Citation Nr: 1301930 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 11-25 599 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an effective date earlier than September 3, 2008, for the grant of service connection for residuals of cold injuries of the feet, including on the basis of clear and unmistakable error (CUE) in a July 1970 rating decision initially considering and denying this claim. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A.E.H. Gibson, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from June 1948 to April 1952. This appeal to the Board of Veterans' Appeals (Board) is from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In that decision, the RO granted service connection for residuals of cold injuries of the feet and assigned initial 30 percent ratings retroactively effective from September 3, 2008, the date of receipt of the Veteran's petition to reopen this previously denied, unappealed, claim on the basis of new and material evidence. In response, he appealed for an earlier effective date for the grant of service connection for this disability, alleging he was entitled, instead, to an effective date of January 30, 1970, the date of receipt of his initial claim for this same disability. In July 2012, as support for his claim for an earlier effective date, he testified at a hearing at the RO in San Antonio, Texas, before the undersigned Veterans Law Judge of the Board, also commonly referred to as a Travel Board hearing. The RO in San Antonio is a satellite office of the RO in Houston, which, as mentioned, decided the claim and is the RO that certified the appeal to the Board. The Board advanced this appeal on the docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran served on active duty from June 1948 to April 1952 but did not file his initial claim of entitlement to service connection of this disability at issue until January 1970, so well more than one year after his discharge from service. 2. His initial claim was denied in a July 1970 decision that he did not appeal, so that as a consequence has become final and binding on him based on the evidence then of record. 3. In September 2008, he filed a petition to reopen this claim, and the RO later granted his claim for this bilateral foot disability in the May 2010 rating decision that precipitated this appeal, assigning an effective date of September 3, 2008, coinciding with the date of receipt of his petition to reopen this claim. 4. The prior July 1970 rating decision that considered and denied his initial claim of entitlement to service connection for this bilateral foot disability did not involve CUE; that earlier decision was not fatally flawed or undebatably erroneous considering the evidence then of record and statutes and regulations then in effect. CONCLUSION OF LAW The criteria are not met for an effective date earlier than September 3, 2008, for the grant of service connection for this bilateral foot disability, including on the basis of CUE in the prior July 1970 final and binding rating decision initially considering and denying this claim. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.1, 3.105, 3.155, 3.157, 3.159, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has reviewed all of the evidence in the Veteran's claims file, and has an obligation to provide an adequate statement of reasons or bases supporting this decision. See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). However, while the Board must review the entire record, it need not discuss each piece of evidence. See Gonzales, 218 F.3d at 1380-81. The Board's analysis, therefore, focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, concerning the claim. The Veteran must not assume the Board has overlooked pieces of evidence that are not explicitly discussed. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board address its reasons for rejecting evidence favorable to him. Id. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, meaning about evenly balanced for and against the claim, with the Veteran prevailing in either event, or whether instead the preponderance of the evidence is against a claim, in which case the claim is denied. Id. Veterans Claim Assistance Act (VCAA) The VCAA provides that VA has duties to notify and assist a claimant in substantiating a claim for VA benefits upon receipt of a complete or substantially complete application. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). This appeal, however, arises from the Veteran's disagreement with the effective date assigned following the granting of service connection for his bilateral foot disability. So the claim, as it arose in its initial context, has been substantiated - indeed granted. Therefore, additional VCAA notice concerning a "downstream" issue such as the effective date assigned for this grant is not required because the initial intended purpose of the notice has been served. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA's General Counsel also has held that no additional VCAA notice is required in this circumstance for such a downstream issue, and that a Court decision suggesting otherwise is not binding precedent. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). The Board is bound by the General Counsel's opinion, as the Chief Legal Officer of the Department. 38 U.S.C.A. § 7104(c). Instead of issuing an additional VCAA notice letter in this situation concerning the downstream earlier-effective-date claim, the provisions of 38 U.S.C.A. § 7105(d) require VA to instead issue a statement of the case (SOC) if the disagreement is not resolved. And since the RO issued an SOC in August 2011 addressing the downstream effective-date claim, which included citations to the applicable statutes and regulations and a discussion of the reasons and bases for not assigning an effective date earlier than September 3, 2008, no further notice is required. See also Goodwin v. Peake, 22 Vet. App. 128 (2008) and Huston v. Principi, 17 Vet. App. 195 (2003). Consequently, the Board finds that all necessary development of the downstream effective-date claim has been accomplished, and therefore appellate review of this claim may proceed without prejudicing the Veteran. To the extent he is alleging CUE in the prior January 1970 RO decision initially considering and denying his claim of entitlement to service connection for a bilateral foot disability as a residual of cold weather injury, the VCAA has no application to this specific component of his claim for an earlier effective date retroactive to that point in time (i.e., back to his initial January 1970 claim). Indeed, the Court has specifically held that the VCAA has no application to allegations of CUE as a matter of law, regardless of whether the Board or RO issued the earlier decision in question. See Livesay v. Principi, 15 Vet. App. 165, 178-79 (2001) (en banc); Parker v. Principi, 15 Vet. App. 407 (2002). See, too, 38 U.S.C.A. §§ 5109A(a), 7111(a); 38 C.F.R. §§ 20.1400-20.1411 (2012). Moreover, as will be explained, resolution of this claim ultimately turns on when the Veteran filed this claim, and more specifically a petition to reopen this claim, so an examination and opinion - including a "retrospective" opinion, are not needed to fairly decide this claim. See 38 U.S.C.A. § 5103A(d)(2)(A)-(C); 38 C.F.R. § 3.159(c)(4)(A)-(C). See also Chotta v. Peake, 22 Vet. App. 80, 86 (2008). Accordingly, the Board finds that no further notice or assistance is needed to meet the requirements of the VCAA. Analysis The Veteran and his representative argue that the effective date of the award of service connection for the bilateral foot disability should coincide with the initial claim for this condition, filed in January 1970, because the RO did not properly address and develop the claim at that time. Specifically, they assert the records of the Veteran's hospitalization while in service should have been obtained and associated with his claims file for consideration in that initial decision. They alternatively argue that the January 1970 claim was not addressed at all. Generally, and except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation (DIC) 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 later. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2012). If a claim for disability compensation, i.e., service connection, is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400(b)(2) (2012). A rating decision becomes final and binding if the Veteran does not timely perfect an appeal of the decision, however. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. Previous determinations that are final and binding, including decisions of service connection, will be accepted as correct in the absence of collateral attack by showing the decision involved CUE. 38 C.F.R. § 3.105(a). Generally, a rating decision does not become final and binding until written notification of the decision is issued to the claimant. See 38 U.S.C.A. § 5104(a); 38 C.F.R. §§ 3.103, 3.104(a), 3.160(d), 19.25. See also Best v. Brown, 10 Vet. App. 322, 325 (1997) (for a VA decision to become final and binding on a Veteran, he or she must first receive written notification of the decision); see, as well, Tablazon v. Brown, 8 Vet. App. 359, 361 (1995), citing Hauck v. Brown, 6 Vet. App. 518 (1994) (where an appellant never received notification of a decision denying his or her claim, then the usual one-year limit for timely appealing the decision does not begin to accrue ("run"); instead it is tolled ("stopped")). The written notification also must explain the reasons and bases for the decision and apprise the Veteran of his or her procedural and appellate rights, in the event he or she disagrees with the decision and elects to appeal. Under certain circumstances, a statutory filing period may be equitably tolled due to conduct of VA. See Bailey v. West, 160 F.3d 1360, 1365 (Fed. Cir. 1998). Equitable tolling, as an example, is available where the claimant has actively pursued his judicial remedies but has filed a defective pleading during the statutory period, or where a claimant has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass. Jaquay v. Principi, 304 F.3d 1276, 1282-83 ( Fed. Cir. 2002). The Federal Circuit Court specifically held in Bailey that equitable tolling in the paternalistic Veterans' benefits context does not require misconduct, such as trickery; however, Bailey does require the Appellant to have been "misled by the conduct of his adversary into allowing the filing deadline to pass." Bailey, 160 F.3d at 1365; see also (William) Smith v. West, 13 Vet. App. 525 (2000). There must be a cause and effect, i.e., the complainant relied to his/her detriment on something that VA did or should have done, but did not do. See Cintron v. West, 13 Vet. App. 251, 257 (1999), citing Bailey, 160 F.3d at 1364. But in Sears v. Principi, 16 Vet. App. 244, 248 (2002), the Court held that "[t]he statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim." In order for the Veteran to be awarded an effective date based on his earlier claim, he has to show CUE in the prior denial of that claim. Flash v. Brown, 8 Vet. App. 332, 340 (1995). Moreover, there is no basis for a free-standing earlier effective date claim from matters addressed in a final and binding rating decision. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). When such a freestanding claim for an earlier effective date is raised, the Court has held that such an appeal should be dismissed. But the dismissal should be without prejudice to refiling. See Simmons v. Principi, 17 Vet. App. 104 (2003); Canady v. Nicholson, 20 Vet. App. 393 (2006). The proper effective date for a claim reopened on the basis of new and material evidence, other than service treatment records (STRs), received after a final disallowance is the date of receipt of the claim to reopen or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(i); 38 C.F.R. §§ 3.400(q)(2), 3.400(r). But when evidence, other than STRs, is received in the appeal period following a subsequent disallowance, resulting in a later grant of service connection, the effective date will be as though the former decision had not been rendered. 38 C.F.R. § 3.400(q)(1). In this context, it should be noted that the provisions of 38 U.S.C.A. § 5110 refer to the date an "application" is received. And "date of receipt" means the date on which a claim, information, or evidence was received by VA. 38 C.F.R. § 3.1(r). While the term "application" is not defined in the statute, the regulations use the terms "claim" and "application" interchangeably, and they are 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." 38 C.F.R. § 3.1(p). See also Rodriguez v. West, 189 F.3d. 1352 (Fed. Cir. 1999), cert. denied, 529 U.S. 1004 (2000). The benefit sought must be identified, see Stewart v. Brown, 10 Vet. App. 15, 18 (1997), but need not be specific, see Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). That said, while VA must interpret a claimant's submissions broadly, VA is not required to conjure up issues not raised by the claimant. VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. Brannon v. West, 12 Vet. App. 32, 35 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). Any communication or action indicating intent to apply for VA benefits from a claimant or representative may be considered an informal claim. 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 claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a). In certain instances, the date of outpatient or hospital treatment or date of admission to VA or uniformed services hospital will be accepted as the date of receipt of an informal claim. 38 C.F.R. § 3.157. Here, the Veteran is not alleging, and the evidence does not otherwise suggest, that he filed a claim for service connection for his bilateral foot disability within one year of his discharge from service in April 1952, meaning by April 1953. So the earliest possible effective date he may receive, in the most favorable scenario, is when he filed his initial claim, which was in January 1970. The RO adjudicated that initial January 1970 claim on its merits, but denied it in a July 1970 rating decision. He was properly notified of that decision by way of a letter dated July 30, 1970, and mailed to his then-current address of record. The evidence does not reflect, and he does not contend, that he was not notified of that July 1970 decision. And there is a presumption of administrative regularity under which it is presumed that government officials "have properly discharged their official duties." United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926). VA need only mail notice or other correspondence to the Veteran's last address of record for this presumption to attach. Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994). This presumption of regularity in the administrative process may be rebutted only by "clear evidence to the contrary." Schoolman v. West, 12 Vet. App. 307, 310 (1999). And this requires showing, not only that the Veteran did not receive the notice or correspondence in question, but also that there was another viable address where he could have been reached. Absent this, VA is entitled to rely on his address of record - particularly in this circumstance when, as mentioned, there is no dispute as to receipt of notice of that initial decision or concerning his then current address. See Cross v. Brown, 9 Vet. App. 18, 19 (1996). He clearly and admittedly did not appeal that July 1970 denial of his claim, which he was appropriately notified of, therefore that decision is final and binding on him based on the evidence then of record. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. Because his claim had been denied, the notification also informed him of his right to appeal to the Board for the opportunity to demonstrate that his claim for service connection should have been sustained. He did not avail himself of this opportunity. Accordingly, in the absence of CUE in that July 1970 decision, an effective date earlier than the date of his petition to reopen this claim may not be assigned. 38 C.F.R. § 3.105(a). Neither he nor his representative has specifically asserted CUE in that initial July 1970 rating decision. CUE must be pled with specificity. See Andre v. West, 14 Vet. App. 7, 10 (2000) (per curium), aff'd sub nom., Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002). Nevertheless, the Board will construe their statements and hearing testimony alleging what amounts to their belief of error in that decision as sufficient to meet this threshold pleading requirement for consideration of whether there was CUE in that earlier decision. 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). Clear and unmistakable errors "are errors that are 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 v. Principi, 3 Vet. App. 310, 313-14 (1992). "To prove the existence of [CUE as set forth in [38 C.F.R.] § 3.105(a), the claimant must show that an outcome-determinative error occurred, that is, an error that would manifestly change the outcome of a prior decision." Yates v. West, 213 F.3d 1372, 1374 (Fed. Cir. 2000); see also Bustos v. West, 179 F.3d 1378 (Fed. Cir. 1999). The Court has devised a three-prong test for determining whether there was CUE in a prior determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than 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. Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). In Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993), the Court clarified the test set forth in Russell. In Fugo, the Court stated, "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." There is a presumption of validity to otherwise final decisions, and that where such decisions are collaterally attacked, and a CUE claim is undoubtedly a collateral attack, the presumption is even stronger. Id. See also Grover v. West, 12 Vet. App. 109, 111-112 (1999); Daniels v. Gober, 10 Vet. App. 474, 478 (1997); Caffrey v. Brown, 6 Vet. App. 377, 383-384 (1994); Damrel v. Brown, 6 Vet. App. 242, 245 (1994). See also Bustos v. West, 179 F.3d 1378 (Fed. Cir. 1999) (expressly adopting the "manifestly changed the outcome" language in Russell). The Veteran and his representative allege the RO did not properly assist him with his initial 1970 claim by obtaining all of the STRs, including especially clinical records from hospitalizations during his service. But in this regard, it is worth reiterating that a mere failure to fulfill the duty to assist does not constitute CUE. See Crippen v. Brown, 9 Vet. App. 412, 424 (1996); Caffrey v. Brown, 6 Vet. App. 377 (1994). See also Dobbin v. Principi, 15 Vet. App. 323, 326 (2001); Baldwin v. West, 13 Vet. App. 1, 5 (1999); Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993); Damrel v. Brown, 6 Vet. App. 242 (1994); and Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). In applying the test set forth in Russell, there is no indication the RO did not have the correct facts available when initially adjudicating the claim, nor that the RO applied the law incorrectly. Further, when adjudicating that initial claim, some of the Veteran's STRs were indeed on file and considered. The report of his military separation examination, as an example, indicated clinical evaluation of his feet and lower extremities was "normal." So even accepting the Veteran had been hospitalized during his service for treatment of cold weather injuries to his feet, it cannot also be said that even the clinical records of his hospitalization necessarily would have manifestly changed the outcome of that initial claim in that reasonable minds still could come to differing conclusions, such as regarding whether he had chronic or permanent disability as a result or consequence. See Report of Medical Examination dated April 4, 1952; see also Russell v. Principi, 3 Vet. App. 310 (1992); Fugo v. Brown, 6 Vet. App. 40 (1993). The Veteran's representative argued during the July 2012 hearing before the Board that, although the Veteran admittedly did not appeal the earlier July 1970 RO decision initially considering and denying his claim, failure to obtain all or additional STRs before rendering that earlier decision, in particular the clinical records concerning a two-week hospitalization during service that would have documented relevant injury(treatment of a fungal infection thought to have been the result of frostbite), was a failure in the proper processing of that initial claim. According to 38 C.F.R. § 3.156(c), if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section [which pertains to the otherwise need to have new and material evidence to reopen the claim]. Section 3.156(c) goes on to explain that such records include, but are not limited to, service records that are related to a claimed in-service event, injury or disease,... and additional service records forwarded by the Department of Defense or service department to VA any time after VA's original request for service records. See also Vigil v. Peake, 22 Vet. App. 63 (2008) (Pursuant to 38 C.F.R. § 3.156(c) (as in effect in 2005), VA is required to consider the assignment of an effective date earlier than the date of a claim to reopen when records are obtained from the U. S. Armed Services Center for Research of Unit Records (USASCRUR), now known as the Joint Services Records Research Center (JSRRC), after an initial denial of a claim for service connection but later considered by VA and used to support the subsequent award of service connection.). Here, though, at most the Board could do is speculate what those hospitalization records would have shown or documented. When initially deciding the claim in July 1970, the RO determined there was no indication of a fungal infection or consequent frostbite injury or, for that matter, any disability of the feet in the records concerning the Veteran's service. Obviously then, at least some of his STRs were considered in making that initial determination. The RO acknowledged the Veteran's lay statements of having sustained a fungal infection during his service, which he considered to have been the result of slight frostbite. The RO also acknowledged his complaints of burning and tingling sensations in his feet since that frostbite injury in service, in other words, his claim that he had experienced continuity of symtomatology since that injury in service. 38 C.F.R. § 3.303(b). The RO's more recent September 2009 decision initially denied his petition to reopen this claim because there continued to be no evidence of relevant disability in service, especially given the destruction of any remaining STRs in the interim, in the 1973 fire at the NPRC. What ultimately, instead, resulted in the eventual reopening and granting of the claim in the May 2010 decision was a VA compensation examiner's acceptance of relevant injury (frostbite) in service, while stationed in Korea, and the determination that the Veteran's current disability is in all likelihood a consequence. Hence, this is not a situation where VA received additional STRs that were not considered when initially deciding the claim in July 1970. There resultantly is not reason to vitiate the finality of that decision. The Veteran and his representative also allege the RO did not fully address his 1970 claim, citing to Richardson v. Nicholson, 20 Vet. App. 64 (2006). See Statement dated May 21, 2012. They argue the Board must determine whether a claim was reasonably raised in 1970, followed by whether it was adjudicated. The Veteran's 1970 claim was adjudicated; he was provided notice of the outcome; he did not appeal that earlier decision; thus, it became final and binding after one year. Further, the Board does not see any other communication from him during the many years since, prior to September 3, 2008, which reasonably may be considered a petition to reopen this claim. See Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992) (the Board must look at all communications that can be interpreted as a claim, formal or informal, for VA benefits). Indeed, even he acknowledges not having filed any subsequent claim until September 2008. Consequently, the earliest possible effective date he may receive is September 3, 2008, when he filed the successful petition to reopen this claim. The Court has held that the rule of finality regarding an original claim implies that the date of that claim is not to be a factor in determining an effective date if the claim is later reopened. The Court has held that the term "new claim," as it appears in 38 C.F.R. § 3.400(q)(1)(ii), means a claim to reopen a previously and finally denied claim. See Sears v. Principi, 16 Vet. App. 244, (2002); see also Livesay, 15 Vet. App. 165, 172 (2001) (holding that the plain meaning of § 5110 to be that "the phrase 'application therefore' means the application which resulted in the award of disability compensation that it to be assigned an effective dated under section 5110."); Cook v. Principi, 258 F.3d 1311, 1314 (Fed. Cir. 2001) (affirming assignment of an effective date for a service-connection award based upon the reopened claim as the date on which the Veteran "first sought to reopen his claim"); Leonard v. Nicholson, 405 F.3d 1333, 1336-37 (Fed. Cir., 2005) (indicating that "no matter how [the Veteran] tries to define 'effective date,' the simple fact is that, absent a showing of CUE, he cannot receive disability payments for a time frame earlier than the application date of his claim to reopen, even with new evidence supporting an earlier disability date"). Thus, because the Veteran did not appeal the July 1970 decision denying his claim and did not file a petition to reopen this claim until September 3, 2008, this is the earliest possible effective date he may receive for the eventual grant of his claim. See Ingram v. Nicholson, 21 Vet. App. 232, 249, 255 (2007) and McGrath v. Gober, 14 Vet. App. 28, 35 (2000) (indicating a claim that has not been finally adjudicated remains pending for purposes of determining the effective date for that disability, but conversely, that a claim which has become final and binding in the absence of an appeal does not remain pending and subject to an earlier effective date). ORDER The claim for an effective date earlier than September 3, 2008, for the grant of service connection for the bilateral foot disability as a residual of cold weather injury, including on the basis of CUE in the prior July 1970 decision, is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs