Citation Nr: 1136874 Decision Date: 09/30/11 Archive Date: 10/11/11 DOCKET NO. 07-36 505 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an effective date earlier than July 29, 2003, for the grant of service connection for gouty arthritis of the bilateral feet, including on the basis of clear and unmistakable error (CUE) in a prior October 1984 rating decision. 2. Entitlement to an initial rating in excess of 20 percent for gouty arthritis of the bilateral feet. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant & Spouse ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from October 1975 to October 1978. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in Montgomery, Alabama. The Board notes that there does not appear to be a waiver of review by the agency of original jurisdiction for additional evidence received by VA since the last statement of the case. However, as the claim on appeal is being granted, and as the current evidence is not pertinent to the current earlier effective date claim based on CUE, the Board finds there is no risk of prejudice to the Veteran from proceeding without the waiver. A March 2006 rating decision granted service connection for gouty arthritis of the bilateral feet and assigned an initial rating. In July 2006, the Veteran filed a notice of disagreement with the initial rating assigned. A statement of the case must be issued on this claim. Manlincon v. West, 12 Vet. App. 238 (1998). In October 2006 and October 2007, respectively, the Veteran raised issues of entitlement to service connection for coronary artery disease and sleep apnea. These have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them and they are referred to the AOJ for appropriate action. During his hearing in June 2011, the Veteran raised the issue of whether there was clear and unmistakable error in a rating decision of October 1984. In light of the nature of a claim of CUE, the Board finds that it is inextricably intertwined with the issue of entitlement to an effective date earlier than July 29, 2003, for service connection for gouty arthritis of the bilateral feet. As such, the CUE issue will be addressed and resolved in this decision. See, e.g., Harris v. Derwinski, 1 Vet. App. 180, 183 (199 The issue of entitlement to an initial rating for gouty arthritis of the bilateral feet is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The appellant's initial claim for service connection for a bilateral foot disorder was filed at the RO in December 1978. The claim was denied in a March 1979 rating decision. The Veteran did not appeal that decision. 2. The Veteran filed another claim for service connection for a bilateral foot disorder that was received by VA on April 10, 1981. 3. The RO denied the Veteran's claim for service connection in October 1984 on the basis that there was "no evidence of gout." 4. The RO ultimately granted service connection for gouty arthritis of the bilateral feet in a March 2006 rating decision, effective from July 29, 2003, the date of receipt of a to reopen the claim for service connection. 5. VA medical records reveal that the Veteran was suffering from gout in 1984, at the time of the October 1984 rating decision. 6. The 1984 VA medical records documenting diagnoses of gout were both actually and constructively included within the record at the time of the October 1984 RO rating decision. 7. The October 1984 rating decision was not consistent with and reasonably supported by the evidence then of record, or constructively of record, and the existent legal authority; it contains undebatable error that would have manifestly changed the outcome of the case. 8. Private and VA medical records reveal a continuing diagnosis of gouty arthritis of the bilateral feet dating from 1984 to the present. 9. The earliest document in the claims file that may be accepted as a claim for service connection for a bilateral foot disorder, ultimately diagnosed as gouty arthritis of the bilateral feet, is the claim that the Veteran filed in April 1981, which was received by the RO on April 10, 1981. 10. The correct effective date for service connection for gouty arthritis of the bilateral feet is April 10, 1981. 11. There were no informal or formal claims, or written intent to file a claim for service connection for a psychiatric disorder dated after the March 1979 final denial and prior to the April 10, 1981, claim. CONCLUSIONS OF LAW 1. The October 1984 rating decision denying service connection for gout was clearly and unmistakably erroneous. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.105 (2010). 2. The criteria for an effective date of April 10, 1981, and no earlier, for the grant of service connection for gouty arthritis of the bilateral feet are met. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5110 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(b), 3.159, 3.400 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This appeal involves the effective date assigned for the establishment of service connection for gouty arthritis of the bilateral feet. Specifically, the Veteran argues that he is entitled to an earlier effective date of 1984 based on the fact that gouty arthritis was present at that time, despite the fact that in an October 1984 rating decision, the RO denied the claim based on lack of a current diagnosis. CUE Under the provisions of 38 C.F.R. § 3.105(a), 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). In order for a claim of CUE to be valid, there must have been an error in the prior adjudication of the claim; 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 incorrectly applied. Phillips v. Brown, 10 Vet. App. 25, 31 (1997); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). Further, 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 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. Simply to claim CUE on the basis that the previous adjudication improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE, nor can broad-brush allegations of 'failure to follow the regulations' or 'failure to give due process,' or any other general, non-specific claim of 'error' meet the restrictive definition of CUE. Fugo v. Brown, 6 Vet. App. 40, 44 (1993). 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). It is a very specific and rare kind of error of fact or law that compels the conclusion, as 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). Where evidence establishes CUE, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. §§ 3.104(a), 3.400(k). The Court has propounded a three-pronged test to determine whether clear and unmistakable error is present in a prior determination. First, either 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. Second, 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." Third, a determination that there was clear and unmistakable error must be based on the record and the 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) (en banc)). The Veteran filed a claim for service connection for a bilateral foot disorder that was received by VA on April 10. 1981. The RO denied the Veteran's claim for service connection in October 1984. The record contained in the claims file at this time included the Veteran's service treatment records, VA treatment records, private medical records, and a VA examination report. A review of these records reveals numerous documentations of the Veteran's gout. For example, in November 1982 the Veteran sought treatment for swelling of the left foot and was diagnosed with arthritis of an unknown type. In February 1984 the Veteran again sought treatment for pain and swelling of the foot and was diagnosed with gout. The condition was documented as present since 1977. In March 1984 he was diagnosed with acute gout of the right ankle. In May 1984 he was diagnosed with acute gout of the left ankle. In a May 1984 x-ray report, it was noted that the Veteran was suffering from acute gout of the right ankle, and that his service treatment records showed a diagnosis of possible gouty arthritis. Additionally, in a March 1984 VA Form 21-4138, the Veteran had asked the RO to obtain his medical records from the Montgomery VAMC. While the RO obtained the above-referenced records, others were not obtained until after the rating decision was issued. Specifically, these other records similarly showed that in September 1984, prior to the RO's October 1984 decision, the Veteran had been diagnosed with acute gout. Normally, a breach of a duty to assist cannot constitute CUE, and "grave procedural error" does not render a decision of VA non- final. A CUE claim is an attack on a prior judgment that asserts an incorrect application of law or fact and that an incomplete record, factually correct in all other respects, is not CUE. Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002). The RO did not obtain all of the records identified by the Veteran, resulting in a breach of duty to assist. However, analysis of this error does not end so simply. The records in question were VA medical records. Records generated by VA are constructively included within the record. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the VAMC treatment record dated in September 1984 was constructively part of the record. The October 1984 RO rating decision specifically stated that the basis for denial of service connection was that no evidence of gout was found. This is in clear contradiction with the record at the time, as described above. While the September 1984 VA treatment record was not physically in the claims file it is considered constructively part of the record. This means that the correct facts, as they were known at the time, were not before the adjudicator. The error is undebatable; if it had not been made, the outcome of the claim would have manifestly changed. The evidence of record, or constructively of record, at the time of the October 1984 RO rating decision revealed that the Veteran was diagnosed with gout and that he had reported symptoms dating back to his period of active service. This evidence supported a grant of service connection at that time. Accordingly, there is CUE in the October 1984 rating decision that denied service connection for gout. The evidence of record, or constructively of record, supported a grant of service connection for gout at that time. Earlier Effective Date A March 2006 RO rating decision granted service connection for gouty arthritis of the bilateral feet at a 20 percent disability rating and assigned an effective date of July 29, 2003, the date of claim to reopen. 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. The effective date for the grant of service connection for disability compensation is the "[d]ay following separation from active service or date entitlement arose if claim is received within 1 year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later." 38 C.F.R. § 3.400(b)(2)(i). The effective date of an award of service connection is based upon a variety of factors, including date of claim, date entitlement is shown, and finality of prior decisions. See, e.g., Lalonde v. West, 12 Vet. App. 377, 382 (1999) (holding that "the effective date of an award of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA.") The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). A "claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. § 3.1(p); see also Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a Veteran or his representative, 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 Veteran, it will be considered filed as of the date of receipt of the informal claim. When a claim has been filed which meets the requirements of 38 C.F.R. §§ 3.151 or 3.152, an informal request for increase or reopening will be accepted as a claim. 38 C.F.R. § 3.155. Here, the Veteran filed a claim for service connection for a bilateral foot disorder that was received by VA on April 10, 1981. The RO denied that claim for service connection in an October 1984 rating decision. In the above section, the Board has found the October 1984 RO rating decision to contain CUE. But for the CUE, service connection would have been granted for the Veteran's gout of the bilateral feet. Thus, the Board is compelled to find that the claim for service connection for gout can be viewed as having been filed in April 1981. Accordingly, he evidence supports an effective date of April 10, 1984 for the grant of service connection for gout, as this is the date Veteran's claim for service connection was received. An effective date earlier than this though, is not warranted. In December 1978 the Veteran sought service connection for foot injuries, including frostbite symptoms, and arguably, this can be construed as a claim for the present disorder. See Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007) (holding that while a claimant must describe the nature of the disability for which she is seeking benefits, her identification of the benefit sought does not require any technical precision.) However, the December 1978 claim was denied in a March 1979 rating decision. The Veteran was notified of his appellate rights and did not appeal the decision. The effect of that finality is to preclude an award of an effective date prior that denial. The Veteran has not alleged CUE in the March 1979 rating decision, thus, the decision is not subject to revision in the absence of CUE in the decision. 38 U.S.C.A. §§ 7105, 5109A; see Rudd v. Nicholson, 20 Vet. App. 296 (2006). A close review of the record reveals no other communication dated between the March 1979 final denial and the April 1981 claim could be interpreted as an informal claim to support the award of an earlier effective date for service connection for gout. Within this period of time, the Veteran filed only one document, dated from March 1981, in which he asks VA to add three dependents to his compensation allowance. This clearly cannot be considered a claim for service connection for gout. As such, the proper effective date is April 10, 1984. The Board notes that the exact date on which entitlement arose need not be ascertained in order to conclude that this is the earliest possible effective date here. The reason for this is that, if the entitlement arose prior to April 10, 1984, then the date of claim would be the later of the two, and hence the correct effective date as provided by 38 C.F.R. § 3.400(b)(2). Any evidence showing that the entitlement occurred after April 10, 1984 would similarly not entitle the Veteran to an effective date earlier than that already assigned. For all of these reasons, an effective date of April 10, 1981, but no earlier, is warranted for the Veteran's gouty arthritis of the bilateral feet. Notice and Assistance The Veteran's claim has been considered with respect to VA's duties to notify and assist. Given the favorable outcome noted above, no conceivable prejudice to the Veteran could result from this decision. See Bernard v. Brown, 4 Vet. App. 384 (1993). Moreover, with respect to the VA's duty to notify and assist, the VCAA does not apply to CUE actions. See Livesay v. Principi, 15 Vet. App. 165 (2001)(en banc) (holding VCAA does not apply to Board CUE motions). The general underpinning for the holding that the VCAA does not apply to CUE claims is that regulations and numerous legal precedents establish that a review for CUE is only upon the evidence of record at the time the decision was entered (with exceptions not applicable in this matter). See Fugo v. Brown, 6 Vet. App. 40, 43 (1993). As such, a discussion addressing whether VA's duties to notify and assist the Veteran have been complied with is not warranted. ORDER There is clear and unmistakable error (CUE) in the October 1984 rating decision that denied entitlement to service connection for gouty arthritis of the bilateral feet and as such, an effective date of April 10, 1981, and no earlier, for the grant of service connection for gouty arthritis of the bilateral feet is granted. REMAND In March 2006 rating decision, service connection was granted for the Veteran's gouty arthritis of the bilateral feet and a 20 percent evaluation was assigned. In a July 2006 VA Form 21-4138, the Veteran stated that he disagreed with the rating assigned. As this disagreement is dated from within one year of the rating decision, a statement of the case is required. Where an SOC has not been provided following the timely filing of a notice of disagreement, a remand, not a referral to the RO, is required by the Board. Manlincon v. West, 12 Vet. App. 238 (1999). Despite the fact that the Veteran's gouty arthritis of the bilateral feet was readjudicated in later rating decisions, this does not obviate the requirement of the issuance of an SOC. See, e.g., AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a claim remains in controversy where less than the maximum available benefit is awarded.) Accordingly, the case is REMANDED for the following action: The RO should issue an SOC with respect to the issue of entitlement to an initial increased rating for gouty arthritis of the bilateral feet. The appellant should be advised of the time period in which a substantive appeal must be filed in order to obtain appellate review of those issues. The claims file should be returned to the Board for further appellate consideration only if the appellant files a timely substantive appeal. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs