Citation Nr: 1312502 Decision Date: 04/16/13 Archive Date: 05/02/13 DOCKET NO. 10-25 544 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a chronic acquired psychiatric disorder to include secondary to service-connected bilateral foot/ankle disability. 2. Entitlement to an effective date earlier than July 2, 2002, for the grant of service connection for flatfoot deformity and talocalcaneal coalition of both feet to include on the basis of clear and unmistakable error (CUE) in a November 25, 1981 rating decision that denied service connection for a bilateral foot condition. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. D. Jackson, Counsel INTRODUCTION The appellant is a veteran who had active service from February 1970 to October 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal rating decisions dated in February 2006, June 2008 and May 2009 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. FINDINGS OF FACT 1. The medical and other evidence in the file is approximately evenly balanced for and against the claim concerning whether the depressive symptoms of the Veteran's bipolar disorder are aggravated by his service-connected bilateral foot/ankle disability. 2. The RO received the Veteran's original claim for entitlement to service connection for a bilateral foot/ankle disability on October 28, 1976. 3. In a November 1981 rating decision, the RO denied the Veteran's claim of service connection for a bilateral foot/ankle disability; in December 1981, he was provided notice of the November 1981 rating decision, but did not appeal this determination. 4. On July 27, 2000, the RO received a petition to reopen his claim for service connection for a bilateral foot/ankle disability, which was denied by the RO in August 2000. The Veteran was notified of this determination in September 2000, but did not appeal that decision. 5. On July 2, 2002, the RO received another petition to reopen his claim for service connection for a bilateral foot/ankle disability. 6. In an October 2002 rating decision, the RO granted service connection for bilateral pes planus and assigned a 30 percent evaluation, effective, July 2, 2002, the date the claim was received by the RO. 7. In November 2002, the RO denied service connection for bilateral tarsal coalition; in February 2006 service connection for talocalcaneal coalition was granted and the Veteran's previously service-connected bilateral foot disability was recharacterized as flatfoot deformity and talocalcaneal coalition of both feet with a 50 percent rating assigned, effective, July 2, 2002. 8. The Veteran's application received by VA on July 2, 2002, has been accepted as a request to reopen the claim for entitlement to service connection for a bilateral foot/ankle disability; an effective date has been established from this date. 9. The record does not establish that the correct facts, as they were known at the time of unappealed rating decision in November 1981 were not before VA or that VA incorrectly applied the statutory or regulatory provisions at the time such that the outcome of the claim would have been manifestly different but for the error. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in his favor, bipolar disorder is secondary to the Veteran's service-connected bilateral foot/ankle disability on the basis of aggravation. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012); Allen v. Brown, 7 Vet. App. 439 (1995). 2. The November 25, 1981 rating decision that denied service connection for a bilateral foot disorder did not contain clear and unmistakable error, and thus, the criteria for an effective date prior to July 2, 2002, for the grant of service connection for a bilateral foot/ankle disability have not been met. 38 U.S.C.A. §§ 5108, 5110, 7104 (West 2002); 38 C.F.R. §§ 3.156, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (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; 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini, the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. In this case, letters satisfying the notice requirements of 38 C.F.R. § 3.159(b)(1) were sent to the Veteran in July 2002 and May 2006. These letters informed him of the evidence required to substantiate his claims and of his and VA's respective responsibilities in obtaining this supporting evidence. The Board notes that the appeal for an earlier effective date for the Veteran's service-connected bilateral lower extremity disabilities arises from the Veteran's disagreement with the effective date assigned after the grant of service connection. The courts have held, and VA's General Counsel has agreed, that where an underlying claim has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or address prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003). However, the RO did send an additional VCAA notice in May 2006 which complied with Dingess by as well discussing the downstream disability rating and effective date elements of the claim. With regard to the duty to assist, the Board notes that relevant medical evidence was obtained and reviewed by the RO in connection with the adjudication of the Veteran's service connection claim. In regard to his claim for a psychiatric disorder, as the Board is granting the claim, this award represents a complete grant of the benefits sought on appeal. Thus, any deficiency in VA's compliance is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary for this issue. The Board notes further that with respect to the Veteran's claim of CUE as a basis to establish an earlier effective date for his bilateral foot/ankle disability, the Court has held that the VCAA does not apply in matters of revision of an RO decision on the basis of clear and unmistakable error (CUE). See Parker v. Principi, 15 Vet. App. 407 (2002). Thus, the Board finds that VA has fully satisfied the duty to assist where obligated. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case where appropriate, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim. Service Connection for a Psychiatric Disorder There are various ways of establishing entitlement to service connection for a claimed condition. Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). The Board usually is required to consider all potential bases of entitlement. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). Here, though, the Veteran is specifically maintaining that his psychiatric disorder is attributable to his already service-connected bilateral foot/ankle disability. He does not assert and the record does not reflect that the Veteran's psychiatric disability is directly due to his military service. His claim for a psychiatric disorder is entirely predicated on the notion that it is secondary to (proximately due to or aggravated by) his service-connected disability. A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a) (2012). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b) (2012); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). A claim for secondary service connection requires medical evidence that connects the asserted secondary disorder to the service-connected disability. Velez v. West, 11 Vet. App. 148, 158 (1998). In order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Supporting medical evidence, not just lay opinion, generally is required to associate a claimed condition with a service-connected disability. See Wallin v. West, 11 Vet. App. at 512; Velez v. West, 11 Vet. App. 148, 158 (1998); and McQueen v. West, 13 Vet. App. 237 (1999). On the June 1969 examination that was conducted prior to entrance into service, the Veteran reported on a questionnaire that he had a prior history of nervous trouble. However, according to the examination report, he was considered psychiatrically normal. There were no references to complaints, findings, or diagnoses of psychiatric problems. He denied any nervous trouble, depression, or excessive worry, on the September 1971 expiration of term of service (ETS) examination. Post-service records show that the Veteran's private podiatrist noted in December 2003 that the Veteran had disabling arthritis of his ankle subtalar joint. He stated that his physical activity during his service years led to pain and a poor quality of life. In a December 2008 response to a query from a state appointed veterans' service officer, a private physician, Dr. S.G. stated that it's at least as likely as not that his service-connected disability caused sufficient exacerbation of his mental condition. In January 2011, the Veteran's private treating licensed social worker (LCSW) reported that the Veteran suffered from bipolar disorder with predominate depressed mood. She stated that it appeared that the Veteran's level of depressive symptoms was significantly exacerbated by long term chronic foot pain. She indicated that it was her belief that the Veteran's depressed mood was worsened by chronic pain and this opinion was supported by many published articles. She attached an abstract of a clinical study on chronic pain associated with depression. This study found that there was a statistical relationship between chronic pain and depression. A VA examination was conducted in May 2012. The psychologist reviewed the claims file and interviewed the Veteran for evaluation. She stated that the overall picture is one of an individual who had made a satisfactory adjustment prior to entering service. It was her opinion that: The veteran is blaming his military Physical Profile Record which states his duty with permanent limitations. He stated this has caused him to lose jobs and he was unemployable because of the military. He is very aggravated because he is fighting the 'government' for his flat foot condition. He is very angry. The veteran is a poor historian and so very focused on being denied for his foot condition he [has] great difficulty concentrate[ing] on anything else. This current therapist wrote a letter, the veteran showed this examiner, attesting to the fact the veteran's flat feet condition [was] causing him depression. Well, that would not be accurate. The bipolar disorder was causing the veteran's depression. "Fighting the government" to get compensation for his flat foot condition (he believes he should be 100% disabled) might affect his depression. His delusional state may increase depressive symptoms. There is no evidence to suggest there is a depressive disorder above and beyond what would be expected from one who had been diagnosed with Bipolar Disorder [and] his flat foot did [n]ot cause the Bipolar disorder. There is no evidence to suggest the veteran suffered from Bipolar disorder or solely depression when in the service either. There is no evidence to suggest [any] relationship between his flat foot condition and his mental health condition (diagnosed as Bipolar disorder). Therefore, his diagnosed Bipolar Disorder with psychotic feature (Bipolar disorder includes his depressive symptoms) is not at least as likely as not due to [or] aggravated by the veteran's foot condition. All of the medical opinions of record, both for and against this claim, are probative as they were all provided by those possessing the necessary medical competence, education, training, qualifications or experience to, according to 38 C.F.R. § 3.159(a)(1), offer medical diagnoses, statements or opinions. See Cox v. Nicholson, 20 Vet. App. 563 (2007). See also Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009) (indicating that, where this is not called into question, VA need not affirmatively establish an examiner's competency). However, the Board also must weigh the credibility of these medical opinions to determine their ultimate probative value in relation to each other and, in so doing, may favor one over another provided there is sufficient explanation of the underlying reasons and bases. See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)); see also Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (it is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons and bases for doing so). The Board must account for the evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). In determining the weight assigned to this evidence, the Board also looks at factors such as the health care provider's knowledge and skill in analyzing the medical data. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); see also Black v. Brown, 10 Vet. App. 279, 284 (1997). With regards to medical treatise evidence, the Court has held that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999); see also Sacks v. West, 11 Vet. App. 314 (1998) and Wallin v. West, 11 Vet. App. 509 (1998). And, here, the findings noted in the medical article submitted in support of this claim are affirmed by the expert medical opinion of the LCSW. However, in this case, the Board finds that all opinions are somewhat flawed, in that neither commented nor provided a complete history of the Veteran's medical history. For instance, the private LCSW does not specifically indicate that she has reviewed the Veteran's medical history including historical clinical records and does not provide a complete explanation for her opinion; however, she does provide a medical article to support her opinion regarding aggravation. Further, the VA examiner mischaracterizes the LCSW opinion as indicating a causation etiology which in fact she indicates that the Veteran's depressive symptoms associated with his bipolar disorder are worsened or aggravated by his service-connected bilateral foot condition. And, while the VA examiner indicates that there is "no evidence" that suggest that that there is a depressive disorder above and beyond what would be expected from one diagnosed with bipolar disorder, she does not address the medical article submitted on the Veteran's behalf, does not accurately report the conclusions of the LCSW, and does not address Dr. S.G.'s opinion. Here, in light of the medical evidence establishing the required relationship or correlation between the depressive symptoms of the Veteran's bipolar disorder and his bilateral foot/ankle disability, the Board finds that 38 C.F.R. § 3.102 warrants application. According to 38 C.F.R. § 3.102, when reasonable doubt arises regarding service origin, the degree of disability, or any other point, this doubt will be resolved in the Appellant's favor. A reasonable doubt is one that exists because of an approximate balance of positive and negative evidence that does not satisfactorily prove or disprove the claim. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Here, although there is no competent and credible evidence linking the Veteran's bipolar disorder to service, the evidence supporting the claim certainly is at least on balance with and as probative as any evidence against the claim concerning whether the depressive symptoms of the Veteran's bipolar disorder are aggravated by his chronic pain due to his service-connected disabilities. Therefore, especially when resolving all reasonable doubt in his favor regarding this appeal, it is at least as likely as not that his service-connected bilateral foot/ankle disability aggravates his bipolar disorder. 38 C.F.R. § 3.102. His claim therefore must be granted. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (indicating that an "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology). Earlier Effective Date The Veteran contends that he is entitled to an effective date prior to July 2, 2002, for the grant of service connection for his bilateral foot/ankle disability. In a statement received in April 2006, the Veteran alleges that he first requested information regarding a claim for service connection for bilateral foot/ankle disability in October 1971. If the Veteran filed a claim for service connection for the condition at issue within one year of his separation from service, then his effective date for the grant of compensation benefits for the condition may be retroactive to the day following his discharge from service. In essence, this obligates VA to compensate him for the disability from the point when the service department's obligation ended, i.e., from the point when he transitioned from military to civilian life. However, if he did not file a claim for this condition within one year after service, the earliest effective date he may receive is when he eventually filed his claim. And if there was a decision denying his claim, which he did not appeal or abandoned, then the earliest effective date that he may receive (if his claim is later granted on the basis of new and material evidence) is the date of receipt of his petition to reopen the claim. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(b)(2)(i), (r), (q)(1)(ii). The Court held in Sears v. Principi, 16 Vet. App. 244, 248 (2002), 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 an earlier claim that became final and binding, he has to collaterally attack the prior decision and show there was clear and unmistakable error (CUE) in the prior denial of the claim. Flash v. Brown, 8 Vet. App. 332, 340 (1995). Else, there is no basis for a free-standing earlier effective date claim from matters addressed in a prior, final and binding, rating decision. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). The Court in Rudd noted that any other result would vitiate the rule of finality. When such a free-standing 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). In Sears the Court explained 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 also Livesay v. Principi, 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"). The term "application" is used interchangeably with "claim" and defined 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); see also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999). But a claim is not considered actually filed until VA receives it. 38 C.F.R. § 3.1(r). Any communication or action indicating intent to apply for one or more benefits under the laws administered by VA from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. 38 C.F.R. § 3.155. An informal claim must identify the benefit sought, however, though need not be specific. See Stewart v. Brown, 10 Vet. App. 15, 18 (1997); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). VA is required to identify and act on informal claims for benefits. 38 U.S.C.A. § 5102; 38 C.F.R. § 3.1(p), 3.155(a). See also Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). 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. Also, according to 38 C.F.R. § 3.157(b), once a claim for compensation has been allowed, receipt of a VA outpatient or hospital examination or admission to a VA or uniformed services hospital will be accepted as an informal claim for increased benefits. The date on the VA outpatient or hospital examination will be accepted as the date of informal claim. 38 C.F.R. § 3.157(b). Reviewing the record at the time of the original claim, the claims file contains a copy of his DD-214 (Armed Forces of the United States Report of Transfer or Discharge). There is no VA date stamp. This document was filed on October 13, 1971 with the County Clerk and Recorder of Franklin County, Illinois. Associated with the DD 214 are personal documents (marriage and birth certificates) from the Veteran. They are date-stamped by the RO as received on December 9, 1974. As pointed out by the Veteran, the claims file contains an application for VA benefits that has several date stamps, with the earliest dated October 28, 1976. The other dates stamps are November 5, 1976 and December 7, 1981 (with File ADJ DIV). Written on the front of this document is "Found in file without any action taken when 7/3/; 10/22/81 read." This was signed by the rating officer and dated October 28, 1981. At this point, the RO initiated development of the claim. Thereafter, in a rating decision dated in November 1981 and issued in December 1981, the RO denied service connection for bilateral foot/ankle disability. As the Veteran did not timely appeal this determination, such rating decision is final. See 38 U.S.C.A. § 7105(c); 38. C.F.R. §§ 3.104, 20.302, 20.1103. Specifically, after being provided notice of the adverse decision and his appellate rights in December 1981, the Veteran did not enter a notice of disagreement. Following the final disallowance in December 1981, no further communication is received from the Veteran until July 27, 2000, when he submitted an application to reopen his claim for service connection for the bilateral foot/ankle disability. Along with this application he again submitted a copy of his DD-214 with the October 13, 1971, date stamp from the County Clerk and Recorder of Franklin County, Illinois. In a rating decision dated in August 2000 and issued in September 2000, the RO denied the petition to reopen the claim for service connection for bilateral foot/ankle disability. Again, as the Veteran did not timely appeal this determination, this rating decision is also final. See 38 U.S.C.A. § 7105(c); 38. C.F.R. §§ 3.104, 20.302, 20.1103. Thereafter, the RO did not receive any communication from the Veteran until he filed his petition to reopen the claim for the bilateral foot/ankle disability on July 2, 2002. In an October 2002 rating decision, the RO granted service connection for bilateral pes planus and assigned a 30 percent evaluation, effective, July 2, 2002, the date the claim was received by the RO. In February 2006, the RO expanded service connection for bilateral pes planus to include talocalcaneal coalition, and assigned an effective date of July 2, 2002, the date the claim was received by the RO. As the Veteran did not appeal either the November 1981 rating decision that initially denied service connection for bilateral foot/ankle disability, or the August 2000 that denied the petition to reopen the claim for service connection, they are final. As such, he is not entitled to an effective date of October 28, 1976, the date of his original claim or July 27, 2000 when he petitioned to reopen the claim. Thereafter, the Veteran's reopened claim was first received by VA on July 2, 2002. Based on the above-stated facts and regulations, the Board finds that the correct date for the grant of service connection for bilateral foot/ankle disability is July 2, 2002, the date the Veteran's application to reopen his claim of entitlement to service connection for bilateral foot/ankle disability was first received by VA following the RO's final August 2000 denial. See 38 C.F.R. § 3.400(q)(1)(ii); (r). CUE The Veteran argues that there was CUE in the initial November 25, 1981 rating action which initially denied service connection for his bilateral foot/ankle disability. In correspondence received on April 12, 2006, the Veteran stated: ...I would like to bring to your attention the fact that I originally made a statement dated 10/8/1971 that I would like to have the VA Regional Offices contact me regarding filing a claim for this condition. On October 26, 1976 I signed a 21-526 which was date-stamped received by your offices on November 5, 1976. The condition was for pes planus with tarsal coalition. Located on the front page of document is a srawled note "Found in file without any action taken when 7131 read on 10/22/1981" This was signed by an individual working in the RO by the last name of "[ ]". There are date stamps "File Adj Div Dec 07, 1981 328-[ ]" and date stamps "File Adj Div 11/5/1976" as well on this same 21-526 form. I contend there has been clear and unmistakable error in my claim. You originally lost the claim for over six years. Then, when you finally found in my favor, you did not date it to the original claim..... In a statement received in December 2008, the Veteran makes additional arguments contending CUE in the November 1981 rating action. He points to specific evidence that he felt was important to his claim, mostly regarding the in-service clinical findings that was of record in 1981. As well, he maintains that he should have been provided VA examination at the time of his initial request for VA benefits in 1981. Pursuant to 38 C.F.R. § 3.104(a), "[a] decision of a duly constituted rating agency...shall be final and binding....based on evidence on file at the time and shall not be subject to revision on the same factual basis." See also 38 U.S.C.A. § 5108. An exception to this rule is when the VA has made a clear and unmistakable error in its decision pursuant to 38 C.F.R. § 3.105. Previous determinations which are final and binding, including decisions of service connection, will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). The essence of a claim of CUE is that it is a collateral attack on an otherwise final rating decision by a VA Regional Office. Smith v. Brown, 35 F. 3d 1516, 1527 (Fed. Cir. 1994). As such, there is a presumption of validity which attaches to that final decision, and when such a decision is collaterally attacked, the presumption becomes even stronger. See Fugo v. Brown, 6 Vet. App. 40, 44 (1993). Therefore, a claimant who seeks to obtain retroactive benefits based on CUE has a much heavier burden than that placed upon a claimant who seeks to establish prospective entitlement to VA benefits. See Akins v. Derwinski, 1 Vet. App. 228, 231 (1991); see also Berger v. Brown, 10 Vet. App. 166, 169 (1997) (recognizing a claimant's "extra-heavy burden" of persuasion before the Court in a claim of CUE). In asserting a claim of CUE, the claimant must show that: (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 Russell v. Principi, 3 Vet. App. 310, 313-314 (1992) (en banc). The Court has further elaborated that CUE is a very specific and rare kind of error of fact or law that compels the conclusion, without doubt, that but for the error, the result would have been manifestly different. Fugo v. Brown, 6 Vet. App. 40, 43 (1993). Final decisions are accorded a presumption of validity, and to simply claim CUE on the basis that a previous adjudication had improperly weighed and evaluated evidence can never rise to the stringent definition of CUE. Luallen v. Brown, 8 Vet. App. 92, 94 (1996); Fugo, 6 Vet. App. at 44 (citing Russell, 3 Vet. App. at 314). Similarly, broad brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, nonspecific claim of error cannot constitute a valid claim of clear and unmistakable error. Id. Additionally, the Court held that VA's breach of its duty to assist cannot form a basis for a claim of clear and unmistakable error. Caffrey v. Brown, 6 Vet. App. 377, 382 (1994). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a breach of a duty to assist cannot constitute CUE and that even a "grave procedural error" does not render a decision of VA non-final. Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002). The Court has also held that an application that had been previously denied could not preserve an effective date for a later grant of benefits based on a new application. See Wright v. Gober, 10 Vet. App. 343, 346-47 (1997); see also Washington v. Gober, 10 Vet. App. 391, 393 (1997) ("The fact that the appellant had previously submitted claim applications, which had been denied, is not relevant to the assignment of an effective date based on a current application."). As for the pertinent laws and regulations governing service connection in effect at the time of the November 1981 rating decision, 38 U.S.C.A. § 310, 331 (although renumbered 38 U.S.C.A. §§ 1110, 1131 on August 6, 1991) and 38 C.F.R. § 3.303, service connection could be granted for disability resulting from disease or injury incurred in or aggravated by service. Service connection could also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, established that the disease was incurred in service. 38 C.F.R. § 3.304(d) (effective before and after July 1, 1981). Based upon the evidence of record, the Board finds that it is not established that the correct facts, as they were known at the time of unappealed rating decision in November 25, 1981, were not before VA or that VA incorrectly applied the statutory or regulatory provisions at the time such that the outcome of the claim would have been manifestly different but for the error. The November 1981 rating determination is shown to have been provided based upon the evidence then of record and the effective date assigned in the October 2002 (pes planus) and February 2006 (tarsal condition) rating decisions is shown to have been based upon the date of receipt of the Veteran's request to reopen his claim. The Veteran contends that the RO committed error when it failed to promptly adjudicate the claim that was received in 1976, by waiting until 1981 to begin development. The Veteran's claim as to error, in essence, asserts a breach of a duty to assist in providing delayed assistance, which is not CUE under VA law. The same is true in regards to his argument that he should have been provided VA examination prior to the 1981 decision. The Court has clearly held that a breach of the duty to assist cannot form a legitimate basis for a claim of CUE. 38 C.F.R. § 20.1403(d); see also Crippen v. Brown, 9 Vet. App. 412, 424 (1996); Caffrey v. Brown, 6 Vet. App. 377, 382 (1994) (VA's breach of duty to assist caused an incomplete record but not an incorrect record). The Board is cognizant of the Veteran's argument that he requested information regarding his claim in 1971, but there is no evidence of such a claim. The service treatment records show that on October 8, 1971, the Veteran signed a Statement of Medical Condition, prior to his release from active service, which indicated that there had been no change in his medical condition. Significantly, however, there is no statement indicative of a desire to file a claim for a bilateral foot/ankle disability. VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed with VA. See Brannon v. West, 12 Vet. App. 32, 35 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). Moreover, as stated above, this argument encompasses a duty to assist, which is not subject to CUE. The Veteran alternatively argues that the service treatment records clearly show that he received medical care for his feet and ankles during service and, in fact, he was put on profile for these reasons. He also points out that the in-service clinical documents indicate that his tarsal condition was shown to have been incurred in the line of duty. Significantly, however, the RO considered this evidence and decided that his bilateral foot disability existed prior to service and was not aggravated by military. The RO reported that pes planus was noted on his June 1969 pre-enlistment examination as well as the fact that he received medical care during service; but, decided that based on the fact that there were no foot complaints noted at the time discharge, there was no evidence of injury or aggravation beyond natural progression. Notwithstanding this, the basis of the Veteran's contentions amount to his opinion of what the RO should have concluded. He basically indicates that the RO should have given more credence to certain pieces of evidence, as opposed to other. Unfortunately, his contentions essentially amount to no more than disagreement as to how the RO weighed the evidence, rather than clear evidence that the RO did not properly consider the applicable regulations in adjudicating the claim. It is not grounds for finding CUE in that decision. A disagreement as to how the facts were weighed or evaluated in 1981 cannot form the basis of a claim of clear and unmistakable error. 38 C.F.R. § 20.1403(d); See Luallen v. Brown, 8 Vet. App. 92 (1995). The Veteran has identified no other specific error as to the assigned effective date in the October 2002 (pes planus) and February 2006 (tarsal condition) rating decisions other than on the basis of CUE. There is no indication based upon the available record that the November 1981 decision should be considered "non-final" as a result of a due process violation. The Board further finds that the Veteran's application received by VA on July 2, 2002, was appropriately accepted as a request to reopen the claim for entitlement to service connection for the bilateral foot/ankle disability and that an effective date for the award of service connection for bilateral foot/ankle disability has been established from this date. There is no evidence of an earlier unadjudicated request to reopen. As such, the Veteran is not entitled to an earlier effective date and his claim must be denied. ORDER Service connection for bipolar disorder as secondary to the service-connected bilateral foot/ankle disability is granted. An effective date prior to July 2, 2002, for the grant of service connection for a bilateral foot/ankle disability is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs