BVA9505523 DOCKET NO. 93-10 395 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an effective date earlier than September 9, 1991, for the award of nonservice-connected disability pension. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD George E. Guido Jr., Counsel INTRODUCTION The veteran-appellant had active military service from July 1963 to July 1966. This appeal arises from a June 1992 rating decision of the Cleveland, Ohio, Department of Veterans Affairs (VA), Regional Office (RO). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that, applying the benefit-of-the-doubt standard, the effective date of the award for nonservice- connected pension benefits should be the date when he originally filed his claim in March 1990. He maintains that his health problems did not change in the interval between the May 1990 VA examination (the basis for the initial denial of the claim) and the October 1991 VA examination (the basis for allowing the claim). He argues that the initial rating decision (June 1990), denying his claim, involved clear and unmistakable error as the correct facts pertaining to his health were not before the adjudicator as the RO failed to obtain medical records from Drs. Blickenstaff and Engle for whom he had signed releases for medical information and from the Chillicothe VA Medical Center. He also argues that the RO did not consider the results of the liver function test from the May 1990 VA examination. The veteran cites Douglas v. Derwinski, 2 Vet.App. 103 (1992) aff'd in part and vacated in part on reconsideration en banc, 2 Vet.App. 435 (1992), for the proposition that VA is obligated to consider all the evidence of record and pertinent legal theories on the issues raised in the substantive appeal and as well as to inferred issues. The veteran, citing Thurber v. Brown, 5 Vet.App. 119 (1993), also argues that, before the Board relies, in rendering a decision on the claim, on any evidence developed or obtained by it subsequent to the issuance of the statement of the case with respect to such claim, the Board must provide the veteran with reasonable notice of such evidence, of the reliance proposed to be placed on it and a reasonable opportunity for the veteran to respond to it. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), after review and consideration of all the evidence and material of record in the veteran's claims file and for the following reasons and bases, the Board decides that the preponderance of the evidence is against an earlier effective date for the award of nonservice-connected disability pension benefits. FINDINGS OF FACT 1. In a June 1990 rating decision, the RO, considering a May 1990 VA report of examination, denied the veteran's claim for nonservice-connected pension benefits on the grounds that the evidence did not show disability of such severity as to prevent the claimant from obtaining and following gainful employment; that same month VA notified the veteran of the determination and of his procedural due process and appellate rights, but he did not file a Notice of Disagreement within one year of the notice. 2. At the time of the June 1990, rating decision, the adjudicator reviewed the evidence of record and correctly applied the statutory and regulatory provisions extant at the time pertaining to entitlement to nonservice-connected pension benefits. 3. In the June 1992 rating decision, the RO awarded the veteran nonservice-connected pension benefits and assigned September 9, 1991, the date of receipt of the claim, as the effective date of the award. CONCLUSIONS OF LAW 1. The June 1990 rating decision, denying the veteran's claim for nonservice-connected pension benefits, became final and was not clearly and unmistakably erroneous. 38 C.F.R. §§ 3.104(a), 3.105(a), 3.160(d) (1994). 2. The effective date for nonservice-connection pension benefits is the date of receipt of the new claim, September 9, 1991. 38 U.S.C.A. § 5110(a) (West 1991); 38 C.F.R. § 3.400(b)(1)(ii)(A) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS After a review of the record and of the veteran's statements, the Board is satisfied that the facts pertinent to the claim have been fully developed and no further action is required to comply with the statutory duty to assist. 38 U.S.C.A. § 5107(a). The Board has not relied on any evidence developed or obtained after the issuance of the statement of the case. The notice requirements of Thurber, therefore, are not applicable. Factual and Procedural Background In March 1990, the veteran applied for nonservice-connected pension benefits. In his application, he described his disability as a lumbar disc that had been surgically removed. He listed Drs. Blickenstaff and Engle as having treated him for his back condition. He reported that he was working part-time in a welfare program, doing light work only. In an accompanying Statement in Support of Claim, the veteran stated that he went through the alcohol rehabilitation program at Chillicothe in 1983 and that he was currently working part-time because of his back. He attached and had signed authorizations for release of information from Drs. Blickenstaff and Engle. A May 1990 report of VA examination discloses that the veteran was working, earning $115 dollars a month, that time lost from work was due to back pain and that he was being treated for by Dr. Engle. The veteran complained of back pain and numbness of the feet. History included alcoholism, high blood pressure in 1979, treated with medication for three months and not since then, and a lumbar laminectomy in 1986. The pertinent findings were: diastolic blood pressure readings below 100, normal ECG and no organ enlargement or ascites. Laboratory tests, in part, showed high AST (aspartate transaminase) and LDH (lactic dehydrogenase). For the back, there was no tenderness on palpation of the spine or paraspinal muscles, the straight leg raising test was negative for shooting pain, flexion of the lumbar spine was about 80 degrees and the rest of the movements were normal. Gait was normal and the veteran was able to walk on his heels and toes without difficulty. The diagnoses were chronic low back pain, lumbar laminectomy with narrowing disc space and osteoarthritis, and hypercholesterolemia. In a June 1990 rating decision, the RO, considering the May 1990 VA examination report, denied the veteran's claim for nonservice-connected pension benefits on the grounds that the evidence did not show disability of such severity as to prevent the claimant from obtaining and following gainful employment. It was noted that essential hypertension was not diagnosed by the examiner. Pension benefit on an extra-schedular basis was also considered and denied. Lumbar laminectomy, 10 percent disabling, was the only disability listed. That same month VA notified the veteran of the determination and of his procedural due process and appellate rights, but he did not file a Notice of Disagreement within one year of the notice. On September 9, 1991, the RO received the veteran's new claim for nonservice-connected pension benefits. The RO then obtained records from Dr. Engle, disclosing excision of a ruptured disc at L4-5 with fusion in November 1986. In a November 1991 statement, Dr. Engle reported that following surgery the veteran had persistent pain in the lower back, that he tried working as an electrician and in a wood shop and that to his knowledge the veteran had not worked since early 1989. Records of Family Health Services (Drs. Blickenstaff and Menendez) for the period from April 1983 to September 1991 disclose that after November 1986 the veteran for was seen several times a year for various complaints. In May 1988, he complained of elevated blood pressure. On VA general medical and orthopedic examinations in October 1991, the diagnoses were laminectomy L4-5 with fusion and degenerative changes, chronic alcoholism with macrocytosis and elevated liver enzymes and hypertension. In a June 1992 rating decision, the RO granted the veteran nonservice-connected pension benefits. The listed disabilities were laminectomy, L4-5, with fusion and degenerative changes, 40 percent disabling; alcoholic liver disease, 30 percent disabling; and, hypertension, 20 percent disabling. The combined rating was 70 percent. September 9, 1991, the date of receipt of claim, was assigned as the effective date of the award. Additional records of Dr. Blickenstaff from October 1983 to March 1989, received in February 1993, disclose that, after November 1986 (back surgery), the veteran was seen primarily for back pain. In about May 1987, he returned to work. In September 1988, he was working part-time. In January 1989, he was anticipating looking for a job in which he could wear his back brace. Analysis Under 38 U.S.C.A. § 5110(a), in part, the effective date of an award based on a claim reopened after final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. For a reopened claim, the effective date of an award of pension is the date of receipt of the claim or the date the entitlement arose whichever is later. 38 C.F.R. § 3.400(r). It is not disputed that the RO provided the veteran notice of the June 1990 rating decision, denying his claim, and of his procedural due process and appellate rights. It is also not disputed that the veteran did not timely file a Notice of Disagreement to the June 1990 rating decision and that he did not seek an extension of the time limit for good cause shown. 38 U.S.C.A. § 7105, 38 C.F.R. §§ 3.103, 3.109(b), 19.25. The June 1990 rating decision was not appealed and, therefore, final. On September 9, 1991, the RO received the veteran's reopened claim for nonservice-connected pension benefits. The extent of the veteran's health problems were not fully medically documented until the October 1991 VA examination, when the combination of veteran's back disability, alcoholic liver disease and hypertension was first identified. The RO then determined that the effective date of the reopened claim was the date of receipt of claim, September 9, 1991, rather than the date entitlement arose (October 1991), which worked to the veteran's advantage and the Board will not disturb that date as the effective date of the award for nonservice-connected pension benefits. In reviewing all the evidence of record and the pertinent legal theories on the issue, the Board has also considered entitlement to a retroactive award based on the requirements of 38 C.F.R. § 3.400(b)(1)(ii)(A)-(B). These provisions provide that the disability pension award may be effective from the date of receipt of claim or the date on which the veteran became permanently and totally disabled whichever is to his advantage if he filed within one year from the date on which he became permanently and totally disabled and if the disability was so incapacitating that it prevented him from filing a pension claim for at least 30 days immediately following the date on which he became permanently and totally disabled. In accordance with the facts found, however, the veteran was totally disabled on the basis of the October 1991 VA examination, which was after the date of receipt of claim. Notwithstanding the veteran's contentions that there was no change in his health between the May 1990 and October 1991 VA examinations, the Board may consider only independent medical evidence to support its findings. See Colvin Derwinski, 1 Vet. App. 170, 175 (1991). Finally, the veteran argues that the June 1990 rating decision involved clear and unmistakable error and must be set aside, allowing for an earlier effective date. The veteran contends that the RO failed to obtain medical records from Drs. Blickenstaff and Engle for whom he had signed releases for medical information and from the Chillicothe VA Medical Center. In Caffrey v. Brown, 6 Vet.App. 377, 384 (1994), the United States Court of Veterans Appeals held even if VA had breached its duty to assist, such a breach creates only an incomplete rather than an incorrect record and therefore cannot form a basis for a claim of clear and unmistakable error. On the basis of the case law, the claim of clear and unmistakable error in the context of the duty to assist is legally insupportable. The Court has also held that if an appellant wishes to reasonably raise clear and unmistakable error there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error that if true, would be clear and unmistakable error on its face, persuasive reasons must be given as to why the result would have been manifestly different but for the alleged error. Fugo v. Brown, 6 Vet.App. 40, 44 (1993). Except for the argument concerning breach of the duty to assist, the Board finds that the claim of clear and unmistakable error otherwise lacks specificity and there is nothing further to address. As for the contention that the RO did not consider the results of the liver function test from the May 1990 VA examination, those results were not clinically associated with liver disease by the examiner. The RO could not substitute its own judgment on a question involving medical diagnosis. See Colvin. For these reasons, the Board finds no factual or legal grounds for an effective date earlier than September 9, 1991, for the award of nonservice-connected pension benefits based on a reopened claim. ORDER An effective date earlier than September 9, 1991, for nonservice- connected pension benefits is denied. RENÉE M. PELLETIER 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. (CONTINUED ON NEXT PAGE) 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.