Citation Nr: 1314628 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 10-44 831 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi THE ISSUES 1. Entitlement to a disability rating greater than 20 percent for chronic osteomyelitis of the left humerus. 2. Entitlement to an initial disability rating greater than 10 percent for arthritis of the left glenohumeral joint. 3. Entitlement to an effective date earlier than January 27, 2009, for the award of service connection for a scar of the left arm. 4. Entitlement to an effective date earlier than January 27, 2009, for the award of service connection for arthritis of the left glenohumeral joint. 5. Entitlement to an effective date earlier than January 27, 2009, for the award of a 20 percent disability rating for chronic osteomyelitis of the left humerus. REPRESENTATION Veteran represented by: Mississippi Veterans Affairs Commission ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The Veteran served on active duty from September 1961 to September 1963. This matter comes before the Board of Veterans' Appeals (Board) from April 2009, June 2009, and July 2009 RO decisions. Review of the Veteran's contentions indicates to the Board that his earlier effective date claims actually rest upon a theory of clear and unmistakable error in the November 1963 RO decision which granted service connection for chronic osteomyelitis in the left humerus and assigned a 0 percent disability rating. He appears to contend that the RO erred in failing to properly apply the regulatory rating criteria to support a compensable disability rating, and in failing to grant service connection for the left arm scars which were shown in the evidence at that time (1963), 50 years ago. In this regard, the Veteran is informed that a successful claim of "clear and unmistakable" error must be pled with specificity, and he is therefore advised to work with his representative to refine his claim to be more specific. He is also cautioned that claims based upon clear and unmistakable error involve error in the facts as they were known at the time, and the law as it stood at the time. See 38 C.F.R. § 3.105(a). The Board does not have jurisdiction over this claim at this time, therefore, the claim of clear and unmistakable error in the November 1963 RO decision is referred to the RO for adjudication. The issue of entitlement to an effective date earlier than January 27, 2009, for the award of a 20 percent disability rating for chronic osteomyelitis of the left humerus 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. In correspondence of October 2012, the Veteran withdrew his appeals for entitlement to a disability rating greater than 20 percent for chronic osteomyelitis of the left humerus and entitlement to an initial disability rating greater than 10 percent for arthritis of the left glenohumeral joint. 2. The Veteran filed a claim for general compensation which was received by VA on January 27, 2009. 3. The Veteran's left arm scarring and left glenohumeral arthritis were initially identified by a VA examiner in February 2009. CONCLUSIONS OF LAW 1. The criteria for withdrawal by the Veteran of the appeals for entitlement to a disability rating greater than 20 percent for chronic osteomyelitis of the left humerus and entitlement to an initial disability rating greater than 10 percent for arthritis of the left glenohumeral joint have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 2. The criteria for the award of an effective date prior to January 27, 2009, for the awards of service connection for a scar of the left arm and for arthritis of the left glenohumeral joint have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. § 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased rating claims Careful review of the Veteran's contentions throughout the appeal reflects that his arguments pertain to the effective dates of his compensation, rather than the level of compensation assigned. However, until October 2012, his contentions were general enough that the RO continued to include the issues of entitlement to increased ratings for osteomyelitis of the left humerus and arthritis of the left glenohumeral joint in the Supplemental Statements of the Case reflecting the issues on appeal. In the Veteran's October 2012 correspondence, however, he indicated that, "I did not disagree with the assessment or percent of my injury and disability. I only want to state that. . . I should now receive some [retroactive] compensation." The Veteran's statement that he did not disagree with the assessment or percent of his injury and disability is reasonably interpreted as an indication that he no longer wishes to pursue his appeal as to increased disability ratings for these two disabilities. The Board deems that this statement is analogous to a withdrawal of the appeal as to these two issues. Indeed, it is not at all clear that he ever intended to file an appeal for these issues-none of his written arguments could be interpreted as evidencing a belief that the two disabilities are under-rated. Rather, his written arguments are exclusively focused upon the many years during which he received no compensation whatsoever for his service-connected disabilities, and his belief that his disabilities should have been recognized by VA over the years. Therefore, by interpreting his statement as a withdrawal of the appeal, the VA is able to focus its resources upon the Veteran's actual arguments and to address his expressed basis for being aggrieved with VA. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran has withdrawn this appeal in correspondence of October 2012. Thus, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review these appeals and they are dismissed. Earlier effective date claims Once the evidence has been assembled, it is the Board's responsibility to evaluate the record. 38 U.S.C.A. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board must consider all the evidence of record and discuss in its decision all "potentially applicable" provisions of law and regulation. See 38 U.S.C. § 7104(a); Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). The Board is also required to provide a statement of reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for its decision, as well as to facilitate further appellate review. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet. App. 517, 527 (1995); Gilbert, 56 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). In general, the effective date of an award based on an original claim for benefits is based on the filing of a claim for such benefits, or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110; 38 C.F.R. §§ 3.151, 3.400. See Wells v. Derwinski, 3 Vet. App. 307 (1992). Benefits are generally awarded based on the date of receipt of the claim. 38 C.F.R. §§ 3.1(r), 3.400. The Board notes the case of Rudd v. Nicholson, 20 Vet. App. 296 (2006), which held that if a claimant wishes to obtain an effective date earlier than that assigned in a RO decision, the claimant must file a timely appeal as to that decision. Otherwise, the decision becomes final and the only basis for challenging the effective date is a motion to revise the decision based on clear and unmistakable error (CUE). The Rudd Court also held that there can be no freestanding claim for an earlier effective date and that it was error to entertain such a claim. Rather, the proper course of action would have been to dismiss the appeal. In this case, the Veteran has filed a timely appeal as to the effective dates assigned by the RO in decisions dated in April 2009 and June 2009. Service connection for chronic osteomyelitis of the left humerus was granted in a November 1963 RO decision, effective as of the date of the Veteran's discharge from service. 38 C.F.R. § 3.400((b)(2). In January 2009, the Veteran filed a claim for compensation, which resulted in grants of service connection for left arm scarring related to the original in-service infection of the left arm, as well as service connection for arthritis of the left glenohumeral joint. In the January 2009 claim, he did not specifically request these two benefits; rather a VA examiner identified the scar residuals and rendered the opinion that the Veteran's arthritis was secondary to the osteomyelitis. The RO then properly granted service connection for these two disabilities in decisions dated in April 2009 and June 2009. Effective dates of January 27, 2009, were assigned reflecting the date the Veteran's claim for compensation was received. Careful review of the Veteran's claims file reveals no correspondence or other communication from the Veteran prior to January 2009 in which he identifies scar disabilities or arthritis as existing problems, let alone claiming them as related to his experiences in service. The report of the February 2009 VA examination is the first indication of the existence of these problems and of their relationship to service. An argument could be made based upon common sense that the Veteran has had scarring on his left arm associated with the in-service infection and surgery since 1963; however, he did not file a claim for the scar residuals, and the medical evidence does not specifically indicate a linkage until the February 2009 VA examination report. A claim of some sort must be filed for service connection to be granted. In this case, the effective date of the award of service connection for left arm scarring was based on the filing of a claim for such benefit, because this is the later date between the date of the claim or the date entitlement arose. 38 U.S.C.A. § 5110; 38 C.F.R. §§ 3.151, 3.400. Wells. With regard to the award of secondary service connection for arthritis of the left glenohumeral joint, the same analysis applies. No claim was filed prior to January 2009. While we cannot know when entitlement arose, i.e., exactly when the arthritis developed, we do know that the arthritis developed prior to January 2009. Thus, the later of the two dates is January 2009. There is no basis under law for the award of an effective date earlier than January 2009. In this case, the Veteran is seeking an earlier effective date much prior to that assigned based upon the January 2009 claim which was ultimately successful. As explained, above, there is no basis for the assignment of an earlier date under the effective date laws under which his claim has been reviewed thus far. Rather, as set forth above, the Board has determined that the Veteran is in fact seeking to have the 1963 RO decision amended in some way. He appears to be contending that the RO erred by not awarding a compensable disability rating for his osteomyelitis at that time, and also erred by not granting service connection for the apparent scars on his left arm. Previous determinations which are final and binding, including decisions of service connection and degree of disability 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). In Thompson v. Derwinski, 1 Vet. App. 251 (1991), the Court held that a difference of opinion as to the facts or a disagreement with the original rating and its interpretation of the facts is not the type of administrative reversible error contemplated under 38 C.F.R. § 3.105(a). The Court has stated that "[c]lear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. It is not mere misinterpretation of facts." Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). A claimant must assert more than a disagreement as to how the facts were weighed or evaluated. Russell v. Principi, 3 Vet. App. 310 (1992). "To prove the existence of [clear and unmistakable error] as set forth in § 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." Bustos v. West, 179 F.3d 1378, 1380 (1999). A breach of the duty to assist cannot form the basis of a CUE claim. See Caffrey v. Brown, 6 Vet. App. 377 (1994) (VA's breach of duty to assist caused incomplete record but not incorrect record). Duties to notify and assist When an application for benefits is received, VA has certain notice and assistance requirements under the law. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). First, proper notice must be provided to a claimant before the initial VA decision on a claim for benefits and must: (1) inform the claimant about the information and evidence not of record necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The VA is also required to inform the Veteran of how the VA assigns disability ratings and effective dates. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). This information was provided in October 2010. Service records, VA medical records, and VA examination reports have been obtained and reviewed in support of the Veteran's claim. All relevant records and contentions have been carefully reviewed, including all records contained in the Veteran's physical paper file and in his virtual VA electronic file. The Board therefore concludes that the VA's duties to notify and assist have been met with regard to the matters decided herein. ORDER The claims for entitlement to a disability rating greater than 20 percent for chronic osteomyelitis of the left humerus and entitlement to an initial disability rating greater than 10 percent for arthritis of the left glenohumeral joint are dismissed. An effective date earlier than January 27, 2009, for the award of service connection for a scar of the left arm is denied. An effective date earlier than January 27, 2009, for the award of service connection for arthritis of the left glenohumeral joint is denied. REMAND Historically, the Veteran sustained trauma to his left upper arm during service, which resulted in an infection of his humerus bone. It was treated with surgical biopsy and warm soaks. After the drainage had ceased, the surgical cut was allowed to heal closed. He was discharged from the hospital in May 1963 with a diagnosis of chronic osteomyelitis. Prior to his discharge, however, he was given a physical examination which revealed old surgical scars on the left arm, which were nonadherent and nontender. There was no evidence of "activity" during the August 1963 examination; however X-rays were interpreted as showing a chronic process, but no evidence of any acute or subacute activity with regard to bone destruction or reactive bone. The Veteran filed a claim for VA compensation for an infection in his upper left arm in October 1963. Service connection was granted and a 0 percent, or noncompensable, disability rating was assigned in a November 1963 RO decision. The Veteran did not explicitly request consideration of the scars on his arm and the RO did not address the scars present on the arm. In September 1964, less than one year after the RO decision granting service connection, the Veteran wrote to request an increase in his disability rating. He indicated that he was receiving treatment for the arm at the VA Westside Outpatient Clinic as of September 1964. The RO replied with a letter in the same month informing the Veteran that to support his claim for an increase, he needed to submit a physician's statement supporting the claim, or the dates, names, and addresses of VA medical care. If he did none of these things, the RO informed him that no further action could be taken on his claim. There was no acknowledgment of the Veteran's statement that he was receiving treatment for the arm at the VA Westside Outpatient Clinic as of September 1964. No further action on this claim is reflected in the claims file. According to 38 C.F.R. § 3.160(c), a pending claim is defined as "an application, formal or informal, which has not been finally adjudicated"). A claim remains pending until it is finally adjudicated. Adams v. Shinseki, 568 F.3d. 956, 960 (Fed. Cir. 2009). A finally-adjudicated claim is defined as "an application, formal or informal, which has been allowed or disallowed by an agency of original jurisdiction." Such an action becomes "final" by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earliest. 38 C.F.R. § 3.160(d). In this case, it would appear that the Veteran's September 1964 letter represents a pending claim for an increased disability rating. Although the letter was received within one year of the November 1963 decision granting service connection, because he did not express dissatisfaction with the November 1963 decision, it does not appear to fit the criteria to be viewed as a Notice of Disagreement with that decision. 38 C.F.R. § 20.201. His letter may be unequivocally read as a claim for an increased rating, however. Furthermore, because he identified his current VA treatment in the letter, it appears that the RO may have sent him a stock, form letter which asked for information that he had already provided in response. Any VA medical records are deemed to be constructively of record in proceedings before the Board. Bell v. Derwinski, 2 Vet. App. 611 (1992). As the Veteran reported VA medical care in 1964, an attempt to obtain these records should be made (though the Board understands the difficulty in obtaining these records). As there is no longer a Westside VA Outpatient Clinic in Chicago, the records should be requested from the appropriate storage repository (not CAPRI). After the Veteran's VA treatment records from the 1960s have been retrieved (if possible), adjudicators should review them to determine whether the information contained therein supports a higher disability rating for osteomyelitis of the left humerus. Accordingly, the case is REMANDED for the following action: 1. The RO should obtain all records of VA medical treatment afforded to the Veteran at the Westside VA Outpatient Clinic in Chicago, Illinois, from September 1964 onward, from the appropriate storage facility. All efforts to obtain these old records should be documented for the claims file, and if they are ultimately deemed to be unobtainable, the appropriate memorandum for the file should be prepared. 2. After the development requested above has been completed, the RO should provide the Veteran with appropriate notice and perform any further evidentiary development necessary to resolve the claim for a higher disability rating for osteomyelitis of the left humerus which has been pending since September 1964. After all indicated notice and development, the RO should again review the record to determine whether the information contained therein supports a higher disability rating for osteomyelitis of the left humerus. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 3. The Board asks the RO/AMC to review the particulars of this case carefully in light of the unusual factual situation in order to insure that all requirements of the Board decision are fully implemented. The Veteran has the right to submit additional evidence and argument on the matter 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 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. 2012). ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs