Citation Nr: 1223976	
Decision Date: 07/11/12    Archive Date: 07/18/12

DOCKET NO.  10-35 846	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to an effective date earlier than July 6, 2004 for the grant of service connection for erosive interdigit talus blastomycetous xerosis of the right hand.

2.  Entitlement to an effective date earlier than July 6, 2004 for the grant of service connection for erosive interdigit talus blastomycetous xerosis of the left hand.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARINGS ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

B. Elwood, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1980 to February 1983. 

These matters come before the Board of Veterans' Appeals (Board) from a December 2009 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Waco, Texas.  In that decision, the RO denied entitlement to earlier effective dates for the grant of service connection for erosive interdigit talus blastomycetous xerosis of the right and left hands.

In November 2010 and March 2012, the Veteran testified at hearings before a Decision Review Officer (DRO) at the RO and before the undersigned at the RO (Travel Board hearing).  Transcripts of these hearings have been associated with his claims folder.

In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim.  The documents in this file have been reviewed and are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal.


FINDINGS OF FACT

1.  In an October 2007 decision, the Board denied entitlement to effective dates earlier than July 6, 2004 for the grant of service connection for erosive interdigit talus blastomycetous xerosis of the right and left hands.

2.  The Veteran has not alleged clear and unmistakable error (CUE) in an RO rating decision with specificity.  
3.  The Veteran has not submitted a signed written motion for revision of the Board's October 2007 decision based on CUE.


CONCLUSION OF LAW

The claim for earlier effective dates for the grant of service connection for erosive interdigit talus blastomycetous xerosis of the right and left hands lacks legal merit. 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. §§ 3.105(a), 20.1100(a), 20.1404(a) (2011).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). 

The claim for earlier effective dates for the grant of service connection for erosive interdigit talus blastomycetous xerosis of the right and left hands is being dismissed as a matter of law.  As such, the VCAA is inapplicable in this case.  Livesay v. Principi, 15 Vet App 165, 178 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000); VAOPGCPREC 5-2004 (2004), 69 Fed. Reg. 59989 (2004).

Analysis

In the absence of an allegation of CUE in a prior final decision, a claimant cannot file, and VA cannot adjudicate, a freestanding claim for an earlier effective date because to do so would be to compromise the rule of finality.  Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006).

In a March 2005 rating decision, the RO granted service connection for erosive interdigit talus blastomycetous xerosis of both hands and assigned effective dates of July 6, 2004.  The Veteran submitted a timely notice of disagreement with the effective dates assigned in the March 2005 decision, a statement of the case was issued in May 2005, and a timely substantive appeal (VA Form 9) was received in June 2005.  In an October 2007 decision, the Board denied the appeal for effective dates earlier than July 6, 2004 for the grant of service connection for right and left hand disabilities.  The Board's decision was final when issued.  38 U.S.C.A. § 7104(b); 38 C.F.R. § 20.1100(a).  Thus, the only way that an earlier effective date may be assigned for the grant of service connection for the Veteran's hand disabilities is if CUE can be shown in a prior rating decision which denied service connection for such disabilities or in the Board's October 2007 decision.  38 C.F.R. § 3.105(a).

CUE is a very specific and rare kind of "error."  It is the kind of error, of fact or of 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.  Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE.  Similarly, neither can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, nonspecific claim of "error."  Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993).  In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different.  Id. at 44. 

The United States Court of Appeals for Veterans Claims (Court) has established a three-pronged test, each of which must be met before CUE is established: (1) 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, (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 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 in part Russell v. Principi, 3 Vet. App. 310 (1992)).  In order to be CUE, the error must be of a type that is outcome determinative.  Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999).

During the November 2010 DRO hearing, the Veteran alleged that there was CUE in a prior rating decision which denied entitlement to service connection for a hand disability.  The DRO asked the Veteran whether he was alleging that an error was made "back on the original application" that was submitted, and he acknowledged that he was indeed raising such an allegation.  Claims for service connection for a right hand disability were denied in November 1985 rating decisions and claims for service connection for a bilateral hand disability were denied in November 2002 and September 2004 rating decisions.  However, the Veteran did not specifically identify to which rating decision his allegation of CUE pertained.  Also, he did not allege any specific error in the November 1985 decision or any other RO decision.  Thus, the Board concludes that a claim of CUE in a prior RO decision has not been pled with sufficient specificity and no further consideration can be given to this matter at this time.  See Fugo, 6 Vet. App. at 43-44.

Furthermore, during the March 2012 Board hearing the Veteran raised the issue of CUE in the Board's October 2007 decision.  However, a motion for revision of a prior Board decision based on CUE must be in writing, and must be signed by the moving party or that party's representative.  The motion must include the name of the Veteran; the name of the moving party, if other than the Veteran; the applicable Department of Veterans Affairs file number; and, the date of the Board's decision to which the motion relates.  If the applicable decision involved more than one issue on appeal, the motion must identify the specific issue, or issues, to which the motion pertains.  Motions which fail to comply with the requirements set forth in this paragraph shall be dismissed without prejudice to re-filing under this subpart.  38 C.F.R. § 20.1404(a).  

In light of the above requirements, the Veteran's March 2012 testimony alone does not meet these criteria and he has not otherwise submitted any signed written motion for revision of the Board's October 2007 decision on the basis of CUE.  Thus, he has not submitted a sufficient motion for revision of the Board's decision on the basis CUE and no further consideration can be given to this matter.   
As there is a final Board decision that denied entitlement to earlier effective dates for the grant of service connection for erosive interdigit talus blastomycetous xerosis of the right and left hands and the Veteran has not sufficiently alleged CUE in that decision or any prior rating decision, the claim for earlier effective dates for the grant of service connection is dismissed.  See Rudd, 20 Vet. App. at 300.


ORDER

The appeal is dismissed.




____________________________________________
CHERYL L. MASON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs