tdiu Bva Decision On Grave Procedural Error

[free_spirit_etc]

http://www.va.gov/vetapp01/files01/0104797.txt

Citation Nr: 0104797

Decision Date: 02/15/01 Archive Date: 02/20/01

DOCKET NO. 94-26 808 ) DATE

)

)

On appeal from the

Department of Veterans Affairs Regional Office in Denver,

Colorado

THE ISSUE

Entitlement to an effective date earlier than August 24,

1992, for service connection for systemic lupus erythematosus

(SLE).

REPRESENTATION

Veteran represented by: Paralyzed Veterans of America,

Inc.

ATTORNEY FOR THE BOARD

Mark J. Swiatek, Counsel

INTRODUCTION

The veteran had active service from February 1974 to November

1974 and from December 1977 to December 1979.

This matter is before the Board of Veterans' Appeals (the

Board) on appeal from the Department of Veterans Affairs (VA)

Regional Office (RO) in Denver, Colorado. The Board in March

1997 remanded the case to the RO for further development.

The RO recently returned the case to the Board for appellate

consideration.

The veteran's representative in November 2000 included

comments on questions not before the Board. One matter

commented on was the RO's reduction, effective in August

1999, of the veteran's 100 percent rating for Hodgkin's

disease and in the rate of special monthly compensation she

receives. The representative also commented on

correspondence from the RO late in 1999 and the local

representative's written response regarding a claim of

secondary service connection for depression for which there

is no rating decision on file. Another matter mentioned is a

RO denial late in 1999 of entitlement to additional special

monthly compensation based on the need for regular aid and

attendance or being housebound. These issues are being

referred to the RO for clarification initially and then any

further action warranted with respect to any of these issues,

as there is no document on file that could be interpreted as

a valid notice of disagreement regarding any of these issues.

Therefore, in the Board's opinion, referral of these matters

rather than remand is the appropriate course of action at

this time.

The Board remand asked the RO to provide the veteran with

information to allow her to bring an appeal from an April

1994 rating decision regarding clear and unmistakable error

in an October 1988 rating determination. The RO furnished

the information to the veteran in an April 1997 letter. The

remand instructed the RO to develop the issue for appeal if

the appellant filed a notice of disagreement. The record

shows that a notice of disagreement was not filed and there

was no response to the April 1997 letter. As a result, the

matter is not properly before the Board at this time and will

be addressed no further.

FINDINGS OF FACT

1. The veteran did not appeal the June 1984 RO rating

decision that denied service connection for SLE but the

notice she received was materially deficient and constituted

grave procedural error.

2. There was service medical record evidence and VA medical

evidence, which the veteran had referred to in connection

with her initial VA benefit application for SLE in 1984 and

in subsequent application in 1988 that was not of record but

which the RO was obligated to obtain in development of the

claim.

3. The RO's failure to request pertinent specified VA

medical evidence and service medical records also constituted

grave procedural error that renders the June 1984 rating

decision and subsequent 1988 decision nonfinal.

CONCLUSIONS OF LAW

1. The June 1984 and October 1988 rating decisions wherein

the RO denied service connection for SLE contained grave

procedural error and are nonfinal. 38 U.S.C.A. §§ 5108, 7105

(West 1991); 38 C.F.R. §§ 3.104, 3.105(a), 20.1103 (2000).

2. The criteria for an effective date of May 15, 1984 for

service connection for SLE have been met. 38 U.S.C.A. § 5110

(West 1991 & Supp. 1999); 38 C.F.R. §§ 3.155, 3.157, 3.160,

3.400 (2000).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Factual background

The record shows that the RO received the veteran's claim to

establish service connection for SLE on May 15, 1984. The

statement in support of the claim filed by her representative

referred to a VA diagnosis of SLE in 1982 and claimed that

her service medical records supported that she had many of

the symptoms. She had previously filed VA benefit claims for

other disorders, initially early in 1980, and the RO had

received service medical records and VA medical records that

included several examination reports. None of the VA records

on file mentioned SLE and the service medical records on file

contained no reference to SLE. The claims file included

several VA requests for information dated from 1981 to 1983,

apparently connected with contemporaneous VA medical

treatment that did not refer to SLE.

The RO in June 1984 issued a rating decision that denied

service connection for SLE. The rating decision narrative

stated that a complete review of the veteran's service

medical records was negative for findings, symptoms or

diagnosis of SLE, and that the remainder of the medical

evidence of record was also found to be negative for any

indication of SLE. The VA notice letter in June 1984 did not

mention SLE, but informed her that no change was warranted

since the previous determination regarding her spinal disc

condition and ear infection.

On a VA examination late in 1984 to evaluate a service-

connected spine disability, the examiner reported that the

veteran had been diagnosed with SLE and that she was being

treated for it. VA medical records obtained late in 1986

when she filed a claim for increase for a back disability

included references to SLE in 1985 and 1986 and on one

occasion reported the diagnosis had been made in 1981.

The RO in June 1987 received a copy of the veteran's

correspondence to a Member of Congress wherein she stated

that VA doctors had found lupus and that the disorder was not

properly diagnosed during her military service. VA's letter

of June 1987 responding to the congressional interest

mentioned that the claim to service connect SLE had been

denied after review of all of her service medical records

failed to show no findings, symptoms or diagnosis of the

disorder. The RO sent a copy of the letter to the veteran's

representative.

The veteran sought to reopen her SLE claim in October 1988

with a September 1988 letter from a VA physician. The

physician wrote that she had been cared for during the past

seven or eight years after first being seen for a face and

forearm rash that led to a dermatology evaluation that found

SLE. It was reported that her history recalled the rash in

service as well as joint pain and swelling and poor

circulation. The examiner said there was a strong

possibility that she exhibited SLE symptoms at that time and

that perhaps the symptoms were not correlated with the

disease because of the complicated nature of detection and

diagnosis. The examiner also stated that her arthritis was a

symptom of lupus.

The record shows that the veteran disagreed with the RO

determination in October 1988 to deny service connection for

SLE. However, she did not file an appeal after the RO issued

her a statement of the case in December 1988 at the mailing

address she had provided in her notice of disagreement. The

VA early in 1990 received a copy of her 1990 request for

assistance to the same Member of Congress that included a

duplicate of the VA physician's statement in 1988. VA's

letter responding to the congressional interest discussed the

recent adjudication history of the claim and the need for new

and material evidence. The RO sent a copy of the letter to

the veteran's representative. She submitted another copy of

the 1988 letter later in 1990 with an application for

individual unemployability benefits due to service-connected

disability (TDIU).

Contemporaneous VA records reported the veteran's

hospitalization for translupus myelitis. The hospital

records referred to SLE in 1981. The RO in July 1990

adjudicated the claim as one for increase, a temporary total

hospitalization rating and TDIU. VA medical records dated

later in 1990, which the RO reviewed in adjudicating a claim

for pension benefits, show her admission to a nursing home

unit for complications of SLE. The pension claim was granted

in December 1990 and nonservice-connected SLE was rated 100

percent disabling from April 6, 1990, which coincided with

the date of the veteran's admission to a VA hospital.

The record shows that the veteran in 1991 actively prosecuted

claims for restoration of aid and attendance benefits, waiver

of overpayment and election of benefits. On August 24, 1992,

the RO received a letter from the veteran's representative

and her application for TDIU. The representative's letter of

August 31, 1992, asserted the RO in October 1988 committed

clear and unmistakable error (CUE) when it denied service

connection for SLE on an incomplete record. The

representative asked the RO to obtain her Army and Air Force

service medical records and records from the Jefferson

Barracks VA medical facility that a VA physician had referred

to in a 1988 letter. Late in 1992, VA records sought were

received that included a 1990 reference to SLE since 1981.

Other VA records received from 1975 and 1979 through 1981 did

not mention SLE.

Service medical records received from the service department

in April 1993 consisted of a 1973 physical examination and

dental records from 1974. Service medical records received

in June and July 1993 consisted of duplicate records from the

1979 medical board evaluation and a 1981 military examination

that did not mention SLE. The representative on June 24,

1993, submitted service medical records from 1979 that were

laboratory analysis reports and a transfer summary dated in

February 1979 that reported laboratory data including "VDRL

was 3+..." (highlighted)

The representative in July 1993 submitted a June 1993 medical

statement that indicated a review of records the veteran had

submitted showed features in retrospect that were very

consistent with SLE. The physician stated the specific

features and laboratories from the available notes and

laboratory data had been highlighted. The representative

said in the July 1993 transmittal letter that the records the

physician referred to had been submitted on June 24. The

representative in August 1993 submitted duplicate service

medical records variously dated in 1974. In addition, the

representative asked that the RO obtain specified VA medical

records. The representative submitted this request again the

following month.

The record shows that in September 1993 the RO received VA

medical records from 1982 that showed the veteran was

evaluated early in 1982 for gland swelling in the neck and

under the left arm and that biopsy findings of the axillary

lymph nodes were interpreted as consistent with reactive

hyperplasia. In June 1982 she was evaluated for a

dermatologic problem of the arms. Material from punch

biopsies of the left arm was interpreted by one clinician as

suggestive of SLE. Another pathology report found the

changes were consistent with collagen vascular disorders

rather than SLE. The corresponding clinical reports refer to

a history of a developing lower arm rash in 1981 that was

aggravated by sunlight and healed in the winter months with

SLE to be ruled out. The records showed various clinical

entries were highlighted.

The RO in November 1993 asked for a VA medical opinion as to

whether the veteran manifested SLE in military service as

medical reviewers in 1988 and 1993 had opined. In November

1993 a VA specialist agreed with the previously referenced

medical opinions regarding onset in service and pointed out

the significance of the 3+ serology the veteran had in 1979

(false-positive test for syphilis commonly seen in SLE

patients).

A RO rating decision in November 1993 granted service

connection for SLE with loss of use of the upper extremities

and a 100 percent rating from August 24, 1992. The RO in

December 1993 notified the veteran of the effective date of

increase as a result of service connection for SLE. The

representative in January 1994 argued for an unspecified

earlier effective date based on the previously submitted CUE

claim. The RO in April 1994 adjudicated the CUE claim in

denying an earlier effective date, although the rating board

acknowledged a question of adequacy of notice after the 1984

rating decision that initially considered and denied service

connection for SLE.

Pursuant to the Board remand, the RO was asked to consider

whether consider whether the provisions of 38 C.F.R.

§ 3.156© were applicable in the determination of an earlier

effective date. Specifically, the Board asked the RO to

clarify which of the service medical records the various

examiners had relied on had been contained in supplemental

reports from the service department. The RO in February 1999

concluded that none of the records were on file at the time

of the 1984 or 1988 rating decisions that denied service

connection for SLE. The RO further found that none of the

records alone constituted new and material evidence and that

this evidence reviewed by an examiner with other evidence not

on file at the time of either prior decision established

entitlement to service connection. The RO did not adjust the

effective date since it found the medical review was

completed in connection with claim filed in 1992.

Criteria

A determination on a claim by the agency of original

jurisdiction of which the claimant is properly notified is

final if an appeal is not perfected as prescribed in Rule 302

(§ 20.302 of this part). 38 U.S.C.A. § 7105; 38 C.F.R.

§ 20.1103.

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.

A decision of a duly constituted rating agency or other

agency of original jurisdiction shall be final and binding on

all field offices of the Department of Veterans Affairs as to

conclusions based on the evidence on file at the time VA

issues written notification in accordance with 38 U.S.C.A. §

5104 (West 1991). A final and binding agency decision shall

not be subject to revision on the same factual basis except

by duly constituted appellate authorities or except as

provided in § 3.105 of this part. 38 C.F.R. § 3.104(a).

"Notice" means written notice sent to a claimant or payee

at his latest address of record. 38 C.F.R. § 3.1(q) (1984).

The claimant will be notified of any decision affecting the

payment of benefits or granting relief. Notice will include

the reason for the decision and the date it will be

effectuated as well as the right to a hearing...The

notification will also advise the claimant of his right to

initiate an appeal by filing a Notice of Disagreement...the

notice will advise him of the periods in which an appeal must

be initiated and perfected. 38 C.F.R. § 3.103 (1984).

A determination on a claim by the agency of original

jurisdiction of which the claimant is properly notified shall

become final if an appeal is not perfected as prescribed in

Rule 29 (§ 19.129). 38 C.F.R. § 19.192 (1984).

The regulations define new and material evidence as follows:

New and material evidence means evidence

not previously submitted to agency

decision makers which bears directly and

substantially upon the specific matter

under consideration, which is neither

cumulative nor redundant, and which by

itself or in connection with evidence

previously assembled is so significant

that it must be considered in order to

fairly decide the merits of the claim.

38 C.F.R. § 3.156(a) (2000).

Where the new and material evidence consists of a

supplemental report from the service department, received

before or after the decision has become final, the former

decision will be reconsidered by the adjudicating agency of

original jurisdiction. This comprehends official service

department records which presumably have been misplaced and

have now been located and forwarded to the Department of

Veterans Affairs. Also included are corrections by the

service department of former errors of commission or omission

in the preparation of the prior report or reports and

identified as such. The retroactive evaluation of disability

resulting from disease or injury subsequently service

connected on the basis of the new evidence from the service

department must be supported adequately by medical evidence.

Where such records clearly support the assignment of a

specific rating over a part or the entire period of time

involved, a retroactive evaluation will be assigned

accordingly except as it may be affected by the filing date

of the original claim. 38 C.F.R. § 3.156©.

The Board notes that the United States Court of Appeals for

the Federal Circuit (hereinafter, Circuit Court) recently

ruled that the United States Court of Appeals for Veterans

Claims (VA Claims Court) erred in adopting the test

articulated in Colvin v. Derwinski, 1 Vet. App. 171, 175

(1991). Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).

In Colvin, the Court adopted the following rule with respect

to the evidence that would justify reopening a claim on the

basis of new and material evidence, "there must be a

reasonable possibility that the new evidence, when viewed in

the context of all the evidence, both new and old, would

change the outcome." Colvin, 1 Vet. App. at 174. In light

of the holding in Hodge, the Board will analyze the evidence

submitted in the case at hand according to the standard

articulated in 38 C.F.R. § 3.156(a).

For the purpose of establishing whether new and material

evidence has been submitted, the credibility of the evidence

is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513

(1992).

The Board does not have jurisdiction to consider a previously

adjudicated claim unless new and material evidence is

presented. Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir.

1996). When new and material evidence has not been submitted

in a previously denied claim "[f]urther analysis...is

neither required, nor permitted." Butler v. Brown, 9 Vet.

App. 167, 171 (1996) (finding in a case of where new and

material evidence had not been submitted that the Board's

analysis of whether the claims were well grounded constituted

a legal nullity). Thus, the well groundedness requirement

did not apply with respect to reopening disallowed claims and

revising prior final determinations. Jones v. Brown, 7 Vet.

App. 134 (1994).

The Board notes that under 38 C.F.R. §§ 3.104(a) and 3.105(a)

(2000), taken together, a rating action is final and binding

in the absence of clear and unmistakable error. A decision

which constitutes a reversal of a prior decision on the

grounds of clear and unmistakable error has the same effect

as if the corrected decision had been made on the date of the

reversed decision. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.105(a).

VA regulations provide that "previous determinations which

are final and binding...will be accepted as correct in the

absence of clear and unmistakable error." 38 C.F.R.

§ 3.105(a). Where evidence establishes such error, the prior

decision will be reversed or amended. Id.

"Clear and unmistakable error" requires more than a

disagreement on how the facts are weighed or evaluated; the

appellant must show that the correct facts, as they were

known at the time, were not before the adjudicator or that

pertinent regulatory or statutory provisions were incorrectly

applied. Russell v. Principi, 3 Vet. App. 310, 313 (1992).

In addition, "It is the kind of error, of fact or law, that

when called to the attention of later reviewers compels the

conclusion, to which reasonable minds could not differ, that

the result would have been manifestly different but for the

error. Fugo v. Brown, 6 Vet. App. 40, 43 (1993).

A claim that the evidence was not properly weighed or

evaluated cannot constitute clear and unmistakable error, and

the allegation of clear and unmistakable error must

specifically state what error and how the outcome would have

been manifestly different. Id. at 44.

The determination regarding clear and unmistakable error must

be made based on the record and the law that existed at the

time the decision was made. Damrel v. Brown, 6 Vet.

App. 242, 245 (1994); Russell, 3 Vet. App. at 314. Evidence

that was not of record at the time of the decision cannot be

used to determine if clear and unmistakable error occurred.

Porter v. Brown, 5 Vet. App. 233 (1993).

Previous determinations which are final and binding,

including decisions of service connection, degree of

disability, age, marriage, relationship, service, dependency,

line of duty, and other issues, will be accepted as correct

in the absence of clear and unmistakable error. Where

evidence establishes such error, the prior decision will be

reversed or amended. 38 C.F.R. § 3.105(a).

For purposes of determining whether clear and unmistakable

error is present in a prior determination: (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 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 clear and unmistakable

error 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 (1994).

Service connection may be granted for a disease or injury

incurred in or aggravated by active service in the line of

duty. 38 U.S.C.A. § 1110 (West 1991).

Service connection may be granted for any disease diagnosed

after discharge, when all the evidence, including that

pertinent to service, establishes that the disease was

incurred in service. 38 C.F.R. § 3.303(d).

Service connection connotes many factors but basically it

means that the facts, shown by evidence, establish that a

particular injury or disease resulting in disability was

incurred coincident with service in the Armed Forces, or if

preexisting such service, was aggravated therein. This may

be accomplished by affirmatively showing inception or

aggravation during service or through the application of

statutory presumptions.

Each disabling condition shown by a veteran's service

records, or for which he seeks a service connection must be

considered on the basis of the places, types and

circumstances of his service as shown by service records, the

official history of each organization in which he served, his

medical records and all pertinent medical and lay evidence.

Determinations as to service connection will be based on

review of the entire evidence of record, with due

consideration to the policy of the Department of Veterans

Affairs to administer the law under a broad and liberal

interpretation consistent with the facts in each individual

case. 38 C.F.R. § 3.303(a).

With chronic disease shown as such in service (or within the

presumptive period under § 3.307) so as to permit a finding

of service connection, subsequent manifestations of the same

chronic disease at any later date, however remote, are

service connected, unless clearly attributable to

intercurrent causes.

This rule does not mean that any manifestation of joint pain,

any abnormality of heart action or heart sounds, any urinary

findings of casts, or any cough, in service will permit

service connection of arthritis, disease of the heart,

nephritis, or pulmonary disease, first shown as a clear-cut

clinical entity, at some later date.

For the showing of chronic disease in service there is

required a combination of manifestations sufficient to

identify the disease entity, and sufficient observation to

establish chronicity at the time, as distinguished from

merely isolated findings or a diagnosis including the word

"Chronic." When the disease identity is established

(leprosy, tuberculosis, multiple sclerosis, etc.), there is

no requirement of evidentiary showing of continuity.

Continuity of symptomatology is required only where the

condition noted during service (or in the presumptive period)

is not, in fact, shown to be chronic or where the diagnosis

of chronicity may be legitimately questioned. When the fact

of chronicity in service is not adequately supported, then a

showing of continuity after discharge is required to support

the claim. 38 C.F.R. § 3.303(:(.

Service connection may be granted for lupus erythematosus,

systemic although not otherwise established as incurred in

service if manifested to a compensable degree within one year

from the date of separation from service provided the

rebuttable presumption provisions of § 3.307 are also

satisfied. 38 C.F.R. § 3.309, as amended at 54 Fed. Reg.

26029, June 21, 1989.

When all the evidence is assembled, VA is responsible for

determining whether the evidence supports the claim or is in

relative equipoise, with the appellant prevailing in either

event, or whether a preponderance of the evidence is against

a claim, in which case, the claim is denied. Gilbert v.

Derwinski, 1 Vet. App. 49 (1990).

When, after consideration of all of the evidence and material

of record in an appropriate case before VA, there is an

approximate balance of positive and negative evidence

regarding the merits of an issue material to the

determination of the matter, the benefit of the doubt in

resolving each such issue shall be given to the claimant.

38 U.S.C.A. § 5107( (West 1991); 38 C.F.R. §§ 3.102, 4.3.

The Secretary shall consider all information and lay and

medical evidence of record in a case before the Secretary

with respect to benefits under laws administered by the

Secretary. When there is an approximate balance of positive

and negative evidence regarding any issue material to the

determination of a matter, the Secretary shall give the

benefit of the doubt to the claimant. Veterans Claims

Assistance Act of 2000 (hereafter VCAA), Pub. L. No. 106-475,

§ 4, 114 Stat. 2096, 2098-99 (2000) (to be codified as

amended at 38 U.S.C. § 5107).

Except as otherwise provided, the effective date of an

evaluation and award of pension, compensation or dependency

and indemnity compensation based on an original claim, a

claim reopened after final disallowance, or a claim for

increase will be the date of receipt of the claim or the date

entitlement arose, whichever is the later. 38 U.S.C.A

§ 5110; 38 C.F.R. § 3.400(:o(2)(i).

Any communication or action, indicating an intent to apply

for one or more benefits under the laws administered by the

Department of Veterans Affairs, from a claimant, his or her

duly authorized representative, a Member of Congress, or some

person acting as next friend of a claimant who is not sui

juris may be considered an informal claim. Such informal

claim must identify the benefit sought. Upon receipt of an

informal claim, if a formal claim has not been filed, an

application form will be forwarded to the claimant for

execution. If received within one year from the date it was

sent to the claimant, it will be considered filed as of the

date of receipt of the informal claim. (:( A communication

received from a service organization, an attorney, or agent

may not be accepted as an informal claim if a power of

attorney was not executed at the time the communication was

written. © When a claim has been filed which meets the

requirements of § 3.151 or § 3.152, an informal request for

increase or reopening will be accepted as a claim. 38 C.F.R.

§ 3.155.

Effective date of pension or compensation benefits, if

otherwise in order, will be the date of receipt of a claim or

the date when entitlement arose, whichever is the later. A

report of examination or hospitalization which meets the

requirements of this section will be accepted as an informal

claim for benefits under an existing law or for benefits

under a liberalizing law or Department of Veterans Affairs

issue, if the report relates to a disability which may

establish entitlement. Acceptance of a report of examination

or treatment as a claim for increase or to reopen is subject

to the requirements of Sec. 3.114 with respect to action on

Department of Veterans Affairs initiative or at the request

of the claimant and the payment of retroactive benefits from

the date of the report or for a period of 1 year prior to the

date of receipt of the report. 38 C.F.R. § 3.157.

A pending claim is an application, formal or informal, which

has not been finally adjudicated. 38 C.F.R. § 3.160.

Analysis

There are currently two statutorily authorized means to

obtain reevaluation of a final VA benefit decision. A final

decision disallowing a claim may be revised based upon a

showing of CUE in a prior decision by the Secretary or the

Board pursuant to 38 U.S.C.A. §§ 5109A and 7111, or reopened

based upon submission of new and material evidence pursuant

to 38 U.S.C.A. § 5108.

The veteran does argue that the RO committed CUE in 1988 so

that means of obtaining reevaluation is brought to the Board.

The Board notes the argument is that the RO in 1988 committed

CUE when it denied the claim on an incomplete record. The

Board will not provide a comprehensive discussion of CUE in

such instances in view of the decision to find the 1984 claim

remained, in essence, a pending claim that was not affected

by the 1988 rating decision. It is sufficient to point out

that the constructive receipt rule established in Bell v.

Derwinski, 2 Vet. App. 611 (1992) would have no application

to this case since the rating decision at issue was prior to

the date the Bell decision was issued, July 21, 1992. See,

for example, Damrel, 6 Vet. App. at 246; Karnas v. Derwinski,

1 Vet. App. 308, 313 (1991). Further, any failing to develop

for VA evidence would have been a breech of the duty to

assist, and as such it cannot be a basis for a CUE claim,

although the record may have been incomplete. Caffrey v.

Brown, 6 Vet. App. 377 (1994).

The Board also concludes that in view of grave procedural

error new and material evidence was not required to obtain a

reevaluation or review of the claim denied initially in 1984.

Thus the Board is not limited by the effective date rules

that apply in such circumstances. Further, as the additional

service medical records alone apparently did not alone

establish SLE in service the provisions of 38 C.F.R.

§ 3.156© do not require review of the 1984 decision. Nor

does the Board need to discuss another potential means of

obtaining review discussed in Bailey v. West, 160 F.3d 1360

(Fed. Cir. 1998), as the facts do not warrant its

application.

The Board observes that in Hayre v. West, 188 F.3d 1327 (Fed.

Cir. 1999) the Circuit Court created a nonstatutory means to

obtain review of a previously denied claim, holding that

while a breach of the duty to assist is not the type of error

that can provide the basis for a CUE claim in accordance with

this Court's case law, in cases of grave procedural error RO

or Board decisions are not final for purposes of direct

appeal. Id. at 1333. In Hayre the Circuit Court held that a

breach of the duty to assist in which the VA failed to obtain

pertinent SMRs specifically requested by the claimant and

failed to provide the claimant with notice explaining the

deficiency is a procedural error of, at least, comparable

gravity that vitiates the finality of an RO decision for

purposes of direct appeal.

The VA Claims Court, interpreting the reach of Hayre in

Simmons v. West, 14 Vet. App. 84, 91 (2000), noted that:

Not only do we believe that Hayre does not require that

a "garden variety" breach of VA's duty to assist, in the

development of a claim that is well grounded, be

construed as tolling the finality of an underlying RO

decision, but we also believe that it would be unwise

for this Court to extend Hayre to encompass such a duty-

to-assist violation. At some point, there is a need for

finality within the VA claims adjudication process;

thus, the tolling of finality should be reserved for

instances of "grave procedural error"--error that may

deprive a claimant of a fair opportunity to obtain

entitlements provided for by law and regulation.

The holding in Hayre as explained in Tetro v. Gober, 14 Vet.

App. 100 (2000) provided for review of unappealed decisions

where grave procedural error had occurred so as to render the

decision nonfinal. In Hayre the vitiating error was failure

to assist in obtaining specifically requested service medical

records and failure to provide the claimant with notice

explaining the deficiency. Other examples of grave

procedural error referred to in Tetro were Tablazon v. Brown,

8 Vet. App. 359, 361 (1995) (failure to provide a statement

of the case after receiving a notice of disagreement); Hauck

v. Brown, 6 Vet. App. 518, 519 (1994) (failure to provide

notification of denial tolls period to file a notice of

disagreement); Kuo v. Derwinski, 2 Vet. App. 662, 666 (1992)

(failure to send statement of the case to accredited

representative tolled 60 day period to respond) and Ashley v.

Derwinski, 2 Vet. App. 307, 311 (1992) (evidence sufficient

to rebut presumption of administrative regularity for mailing

of appeal notice).

The Board observes that at the time of the 1984 decision, the

scope of the Secretary's duty to assist concerning the

procurement of VA records and service medical records was

clearly defined. There were specific VA Adjudication

Procedure Manual M21-1 provisions paras 5.01 et seq., 22.01

et seq. and 25.01 et seq. prescribing the steps to be taken

to obtain such records. These provisions were clear

authority to guide the RO in 1984 concerning the procurement

of VA and service medical records that were specifically

mentioned. Therefore, the failure to obtain such records

would give rise to a grave procedural error comparable to

that in Hayre.

The Board believes the holding here accords due consideration

to the VA Claims Court's explanation in Simmons of the

relevant factors relied on by the Circuit Court in Hayre.

First, the VA assistance sought was "specifically requested"

regarding service medical records and VA treatment that was

directly referenced. The initial request to the service

department that produced service medical records apparently

did not include those later relied on to find SLE likely was

incurred in service. There does not appear to have been a

supplemental request prior to the mid 1990's even though the

veteran mentioned the likely existence of such treatment

records. Further, the VA records from the early 1980's were

apparently not requested until the early 1990's although

there had been earlier references to pertinent medical

treatment at the time of the 1984 claim and later in 1988.

VA adjudication procedures required the RO to obtain the VA

reports since, under the circumstances, the veteran was not

required to make a specific request. Second, the lack-of-

notice element present here is such that it may undermine the

operation of the veterans' benefits system by altering its

manifestly pro-claimant character and jeopardizing the

veteran's ability to appeal in what may appear to be a

fundamentally unfair manner. The RO did not follow up

regarding VA records or service medical records in 1984 or

1988, although it seemed obvious in view of the medical

references that more records than reflected in the claims

file were compiled. There was clearly notice of VA records

from the early 1980's relevant to the SLE claim that were not

requested until years after the 1984 claim. There is

recognition of the particularly vital role that service

medical records and VA records can play in determining the

question of in-service incurrence of a disability.

It does not appear there was notice to the veteran explaining

the failure to obtain pertinent and specifically requested

service medical records and specified VA records. These were

essential to insuring that the RO would adequately develop a

veteran's claim before deciding it on the merits. The

opinion in Simmons noted that VA has substantively defined

its obligation to obtain such records in its Manual M21-1 and

recently recognized the special role of such records and VA's

access to them by referring to VA Veterans Benefits

Administration Letter 20-99-60 at 1 (Aug. 30, 1999)

(directing all ROs that service medical records and VA

medical center records are to be requested in all cases and

considered to be records in VA custody. This policy, in view

of the Manual M21-1 provisions previously mentioned, was

substantially in effect in 1984 and is authority for the RO's

duty to assist. It was a situation where VA was in control

of evidence necessary to prove her claim. The VA Claims

Court pointed out that where documents containing certain

information are under VA control (real or constructive),

failure to produce them is likely to frustrate an award of

benefits. Simmons, 14 Vet. App. at 89-90.

As noted previously another basis to find grave procedural

error is the failure to provide notification of denial in

1984, which in turn tolls the period to file a notice of

disagreement. Hauck, 6 Vet. App. at 519. The notice in 1984

was clearly deficient in not advising the veteran that her

claim for service connection of SLE had been denied. In

addition, the 1988 decision was nonfinal since the essential

records, which had been mentioned, were not developed for by

the RO. In essence, the 1984 claim remained a pending claim.

In summary, the Board holds that Hayre as explained in Tetro

v. Gober, 14 Vet. App. 100 (2000) and Simmons should apply in

this case given its facts so as to render nonfinal the June

1984 RO decision. Further, there is no applicability of a

CUE claim in this case and the nonfinality of the 1984

decision renders the 1988 decision a nullity. The Board has

not overlooked the potential application of the recently

enacted Veterans Claims Assistance Act of 2000 [Pub. L. No.

106-475, 114 Stat. 2096 (2000)], but finds the record is

adequate for a determination of the proper effective date.

Since the claim to establish service connection for SLE was a

pending claim from May 1984 in view of the grave procedural

errors then, and which rendered the 1988 RO decision a

nullity, the effective date for service connection should

coincide with the May 15, 1984 date of claim. 38 C.F.R.

§ 3.400. The Board is not inclined to decide what rating is

warranted for the period prior to August 1992 since that

determination has not been addressed by the RO in the first

instance. Nor does the Board infer or suggest that any

particular rating is warranted for the entire period. The

Board, however, directs the attention of the appellant and

the RO to the guidance recently provided in Meeks v. West,

216 F.3d 1363, 1367 (Fed. Cir. 2000) regarding the

retroactive rating in claims such as the appellant's. See

also Bernard v. Brown, 4 Vet. App. 384 (1993).

ORDER

Entitlement to an effective date of May 15, 1984, for service

connection for SLE is granted.

Heather J. Harter

Acting Member, Board of Veterans' Appeals

(CONTINUED ON NEXT PAGE)

[Josephine]

Free,

You got that one right. It is just like being on trial for murder and your lawyer showing up the last day to try to save your life.

As you said, by the time he can step in, the claim is in such a mess, that even he won't know how to untangle the knots.

It is just like getting the knots out of one of those fine necklace chains.

You work at it and work at it until you are ready to toss it and then finally those little knots just seem to fall right out.

On my best day though, I don't have 5 years to work on that expensive necklace chain.

My husband was on diability for 4 years and it took Social Security exactly 3 months from beginning to end to process his claim, send him for a medical examination and deposit his back pay for one year in the bank, set up his monthly payments and start his medicare for him.

He actually knew the name of his case worker at Social Security and discussed the progress of his claim and she knew who he was and what his claim was all about.

After 4 years of disability, he went on the work program and was able to continue his career.

I ask myself, " How did they do all of that for him in three months? "ORGANIZATION".

Now, isn't that wonderful.

I will give credit to the BVA, as his being on Social Security Disability and the Negligence of the R.O working my claim, I was granted to advance on the docket.

The BVA was aware that my husband was on the work program and has continued his career.

I filed my first claim in 1978, when I was 34 years of age and now I am 62. It is not my fault that the VA failed to acquire my psychiatric records, as I sure told the counselor that they were there.

Now, 40 years later, I locate the missing psychiatric records in the St. Louis Archives, where they have been stored since 1964.

Josephine

Edited May 30, 2007 by Josephine