Citation Nr: 0604337 Decision Date: 02/15/06 Archive Date: 02/28/06 DOCKET NO. 04-25 736 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Whether an August 10, 1995, rating decision that denied entitlement to service connection for a skin rash contained clear and unmistakable error. 2. Entitlement to an effective date prior to February 24, 1997, for the award of service connection for polymorphous light eruption. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Dillon, Counsel INTRODUCTION The veteran served on active duty from November 1968 to December 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2003 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. FINDINGS OF FACT 1. The statutory and regulatory provisions at the time of the August 1995 rating decision were incorrectly applied. 2. The veteran's claim for entitlement to service connection for a skin rash was received by the RO on November 30, 1994. CONCLUSIONS OF LAW 1. The August 1995 rating decision contains clear and unmistakable error in denying entitlement to service connection for a skin rash. 38 C.F.R. § 3.105(a) (2005). 2. The criteria for an effective date of November 30, 1994, for the grant of service connection for polymorphous light eruption, have been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In an August 10, 1995, rating decision, the RO denied entitlement to service connection for a skin rash, to include as due to Agent Orange exposure. The veteran was notified of this determination and of his appellate rights by letter dated August 15, 1995, and he did not appeal. Accordingly, the August 1995 determination by the RO is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104(a), 20.302(a), 20.1103 (2005). The law provides that previous determinations that are final and binding, including decisions of service connection, will be accepted as correct in the absence of clear and unmistakable error (CUE). Where evidence establishes such error, however, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). The Court has held that for there to be a valid claim of CUE, there must have been an error in the prior adjudication of the claim. See Russell v. Principi, 3 Vet. App. 310, 313 (1992) (en banc). Either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were improperly applied. Id. CUE is error that is 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. Id. at 313-14. 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. Id. at 314. CUE 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). The error must be one that, had it not been made, would have manifestly changed the outcome at the time that it was made. Kinnaman v. Derwinski, 4 Vet. App. 20, 26 (1993). See Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir.) (explaining that to prove the existence of CUE, a claimant must show that an error occurred that was outcome-determinative, that is, an error that would manifestly have changed the outcome of the prior decision). To simply claim CUE on the basis that previous adjudication had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). The veteran essentially contends that CUE exists in the August 1995 rating decision at issue because the very same skin condition that was granted service connection in August 1997 existed in August 1995 and that the correction of such an error would warrant a grant of service connection effective November 29, 1994, the date of the original claim. While such an argument appears to be an assertion that the previous adjudicator improperly weighed and evaluated the evidence, a review of the August 1997 rating decision in which the RO granted service connection indicates the evidence before the RO at that time was identical to the evidence before the RO at the time of the August 1995 adjudication. Most significantly, the evidence included the report of a December 1994 VA examination and the service medical records, which in conjunction served as the basis for a grant of service connection in August 1997. It cannot be ignored in this case that the August 1997 VA adjudicator who granted service connection certified that CUE had been committed and that [e]ntitlement to service connection should have been granted for polymorphous light eruption as it appeared in the service medical records. Each assigned effective date of this corrected rating corresponds to the date from which benefits would have been payable if it had been made on the date of the reversed decision (38 C.F.R. § 3.400(k)). However, the RO assigned the date of receipt of the claim received on February 24, 1997, as the effective date for the grant of service connection, rather than the date of receipt of the original claim in 1994. The August 1995 rating decision determined that the veteran's skin disorder was a congenital or developmental defect, despite no competent evidence of characterizing the skin disorder as such. Conversely, the RO found in its August 1997 rating decision, based on the same facts considered in 1995, that the service medical records documented skin complaints associated with light exposure and that such a disorder was found in the 1994 VA examination. See 38 C.F.R. § 3.303 (2005). In other words, with precisely the same limited evidence of record, there appears to be no reasonable basis for the difference in conclusion reached by the August 1995 rating decision than that reached by the August 1997 rating decision - other than the existence of CUE as certified by the August 1997 rating decision. Accordingly, the August 10, 1995, rating decision denying service connection for polymorphous light eruption was clearly and unmistakably erroneous. The date of entitlement to an award of service connection is the day following separation from active service or the date entitlement arose, if the claim is received within one year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(b)(2). A "claim" is defined in the VA regulations as "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) (2005). An informal claim is "[a]ny communication or action indicating an intent to apply for one or more benefits." 38 C.F.R. § 3.155(a) (2005). In the instant case, the veteran's claim for entitlement to service connection for a rash was received on November 30, 1994. Since the claim was not received within one year of service separation, the effective date for service connection would be the date of receipt of claim or date entitlement arose, whichever is later. Accordingly, an effective date of November 30, 1994, the date of receipt of the veteran's original claim is warranted. As this decision is a grant of the benefit sought on appeal, a discussion of the Veterans Claims Assistance Act of 2000 and the effect it had on the veteran's claim is not needed. ORDER Based on a finding of CUE in an August 1995 rating decision, an effective date of November 30, 1994, for the award of service connection for polymorphous light eruption is granted, subject to the laws and regulations governing the payment of monetary benefits. ___________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs