard B. Frank Member, Board of Veterans' Appeals