Citation Nr: 1324483 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 09-25 171 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to an effective date earlier than November 29, 2006, for the assignment of a 10 percent disability rating for residuals of a left foot fracture (previously characterized as healed fracture, non-displaced, 3rd and 4th metatarsus, dislocation metatarsus 2nd, 3rd, 4th and 5th) , to include as due to clear and unmistakable error (CUE). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant and wife ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran had active duty from September 1980 to April 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Veteran presented testimony at a videoconference hearing in May 2011 before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the Veteran's claims folder. In September 2011, the Board remanded the claim for additional development. The case has been returned to the Board for further appellate review. Additional evidence was submitted by the Veteran following certification of the appeal to the Board. The Veteran's representative provided a waiver of RO consideration of the evidence in an April 2013 brief, however, the Board notes that the evidence is duplicative of records already in the claims file. See 38 C.F.R. § 20.1304(c) (2012). The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. FINDINGS OF FACT 1. The October 1983 and December 1997 rating decisions were consistent with the law and supported by evidence then of record. 2. There is no undebatable error of fact or law in the October 1983 and December 1997 denials that would change the outcome regarding the claim for an increased rating for a left foot disability. 3. In an April 2007 rating decision, the RO increased the rating for residuals of a left foot fracture to 10 percent disabling, effective November 29, 2006, the date of the Veteran's increased rating claim. 4. Prior to November 29, 2006, it was not factually ascertainable that the Veteran's residuals of a left foot fracture had worsened in severity. CONCLUSIONS OF LAW 1. The RO's October 1983 decision that granted service connection for residuals of a left foot fracture and assigned an initial noncompensable rating was not clearly and unmistakably erroneous. 38 U.S.C.A. §§ 5109A, 7105 (West 2002); 38 C.F.R. §§ 3.105(a), 20.1403 (2012). 2. The RO's December 1997 decision which denied the Veteran's claim for a compensable rating for residuals of a left foot fracture was not clearly and unmistakably erroneous. 38 U.S.C.A. §§ 5109A, 7105 (West 2002); 38 C.F.R. §§ 3.105(a), 20.1403 (2012). 3. The criteria are not met for an effective date earlier than November 29, 2006, for the grant of the 10 percent rating for residuals of a left foot fracture. 38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. §§ 3.400(o), 4.71a including Diagnostic Code 5284 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). With respect to the Veteran's claim for an earlier effective date, the Board notes that such notice is unnecessary in this case because the Veteran is challenging the effective date for grant of a 10 percent disability rating for residuals of a left foot fracture in an April 2007 rating decision. If, in response to notice of its decision on a claim for which VA has already given the § 5103 notice, VA receives a notice of disagreement that raises a new issue, § 7105(d) requires VA to take proper action and issue a statement of the case if the disagreement is not resolved, but § 5103 does not require VA to provide notice of the information and evidence necessary to substantiate the newly raised issue. See VAOPGCPREC 8-03 (December 22, 2003). Thus, the Board finds that under the holding in VAOPGCPREC 8-03, further notice from VA to the Veteran is not required with regard to his claim for an earlier effective date prior to November 29, 2006, for the assignment of a 10 percent disability rating for residuals of a left foot fracture. Additionally, the VCAA does not apply to the CUE component of the Veteran's claim, irrespective of whether the Board or RO issued the decision being collaterally attacked. See Livesay v. Principi, 15 Vet. App. 165 (2001)(en banc) (holding VCAA does not apply to Board CUE motions) and Baldwin v. Principi, 15 Vet. App. 302 (2001) (holding VCAA does not apply to RO CUE claims, either). The duty to assist the Veteran has also been satisfied in this case. The RO has obtained the Veteran's service treatment records. There are no reports of outstanding post-service treatment records. This case was remanded by the Board in September 2011 for further development. In accordance with the Board's September 2011 remand directives, the RO has obtained and associated with the claims file all outstanding VA treatment records. The Board is satisfied as to substantial compliance with its September 2011 remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Finally, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. 3.103(c)(2) (2012) requires that any Veterans Law Judge who chairs a hearing fulfill two duties to comply with the VCAA. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant, 23 Vet. App. at 488. Here, during the May 2011 videoconference hearing, the undersigned Veterans Law Judge adequately explained the claim on appeal and suggested evidence that may support the claim that the Veteran might submit that may have been overlooked. The Board accordingly concludes that the notice requirements under Bryant were effectively satisfied. To the extent any such notice may have been inadequate, this was effectively cured both by actual knowledge as evidenced by statements and questions of the Veteran and his representative at the hearing, with regard to this claim. The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim and did in fact participate. Washington v. Nicolson, 21 Vet. App. 191 (2007). Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Law and Analysis Under VA laws and regulations, a specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under laws administered by the VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). In general, the effective date of an award based on an original claim or a claim reopened after final adjudication of compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. Generally, the effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. However, if the claim is received within one year after separation from service, the effective date of an award of disability compensation shall be the day following separation from active service. 38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). The effective date of an award of disability compensation based on a claim to reopen after a final disallowance shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(q)(ii), (r). For an increase in disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if a claim is received within one year from such date otherwise, date of receipt of claim. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(o)(2); see also Hazan v. Gober, 10 Vet. App. 511 (1997); Servello v. Derwinski, 3 Vet. App. 196 (1992). Additionally, under 38 C.F.R. § 3.155(a), the Veteran or a representative of the Veteran may file an informal claim by communicating an intent to apply for one or more VA benefits. 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). Also, under 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 hospital will be accepted as an informal claim for increased benefits. See Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). The date on the VA outpatient or hospital examination will be accepted as the date of claim. 38 C.F.R. § 3.157(b). The Veteran also asserts CUE in his earlier effective date claim. Previous determinations which are final and binding will be accepted as correct in the absence of clear and unmistakable error (CUE). Where evidence establishes such error, the prior decision will be reversed or amended. 38 U.S.C.A. § 5109A; 38 C.F.R. § 3.105(a) (2012). The United States Court of Appeals for Veterans Claims (Court) has defined CUE as "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 error is defined as 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. Fugo v. Brown, 6 Vet. App. 40 (1993). To determine whether clear and unmistakable error was present in a prior determination, 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; 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. Damrel v. Brown, 6 Vet. App. 242 (1994); Russell v. Principi, 3 Vet. App. 310 (1992). Any claim of CUE must be pled with specificity. See Andre v. West, 14 Vet. App. 7, 10 (2000), aff'd sub nom., Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002). The Veteran essentially contends that he should have been granted a 10 percent rating for his left foot disability back to 1983 when he first filed his claim for service connection. He reports that he has experienced ongoing pain and discomfort in his left foot since he was first granted service connection by a rating decision in October 1983. He also notes that he has consistently tried to go back to the VA for pain his left foot and but was denied benefits. Here, in an October 1983 rating action, the Veteran was awarded service connection for a healed fracture of the left foot with a noncompensable evaluation. A December 1997 rating decision confirmed and continued the noncompensable evaluation for the left foot disability. In order to find that the October 1983 and December 1997 decisions were clearly and unmistakably erroneous, it must be concluded that the evidence of record at the time the decisions were made were such that the only possible conclusion is that an award of increased ratings were due the Veteran. CUE requires that error, otherwise prejudicial, must appear undebatably. Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). The crux of the Veteran's argument in regards to the left foot disability is that he is currently receiving a 10 percent rating for this disability. However, the Board points out that when considering CUE, the determination is to be made based on the evidence that existed at the time of the prior decision in question. Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). The level of severity of the left foot disability many years later may not be applied to the RO's determination in October 1983 or December 1997. Additionally, the Veteran's present characterization of the symptomatology that existed at the time of the previous decisions is not relevant to the CUE determination. Given these facts, the Board concludes that CUE was not committed in the October 1983 rating decision that assigned a noncompensable rating for the service-connected residuals of a left foot fracture or the December 1997 rating decision which confirmed a noncompensable rating. Thus, the CUE claim is denied. The Board will now address the Veteran's contention that the award of 10 percent for residuals of left foot fracture should be made effective prior to November 29, 2006. The Board will begin by outlining the history of this claim. As previously mentioned, in an October 1983 rating decision, the RO granted service connection for residuals of a left foot fracture and assigned an initial noncompensable rating. The Veteran did not appeal, and thus the rating decision became final and binding on him based on the evidence of record. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.302, 20.1103. In June 1997, the Veteran submitted an increased (compensable) rating claim for his service-connected residuals of a left foot fracture. A December 1997 rating decision confirmed and continued the noncompensable rating. The Veteran did not appeal, and thus the rating decision became final and binding on him based on the evidence of record. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.302, 20.1103. On November 29, 2006, VA received the Veteran's increased rating claim for his service-connected residuals of a left foot fracture. In an April 2007 rating decision, the RO increased the rating for the residuals of a left foot fracture to 10 percent disabling, effective November 29, 2006, the date of the Veteran's increased rating claim. Based on the procedural history detailed above, it is determined that the appropriate increased rating claim date is November 29, 2006. Indeed, this was the date assigned by the RO in the April 2007 rating decision for the 10 percent rating. Thus, the remaining question before the Board is whether it is factually ascertainable that an increase in the disability occurred within a year prior to the date of the receipt of the increased rating claim, that is, within a year prior to November 29, 2006. If there is no ascertainable increase in disability within a year prior to the date of the receipt of the claim, the effective date will be the later of the date of increase in disability or the date of receipt of the claim. 38 U.S.C.A. § 5110(b)(2). Here, there is no evidence which establishes that the Veteran was entitled to a 10 percent evaluation in the year prior to November 29, 2006. Indeed, there is no pertinent medical evidence dated between November 2005 and November 2006 in the claims file. As there was no ascertainable increase in the disability within a year prior to the date of the receipt of the informal claim, the next question before the Board is when the Veteran's increase in the disability became factually ascertainable. The increase in the disability became factually ascertainable as of February 6, 2007, the date of a VA examination. There is no evidence in the claims file suggesting that the Veteran's increase became factually ascertainable prior to this date. As such, the Board concludes that an increase in the Veteran's residuals of a left foot fracture was not factually ascertainable prior to February 6, 2007. Therefore, the provisions of 38 C.F.R. § 3.400 (0)(2) cannot serve as a basis for an earlier effective date here. Furthermore, the claims file does not contain any testimonial documents submitted between the unappealed December 1997 rating decision and the November 29, 2006, increased rating claim. The first communication received after the December 1997 rating decision is the Veteran's November 29, 2006, increased rating claim. Therefore, assignment of an earlier effective date is not possible under 38 C.F.R. § 3.155. In sum, there is no support for an award of an earlier effective date prior to November 29, 2006, for the 10 percent rating assigned for the residuals of a left foot fracture, to include on the basis of CUE. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER An effective date earlier than November 29, 2006, for the award of a 10 percent disability evaluation for residuals of a left foot fracture, to include on the basis of CUE, is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs