BVA9508047 DOCKET NO. 93-14 556 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to dependency and indemnity compensation pursuant to the provisions of 38 U.S.C.A. § 1318 (West 1991). Appellant represented by: The American Legion INTRODUCTION The veteran served on active duty from November 1942 to November 1944. He died on May [redacted] 1985. The appellant is the veteran’s widow. In January 1990, the Board of Veterans’ Appeals denied entitlement to dependency and indemnity compensation. In reaching that decision the Board made the following conclusions of law: 1. The October 1975 rating decision was not clearly and unmistakably erroneous in the assignment of July 15, 1975, as the effective date for the veteran’s total evaluation based on individual unemployability, and is final. (38 U.S.C. 3010, 4005; 38 C.F.R. 3.102, 3.105(a), 3.114) 2. The requirements for dependency and indemnity compensation benefits under the provisions of 38 U.S.C. 418 have not been met. (38 U.S.C. 418; 38 C.F.R. 3.22, 3.102) The appeal now before the Board arises from an October 1992, rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that she has submitted new and material evidence sufficient to reopen her claim of entitlement to dependency and indemnity compensation. Essentially, she maintains that a statement from the veteran’s primary care physician shows that the veteran was totally disabled due to his service connected back disorder long before July 15, 1975. As a result, it is argued that this statement provides a sufficient basis to reopen her claim, and award dependency and indemnity compensation. Alternatively, it is argued that the more liberal regulations currently in effect must be applied to her case. The appellant further asserts that because the veteran was hospitalized at a VA facility in January 1975 that it was clearly and unmistakably erroneous not to assign an effective date for individual unemployability benefits prior to July 15, 1975, based on that admission. Finally, it is argued that because the veteran underwent back surgery prior to July 15, 1975, that it was clear and unmistakable error not to address the claim of entitlement to a total rating pursuant to the provisions of 38 C.F.R. §§ 4.29, 4.30. 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 in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that new and material evidence has not been submitted to reopen a claim of entitlement to dependency and indemnity compensation. FINDING OF FACT The evidence received since the Board’s January 1990 decision denying entitlement to dependency and indemnity compensation does not raise a reasonable possibility of changing that prior outcome. CONCLUSION OF LAW The evidence submitted since the Board’s January 1990 decision is not new and material. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1994) REASONS AND BASES FOR FINDING AND CONCLUSION Factual Background In January 1990, the Board denied entitlement to dependency and indemnity compensation pursuant to the provisions of 38 U.S.C. § 418 (now § 1318). The evidence available to the Board at that time may be summarized as follows: At the age of 16 and prior to enlistment, the veteran sustained a herniated intervertebral disc at L5-S1. As he could not be reconditioned for service he was separated with a certificate of discharge for disability in November 1944. It was opined that this disorder existed prior to the veteran’s enlistment, and that it was not aggravated therein. In a November 1944 rating decision service connection was granted for a limitation of lumbosacral motion due to a herniated intervertebral disc by reason of aggravation "by combat." A 20 percent evaluation was assigned. The evaluation for this disorder was increased in a September 1946 rating decision to 40 percent, and the disorder was recharacterized as a limitation of lumbosacral motion due to a ruptured L5-S1 disc, with nerve involvement. After being awarded several temporary total disability evaluations following spinal surgeries, the veteran in an August 1955 rating decision was awarded a 60 percent evaluation for postoperative residuals of a recurrent herniated intervertebral disc. Following the veteran’s return to his job, the rating was reduced to 40 percent in a January 1956 rating decision. On January 14, 1975, the RO received a VA Form 10-7131, "Exchange of Beneficiary Information and Request for Administrative and Adjudicative Action." This reported the veteran’s admission on January 8, 1975, to the VA hospital in Syracuse, New York. The admission diagnosis was "rule out pneumonia." On July 15, 1975, the veteran filed an income and net worth statement reporting that he had became totally disabled on October 23, 1974. On August 7, 1975, the RO received medical records from the State University Hospital in Syracuse, New York pertaining to several periods of hospitalization for treatment of variously diagnosed back disorders. A December 1974 discharge summary specifically states that the veteran had not worked since October 23, 1974 when he fell down a set of concrete steps. In January 1975, the veteran underwent a lumbar laminectomy and excision of herniated disc material from the L3 and L4 interspace. Also received on August 7, 1975, were several statements form Robert B. King, M.D., a neurologist and professor of neurological surgery. Among these is a January 24, 1975 statement which refers to the veteran’s January 1975 VA hospitalization for pneumonia. The statements from Dr. King also refer to his treatment of the veteran’s back disorder between January 1975 and June 1975. In his April 25, 1975, statement Dr. King reported that the veteran remained fully disabled for his usual occupation. Following a September 1975 VA compensation examination the RO granted a 60 percent evaluation for the veteran’s lumbar disorder, as well as a total rating on the basis of individual unemployability in an October 29, 1975 rating decision. In December 1975, a claim for an earlier effective date for individual unemployability benefits was filed with the RO. In January 1975, the veteran was informed that "VA regulations applying to disability compensation benefits provide the effective date of a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. Since [his] claim for increased benefits was received on July 15, 1975, benefits have been properly awarded from that date." The veteran died on May [redacted] 1985, of non service connected causes. Following the appellant’s submission of her initial claim for dependency and indemnity compensation, the RO in March 1988, requested an administrative review of the veteran’s file by the Compensation and Pension Service. In response, the Compensation and Pension Service reported that Public Law 94-71, enacted on August 5, 1975, and effective August 1, 1975, liberalized the effective date for an increased disability evaluation to the date the increase in disability could factually be ascertained. The Compensation and Pension Service went on to note, however, that the regulation implementing the new statute specifically ruled out any retroactive increase prior to August 1, 1975. The evidence which has been added to the claims file since the Board’s January 1990 decision is as follows: In September 1992, Robert B. King, M.D., wrote that after surgery in January 1975 the veteran was totally and permanently disabled for any gainful employment. In July 1993, the appellant submitted a photocopy of the veteran’s January 1975 hospitalization at the VA hospital in Syracuse, New York. This report reveals that the veteran was diagnosed with acute bronchitis, and with back pain secondary to arachnoiditis or scarring, by history. Analysis The effective date for an award of an increased disability rating shall be the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o) (1975). The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year of such date. Pub.L. No. 94-71, 89 Stat. 396 (1975) The provisions of Public Law 94-71 shall become effective August 1, 1975. Pub.L. 94-71, 89 Stat. 398 (1975). A claim-application means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p) (1975). The law grants a period of one year from the date of the notice of the result of the initial determination by a regional office for initiating an appeal by filing a notice of disagreement. Otherwise, that determination becomes final and is not subject to revision on the same factual basis absent clear and unmistakable error. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 3.105(a) (1994). A clear and unmistakable error is an error of fact or law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo v. Brown, 6 Vet.App. 40, 43 (1993) (emphasis in the original). Once there is a final decision on the issue of clear and unmistakable error that particular claim of clear and unmistakable error may not be raised again. It is res judicata. Russell v. Principi, 3 Vet.App. 310, 315 (1992). Dependency and indemnity compensation shall be paid to a surviving widow if the veteran was continuously rated as totally disabled due to service connected disability for 10 years or more immediately preceding death. 38 U.S.C.A. § 1318 (West 1991). Except as provided in 38 U.S.C.A. § 5108 (West 1991), when a claim is disallowed by the Board, the claim may not thereafter be reopened and allowed, and a claim based upon the same factual basis may not be considered. 38 U.S.C.A. § 7104 (West 1991) If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108 (West 1991). "New" evidence is that which is not merely cumulative of other evidence of record. "Material" evidence is that which is relevant to and probative of the issue at hand, and which must be of sufficient weight or significance (assuming its credibility, see generally, Justus v. Principi, 3 Vet.App. 510, 513 (1992)) that there is a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome. Cox v. Brown, 5 Vet.App. 95, 98 (1993). In this case, the Board’s January 1990 decision is final. The appellant may reopen her claim for dependency and indemnity compensation if she submits new and material evidence. In this regard, since January 1990 the appellant has submitted a photocopy of a January 1975 VA hospital discharge summary, as well as a January 1992 statement from Robert B. King, M.D. Significantly, however, neither of these two documents raise a reasonable possibility of demonstrating that the veteran warranted a total disability evaluation effective from a date at least ten years prior to his death in May 1985. In this respect, the fundamental facts remain the same. In October 1975, the veteran was awarded a total disability evaluation on the basis of individual unemployability effective from July 15, 1975. That date was selected because that was the date the veteran’s claim for individual unemployability benefits was received. Even if the records submitted in association with the July 15, 1975 claim showed that the veteran was unemployable prior to July 15, 1975, under 38 C.F.R. § 3.400(o) (1975), the rating board had no authority to assign an effective date earlier than July 15, 1975, the date the claim was received. The October 1975 rating decision assigning July 15, 1975 as the effective date is final in the absence of clear and unmistakable error. 38 U.S.C.A. § 7105. A "determination that there was a ‘clear and unmistakable error’ must be based on the record and law that existed at the time of the prior ... decision." Russell, 3 Vet.App. at 314 (1992). Accordingly, even if the Board concedes that the evidence presented since the January 1990 Board decision shows that the veteran was totally disabled prior to July 15, 1975, the additional evidence submitted by the appellant may not be considered in determining whether or not there was a clear and unmistakable error in the October 1975 rating decision because such evidence was not available to the adjudicators in October 1975. As the October 1975 rating decision remains final, there is no reasonable possibility of establishing an effective date prior to July 15, 1975. Accordingly, the appellant’s attempt to reopen her claim of entitlement to dependency and indemnity compensation is denied. In reaching this decision the Board considered the contention that the October 1975 rating decision was clearly and unmistakably erroneous because it failed to consider a January 1975 hospitalization report. That contention of clear and unmistakable error was, however, addressed in the Board’s January 1990 decision. Hence, in light of the principle set forth in Russell and discussed above, there is no need to replough already covered ground. That matter is res judicata. The Board also considered the contention that when the veteran was hospitalized by VA in December 1973 and in January 1975, that these hospitalizations themselves constituted informal claims, and that VA had a duty to assist the veteran in helping him complete a claim for individual unemployability, or a claim for benefits under 38 C.F.R. §§ 4.29 and 4.30 during those periods of inpatient care. Even assuming arguendo that such hospitalizations constituted informal claims, see, e.g., 38 C.F.R. §§ 3.155, 3.157 (1975), and even assuming that VA breached its duty to assist, this assertion does not provide an adequate predicate upon which to reopen the appellant’s claim of entitlement to dependency and indemnity compensation. Again the fundamental facts remain the same. The October 1975 rating decision is final in the absence of a finding of clear and unmistakable error. A "claim of [clear and unmistakable error] is based on an assertion that there was an incorrect application of law or fact as it existed at the time of the disputed adjudication." Caffrey v. Brown, 6 Vet.App. 377, 383 (1994) (emphasis in the original). Hence, "VA’s breach of the duty to assist cannot form the basis for a claim of [clear and unmistakable error] because such a breach only creates an incomplete rather than an incorrect record." Id. at 384. Accordingly, any failure to consider either the veteran’s putative December 1973 hospitalization (of which the Board has no record), or his January 1975 hospitalization as an informal claim for an increase under any provision of law, does not raise a reasonable possibility of changing the Board’s prior decision. Finally, the Board recognizes the harshness of the decision which is reached here today. If the veteran had lived a bit more than two months more, the appellant would be entitled to benefits. Similarly, if the veteran had delayed filing his claim until August 1, 1975, rather than filing as he did on July 15, 1975, an earlier effective date may have been in order under the provisions of Public Law 94-71, thus again entitling the appellant to benefits. Such concerns, however, pertain to equitable matters and not to matters of law. As the Board’s jurisdiction does not extent to matters of equity, the Board may not, even in the interest of justice, extend its jurisdiction where none exists. Christianson v. Colt Industries Operating Co., 486 U.S. 800 (1988). ORDER New and material evidence not having been submitted, the appellant’s attempt to reopen a claim of entitlement to dependency and indemnity compensation is denied. DEREK R. BROWN 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.