Citation Nr: 0919324 Decision Date: 05/22/09 Archive Date: 05/26/09 DOCKET NO. 07-13 400A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an effective date earlier than June 11, 1962 for the grant of service connection for a right shoulder disability, including the question of whether there was clear and unmistakable error (CUE). REPRESENTATION Appellant represented by: Katrina J. Eagle, Esq. ATTORNEY FOR THE BOARD D. Van Wambeke, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1943 to December 1945. He also had a subsequent, unverified period of service with the Naval Reserves. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the claims. The Board notes that the Veteran's representative attempted to revoke her power of attorney in a letter dated January 2009. The Board found, however, that the representative's attempts at revocation did not comply with 38 C.F.R. § 20.608. In a February 2009 letter, the representative was informed that her January 2009 letter had been construed as a motion to withdraw from VA representation and that the motion did not comply with 38 C.F.R. § 20.608. The representative was further informed that the appeal would be held in abeyance for 30 days, or until a revised motion was received and considered, and that if the Board had not heard from her within 30 days, it would assume that she wished to remain the Veteran's representative and review of the appeal would resume. As review of the claims folder does not reveal that the Veteran's representative submitted a response to the February 2009 letter within the allotted time frame, the Board will continue to recognize her as the Veteran's representative. In a July 2008 statement in support of claim, the Veteran indicated that he wished to reopen his previously denied claim for service connection for a lower back disorder. The RO acknowledged receipt of this claim in an October 2008 letter, but there is no indication that this issue has been adjudicated. As such, it is REFERRED to the RO for appropriate action. FINDINGS OF FACT 1. The Veteran filed an original claim of service connection for a right shoulder disorder in August 1949, which he withdrew in October 1949, prior to RO adjudication of the claim. 2. The Veteran filed a new claim for service connection for a right shoulder disorder in June 1962. 3. In a rating decision dated December 1962, the RO granted service connection for right shoulder dislocation recurrent, operated, effective June 11, 1962. 4. The Veteran did not submit a claim for service connection for a right shoulder disorder between his October 1949 withdrawal and June 11, 1962. 5. The December 1962 rating decision was clearly and unmistakably erroneous by granting an effective date of June 11, 1962 for the grant of service connection for a right shoulder disorder. CONCLUSION OF LAW The rating decision of June 11, 1962 contained clear and unmistakable error (CUE). 38 C.F.R. § 3.156(c) (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran filed a claim for service connection for a right shoulder disorder that was received by the RO in August 1949. See Veteran's Application for Pension of Compensation for Disability Resulting from Service in the Active Military or Naval Forces of the United States. In a letter dated October 24, 1949, the Veteran requested that the RO consider the letter a withdrawal of his disability claim effective as of that date. The RO acknowledged receipt of this letter and informed the Veteran that in accordance with his request, his claim had been placed in a disallowed status and that any further communication received from him indicating an intention to reopen would be regarded as a new claim. See November 1949 letter. The RO continued to develop the Veteran's claim, however, and in January 1950, it obtained service hospital records that confirmed the Veteran's in- service treatment for a right shoulder disorder. These records were not previously contained in the record. On June 11, 1962, the RO received a VA Form 8-526, in which the Veteran sought entitlement to service connection for a right shoulder disorder. In a December 1962 rating decision, the claim for service connection for right shoulder dislocation recurrent, operated, was granted with a noncompensable evaluation effective June 11, 1962. The Veteran was informed of this decision by letter dated December 18, 1962. Pursuant to VA regulation, the Veteran had one year from the date of the notice of the December 1962 rating decision that granted service connection for right shoulder dislocation recurrent, operated, within which to file an application for review with the effective date assigned. The claims folder contains no such communication, nor has the Veteran claimed that he submitted a timely application for review regarding the effective date. As there was no timely application for review, the December 1962 rating decision establishing June 11, 1962 as the effective date for service connection for right shoulder dislocation recurrent, operated, is final. 38 U.S.C.A. § 4005(b) (1958); 38 C.F.R. § 3.104(a) and (c) (1956, Supp. 1962). The Veteran now contends that he is entitled to an effective date prior to June 11, 1962 for the grant of service connection for his right shoulder disability. He asserts that the effective date should be August 10, 1949, the date of his original claim for service connection. See July 2001 VA Form 9 with attachment. The Veteran disagrees with the RO's finding that in October 1949, he expressly, and in writing, withdrew his original claim for service connection. He argues that the word "withdraw" provides the right to return and that he had the right to resubmit his original claim. The veteran further contends that, therefore, the effective date should be in August 1949. See August 2006 notice of disagreement (NOD); see also statements in support of claim dated December 2006, March 2007, April 2007 and September 2007. The Board notes the case of Rudd v. Nicholson, 20 Vet. App. 296 (2006), which held that if a claimant wishes to obtain an effective date earlier than that assigned in a RO decision, the claimant must file a timely appeal as to that decision. Otherwise, the decision becomes final and the only basis for challenging the effective date is a motion to revise the decision based on CUE. The Court also held that there can be no freestanding claim for an earlier effective date and that it was error to entertain such a claim. Rather, the proper course of action would have been to dismiss the appeal. As noted above, the Veteran did not voice any disagreement with the RO's assignment of an effective date of June 11, 1962 within one year following his receipt of the December 1962 notice letter. Therefore, pursuant to the decision in Rudd, the only basis on which to grant an effective date earlier than June 11, 1962 for the establishment of service connection for the Veteran's right shoulder disability would be a determination there was CUE in the December 1962 rating decision. Pursuant to 38 C.F.R. § 3.105(a), a prior final decision can be reversed or amended where evidence establishes "clear and unmistakable error." For CUE to exist: (1) "[e]ither the correct facts, as they were known at that 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 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 CUE 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, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992)). The Court has consistently stressed the rigorous nature of the concept of CUE. "Clear and unmistakable error 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). To constitute CUE, errors must be "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." Russell, 3 Vet. App. at 313. "It must always be remembered that CUE is a very specific and rare kind of 'error.'" Fugo v. Brown, 6 Vet. App. 40, 43 (1993). A simple disagreement with how the RO evaluated the facts is not sufficient to raise a valid claim of CUE. Luallen v. Brown, 8 Vet. App.92, 95 (1995). In this case, the Veteran asserts that there was CUE when the RO failed to acknowledge and accept the findings of a VA physician who determined that his disabling injuries dated from the time of military service. The opinion the Veteran points to is found in a March 2000 VA compensation and pension (C&P) joints examination report. The Veteran also asserts that the RO denied his claim and that it was not until after the March 2000 VA examination that he was granted compensation for his right shoulder disability. He contends, therefore, that his claim for service connected disability should be made effective not later than the date of his August 10, 1949 claim for the severe injuries that occurred in 1945. See statements in support of claim received April 2007 and September 2007. While the Board is not impressed by the arguments of the Veteran, the Board otherwise finds that the December 1962 rating decision contained CUE. As was noted above, in order to find that the December 1962 rating decision was clearly and unmistakably erroneous, it must be concluded that the evidence of record at the time that decision was rendered was such that the only possible conclusion based on the available evidence of record was that the submission of the relevant service medical records in January 1950 required the assignment of an effective date based on the Veteran's original claim for service connection filed on August 10,1949. CUE requires that error, otherwise prejudicial, must appear undebatably. Atkins v. Derwinski, 1 Vet. App. 228 (1991). The Board finds that the December 1962 rating decision was clearly and unmistakably erroneous in not assigning an effective date in 1949 for the grant of service connection for a right shoulder disorder. In December 1962 and in 1949, where 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 Veterans Administration. 38 C.F.R. § 3.156(c) (2008); 38 C.F.R. § 3.156(e) (1956, Supp. 1962); 38 C.F.R. § 3.201 (1949). In addition, when the new and material evidence consists of service department records, the effective date is to agree with the evaluation (since it is considered these records were lost or mislaid) on the date of receipt of the claim on which the prior evaluation was made, whichever is later, subject to the rules on original claims filed within 1 year after separation from service. See 38 C.F.R. § 3.400(q)(2) (2008); 38 C.F.R. § 3.400(q)(2) (1956, Supp. 1962). In this regard, the Board finds that with the January 1950 receipt of the service medical records evidencing in-service treatment and diagnosis of a right shoulder disorder, and the fact that these records were presumed to have been previously lost or mislaid by VA and were clearly relevant, the RO was then required to assign an effective date for the grant of service connection for a right shoulder disorder that was consistent with the evaluation contained within those records. Therefore, since the Veteran's original claim was filed on August 10, 1949, the assignment of an effective date of June 11, 1962 was undebatably erroneous. In summary, the Board finds that once the record showed relevant 1945 in-service findings and symptoms of a right shoulder disorder that were not previously of record, the effective date for the grant of service connection had to be based on the Veteran's original claim in 1949. Consequently, the Board finds that the December 1962 rating decision contained CUE with respect to its assignment of an effective date of June 11, 1962, and that the effective date for the grant of service connection for the Veteran's right shoulder disorder should instead be August 10, 1949. ORDER The rating decision of December 1962 contained clear and unmistakable error by assigning an effective date of June 11, 1962 for the grant of service connection for a right shoulder disorder, and an effective date of August 10, 1949 is granted. ______________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs