**UNITED STATES COURT OF VETERANS APPEALS**

No. 92-56

[George C. Mindenhall, Appellant,]{.smallcaps}

[v.]{.smallcaps}

[Jesse Brown,]{.smallcaps}

[Secretary of Veterans Affairs, Appellee.]{.smallcaps}

On Appeal from the Board of Veterans\' Appeals

(Decided December 20, 1994 )

*Theresa A. Pickner,* for the appellant.

*Mary Lou Keener*, General Counsel, *Norman G. Cooper*, Assistant
General Counsel, *David W. Engel*, Deputy Assistant General Counsel, and
*Leonard J. Selfon* were on the brief for appellee.

Before KRAMER, HOLDAWAY, and IVERS, *Judges*.

IVERS, *Judge*: George C. Mindenhall, through counsel, appeals from a
January 19, 1993, Board of Veterans\' Appeals (BVA or Board) decision
which denied his claim for an earlier effective date for the grant of a
permanent and total disability rating, and special monthly pension for
aid and attendance. *George C. Mindenhall,* BVA 93-01132 (Jan. 19,
1993). The Court has jurisdiction of the case under 38 U.S.C. § 7252(a).
The Court finds that a plausible basis exists in the record for the
Board\'s decision and that the decision is thus not clearly erroneous.
Accordingly, we affirm the decision.

**I. FACTS**

The appellant served in the United States military from January 1963 to
August 1966 with a tour of duty in the Republic of Vietnam. Record (R.)
at 20. In February 1980 the appellant applied for both VA
non-service-connected pension benefits and Supplemental Security Income
(SSI) benefits after injuring his left ankle. R. at 23, 31. The Regional
Office (RO) obtained medical records from the appellant\'s private
physician, Dr. Walter Robinson, Jr. R. at 35, 40-42. Dr. Robinson wrote
a letter dated April 11, 1980, to the Social Security Administration
(SSA) stating that the appellant would \"be unable to return to his
previous line of work prior to October 1, 1980.\" R. at 52. In May 1980
the RO denied the pension claim because the evidence did not show that
the appellant was permanently disabled. R. at 55. The appellant was
informed by letter dated July 9, 1980. R. at 57. The letter included a
notice of his procedural and appellate rights. R. at 58. The appellant
contends that he never received the letter informing him of the denial.
R. at 167.

In December 1990 the appellant again applied for VA pension benefits. R.
at 60. He reported SSI disability income in the amount of \$700.00 per
month. R. at 71. He requested retroactive payment because he had had
rheumatoid arthritis since 1979. *Id.* The RO requested his treatment
records. R. at 89, 90. Medical records forwarded from Kaiser Permanente
Hospital indicated that the appellant had had rheumatoid arthritis since
1979. R. at 94-101. The appellant was provided a VA physical examination
and Dr. Gerald Katz diagnosed the appellant with severe rheumatoid
arthritis. R. at 108. The RO found that the appellant was entitled to a
special monthly pension due to his need for regular aid and attendance
effective December 3, 1990. R. at 121. However, the RO denied any
retroactive payment on the basis that the evidence of record did not
show that the appellant had been precluded from filing an application
for a pension for a period of at least thirty consecutive days within
the past year. *Id.* The appellant filed a Notice of Disagreement (NOD)
with regard to the denial for retroactive payments, stating that
throughout 1990 he received extensive treatments and was hospitalized.
R. at 126, 129, 132, 145. In order to verify his claim, he requested
that VA obtain his complete medical records. R. at 145. A Statement of
the Case was issued. R. at 162. He appealed to the BVA, and on his Form
1-9 the appellant argued that he had never been notified of the July
1980 denial and that he certainly would have appealed if he had known.
R. at 167. He further stated that he had been totally incapacitated
since 1988 and requested that VA obtain his medical records from Kaiser
dating back to 1979. R. at 168. VA obtained the records from 1990-91. R.
at 175-200.

On July 30, 1991, VA conducted a hearing and the appellant testified
that the SSA required him to file for VA benefits, that he did not
pursue a claim with VA because he thought that his VA benefits would be
included with his SSA benefits, that he was hospitalized in 1979-1981 on
numerous occasions, and that he was informed by his attorney that the
SSA would take care of his VA benefits. R. at 203-16. He also testified
that in 1990 he had three operations, that he was hospitalized for about
a week each time, and that a nurse came to his house to take care of the
ankle. R. at 210-12. The hearing officer held that clear and
unmistakable error (CUE) did not exist in the May 1980 decision, and
denied the claim for retroactive benefits because the appellant was not
incapacitated for a period of 30 consecutive days during the year
preceding his December 1990 application and rendered unable to file a
claim for an earlier effective date. R. at 217-18. In a November 1991
BVA decision the claim was denied. R. at 229. The appellant appealed to
this Court and in October 1992 the case was remanded with instructions
to obtain the 1980 SSA decision and complete medical records. R. at 234.
The appellant submitted copies of the SSA decision and his medical
records. R. at 240-728. The SSA decision indicated that the appellant
had been found disabled as of July 17, 1979. R. at 241. On January 19,
1993, the BVA denied entitlement to an effective date earlier than
December 3, 1990, for the grant of a permanent and total disability
rating for pension purposes, and special monthly pension for aid and
attendance, stating:

> Since it is clear in retrospect that, on the basis of evidence
> received by VA after December 3, 1990, the veteran became permanently
> and totally disabled for pension purposes long before a year prior to
> the receipt of the December 3, 1990, reopened claim, the provisions
> for retroactivity of the pension award prior to December 3, 1990,
> under 38 C.F.R. § 3.400(b)(1)(ii)(B) do not apply.

*Mindenhall,* BVA 93-01132, at 10. In addition, the BVA held that the
May 1980 RO decision did not contain CUE and that the appellant was
properly notified of the decision and did not appeal, making that
decision final. *Id.* at 3-4. As to the appellant\'s argument that his
condition had prevented him from filing an appeal to the 1980 decision,
the BVA found that no good cause was shown to extend the time limit for
filing an NOD. *Id.* at 6, 9. The appellant filed a timely appeal with
this Court.

**II. ANALYSIS**

The issue before the BVA was whether the veteran was entitled \"to an
earlier effective date for the grant of a permanent and total disability
rating for pension purposes and special monthly pension on account of
the need for the regular aid and attendance of another person, prior to
December 3, 1990.\" R. at 5. However, in \"POINT I\" of his appellate
brief, the appellant\'s counsel argues that there is new and material
evidence, that the BVA failed in their duty to assist, and that the BVA
failed to apply \"both 38 C.F.R. §4.10 (1991) and 38 C.F.R. §4.15 (1991)
\[sic\] to his claim because the Board failed to address the effect of
the disability on the veteran\'s daily activities or the \[e\]ffect the
same disability would have on the average person\'s ability to follow
substantial gainful employment.\" Appellant\'s brief at 9-13. In \"POINT
II\" of the brief, the appellant argues that he did not receive the
RO\'s decision dated July 9, 1980, and that had he received the
decision, he would have exercised his appellate rights. Appellant\'s
brief at 13. Although it is obscure in the appellant\'s statement of the
issues, the issue that the appellant argues in the brief is whether he
is entitled to an earlier effective date for VA benefits. The Secretary
argues that a plausible basis exists in the record for the Board\'s
findings and conclusions, and that the decision is thus not clearly
erroneous. Appellee\'s brief at 1, 15.

**A. Finality of the 1980 RO Decision**

Pursuant to 38 U.S.C. § 7105 an NOD initiates appellate review which is
completed by a substantive appeal after a Statement of the Case is
issued. 38 U.S.C. § 7105(a). The NOD must be in writing and filed within
one year \"from the date of mailing of notice of the result of initial
review or determination.\" 38 U.S.C. § 7105(b)(1); *see* 38 C.F.R. §§
20.200, 20.201, 20.302(a) (1993) (\"The date of mailing the letter of
notification of the determination will be presumed to be the same as the
date of that letter for purposes of determining whether an appeal has
been timely filed.\"). *See Rowell v. Principi,* 4 Vet.App. 9, 17
(1993); *Cuevas v. Principi,* 3 Vet.App. 542, 546 (1992) (where claimant
did not perfect appeal by timely filing substantive appeal, RO rating
decision became final). The agency of original jurisdiction must
provide, along with the mailing of the decision, a notification to the
appellant of his or her procedural due process and appellate rights. 38
U.S.C. § 7105, 38 C.F.R. §§ 3.103, 19.25 (1993). The regulations permit
an extension to perfect a claim or challenge a decision for \"good cause
shown,\" and further state:

> Where an extension is requested after expiration of a time limit, the
> action required of the claimant or beneficiary must be taken
> concurrent with or prior to the filing of a request for extension of
> the time limit, and good cause must be shown as to why the required
> action could not have been taken during the original time period and
> could not have been taken sooner than it was. Denials of time limit
> extensions are separately appealable issues.

38 C.F.R. § 3.109(b) (1993).

For the reasons set forth below, the Court holds that the BVA\'s
determinations (1) that the RO timely informed the appellant of its May
1980 decision; (2) that the appellant did not timely file an NOD as to
that decision; (3) and that good cause to extend the time for filing an
NOD was not shown, are not clearly erroneous.

Here, the appellant admittedly did not file an NOD. However, the
appellant contends that he never received the decision from the RO nor
was advised of his appellate and procedural rights. The Board\'s January
1993 decision found that notice of the initial denial of the
appellant\'s claim had been mailed on July 9, 1980, to the address
provided by the appellant when he filed his original claim. R. at 7-8,
57. Because he did not file an NOD within one year after that date, the
BVA found that the RO decision had become final. This Court has held
that the law requires only that the VA mail a notice and then presumes
the regularity of the administrative process \"in the absence of clear
evidence to the contrary.\" *Ashley,* 2 Vet.App. at 64-65 (*citing to
United States v. Chemical Foundation, Inc.,* 272 U.S. 1, 14-15, 47 S.Ct.
1, 6, 71 L.Ed. 131 (1926); *see also I.N.S. v. Miranda,* 459 U.S. 14,
18, 103 S.Ct. 281, 283, 74 L.Ed.2d 12 (1982); *Morris v. Sullivan,* 897
F.2d 553, 560 (D.C.Cir. 1990). According to the appellant\'s brief, the
address on the VA letter is the address at which Mr. Mindenhall resided
in 1980 (Appellant\'s brief at 13). The appellant\'s statement of
non-receipt, standing alone, is not the type of \"clear evidence to the
contrary\" which is sufficient to rebut the presumption of regularity of
the notice. Furthermore, the Court notes that the appellant originally
applied for VA benefits in February 1980, VA mailed the denial in July
1980, and the appellant did not contact VA again until December 1990 (R.
at 23, 31, 57, 60). The appellant\'s inability or incapacity to contact
VA for a ten-year period following the 1980 application has not been
shown. Therefore, the presumption of regularity of the administrative
process \"in the absence of clear evidence to the contrary\" applies to
the VA mailing of the RO decision in the same manner as it applies to
the BVA mailing of the decision. *Ashley, supra.* The 1980 RO decision
was not appealed and was, therefore, final.

**B. Entitlement to an Earlier Effective Date for Benefits**

The Board determined that the appellant did not meet the requirements
for an effective date for benefits earlier than December 3, 1990. The
Court reviews the Board\'s factual findings under the \"clearly
erroneous\" standard of review. 38 U.S.C. § 7261(a)(4); *Stanton v.
Brown*, 5 Vet.App. 563, 567 (1993); *Gilbert v. Derwinski*, 1 Vet.App.
49, 53 (1990). Under the \"clearly erroneous\" standard of review, \"if
there is a \'plausible\' basis in the record for the factual
determinations of the BVA, even if this Court might not have reached the
same factual determinations, \[the Court\] cannot overturn them.\"
*Gilbert*, 1 Vet.App. at 53. For the reasons stated below, we hold that
the Board\'s findings are not clearly erroneous.

The effective date of an award for pension benefits is usually the date
of the receipt of the application by VA. 38 U.S.C. § 5110(a). The
regulations contain requirements for entitlement to a retroactive award
which are contained in 38 C.F.R. § 3.400(b)(1)(ii)(B) (1993), and the
appellant argues that retroactivity should be applied to his claim.
However, the appellant did not meet the disability criteria outlined in
this provision, which require that a veteran\'s claim for a retroactive
award be filed within one year of the date that the disability became
permanently and totally disabling, or that he have undergone extensive
hospitalization that would have prevented the filing of a claim.
Therefore, the BVA was correct in its determination that this provision
is not applicable to the appellant.

**C. Clear and Unmistakable Error**

On appeal, the appellant also argues that this Court must set aside
prior RO and BVA decisions if it finds clear and unmistakable error in
those decisions. Appellant\'s brief at 8. Without specifying the dates
of the RO and BVA decisions, the appellant contends that the \"BVA\'s
original and supplemental \[d\]ecisions are clearly erroneous as the
veteran was permanently and totally disabled for pension benefit
purposes prior to the VARO\'s initial denial.\" *Id.* This Court has
exclusive jurisdiction to review BVA decisions. 38 U.S.C. § 7252(a).
Review of BVA decisions in this Court is limited to the \"record of
proceedings before the Secretary and the Board.\" 38 U.S.C. § 7252(b).
In reviewing a BVA decision finding no clear and unmistakable error in a
prior RO adjudication, the Court\'s standard of review is limited to the
review of the BVA decision for a determination as to whether that
conclusion was \"arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law\" and whether the Board provided an
adequate statement of reasons or bases for its determination. *Russell
v. Principi,* 3 Vet.App. 310, 314-15 (1992) (en banc) (quoting 38 U.S.C.
§ 7261(a)(3)(A)); *Smith v. Brown,* \_\_\_F.3d\_\_\_, No. 93-7043, (Fed.
Cir. Aug. 12, 1994); *see* 38 U.S.C. § 7104(d)(1); *Gilbert,* 1 Vet.App.
at 56-57. The United States Court of Appeals for the Federal Circuit
recently held that this Court\'s authority to review CUE under 38 C.F.R.
§ 3.105(a) (1993) \"relat\[es\] only to review of AOJ \[agency of
original jurisdiction\] adjudicatory decisions and not to those of the
Board.\" *Smith,* \_\_\_F.3d at \_\_\_, slip op. at 15. Therefore, under
*Smith,* the appellant may aver CUE only with respect to the 1980 RO
decision.

An appellant may not simply allege CUE on the basis that prior
adjudications had improperly weighed and evaluated the evidence. *Fugo
v. Brown,* 6 Vet.App. 40, 43-44 (1993). A claim of CUE must be specific
and not a mere broad allegation of a failure to follow the regulations,
or the failure to give due process, or any other general, unspecific
error. *Fugo,* 6 Vet.App. at 44; *Russell,* 3 Vet.App. at 310 (an
appellant must assert \"more than a disagreement as to how the facts
were weighed or evaluated). As to the 1980 RO decision, CUE was not pled
in accordance with the Court\'s standard in *Fugo.* Because the
appellant failed to set forth a CUE claim specifying the 1980 RO
decision in his substantive appeal to the BVA, the BVA\'s conclusions
and determinations were not \"arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.\" *Russell, supra;
see* 38 U.S.C. § 7261(a)(3)(A).

**III. CONCLUSION**

For the reasons stated above, the January 19, 1993, decision of the BVA
is AFFIRMED.