Citation Nr: 1333363 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 09-43 255 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an effective date earlier than June 28, 2007, for the grant of secondary service connection for right knee patellofemoral syndrome, to include whether there was clear and unmistakable error (CUE) in a July 1980 rating decision which denied service connection on a direct basis. 2. Entitlement to an effective date earlier than June 28, 2007, for the grant of secondary service connection for left knee patellofemoral syndrome, to include whether there was CUE in a July 1980 rating decision which denied service connection on a direct basis. 3. Entitlement to an effective date earlier than June 28, 2007, for the grant of secondary service connection for lumbar strain, to include whether there was CUE in a July 1980 rating decision which denied service connection on a direct basis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1978 to November 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision by the Houston, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). That decision, in pertinent part, established service connection for right knee patellofemoral syndrome as related to the service-connected disability of arthritis with hallux valgus of the right foot, for left knee patellofemoral syndrome as related to the service-connected disability of hammer toe of the foot, and for lumbar strain as related to the service-connected disability of arthritis with hallux valgus of the right foot. Appellate jurisdiction was subsequently transferred to the RO in Los Angeles, California. The Board notes that service connection for right and left knee and lumbar spine disorders has been established on secondary bases, but that a July 1980 rating decision denied entitlement to service connection on a direct basis. A June 2004 rating decision denied requests to reopen those claims. The July 1980 and June 2004 rating decisions have become final and the previously denied direct service connection claims were not addressed in the October 2007 rating decision. The Board finds that the specific disabilities for which secondary service connection is established, patellofemoral syndrome and lumbar strain, are potentially distinct from disabilities attributable to injuries due to direct service connection trauma and do not constitute the same claims in this case. But see, Roebuck v. Nicholson, 20 Vet. App. 307, 313 (2006) (noting that "although there may be multiple theories or means of establishing entitlement to a benefit for a disability, if the theories all pertain to the same benefit for the same disability, they constitute the same claim"). The issues on the title page of this decision have been revised to clarify the matters for appellate review. In June 2012, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The issues on appeal were adequately explained to him and the submission of evidence which he may have overlooked and which would be advantageous to his position was suggested. See 38 C.F.R. § 3.103(c) (2012). The case was remanded for additional development in April 2013. This appeal was processed using a VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The Veteran's statements may be construed as raising claims to reopen previously denied service connection claims for left and right knee and lumbar spine disorders on a direct service connection basis as due to injuries incurred during active service. A September 2013 informal hearing presentation from the Veteran's service representative may also be construed as raising a CUE claim from a June 2004 rating decision based upon information the Veteran provided in June 1999. These claims have not been developed or adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's 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's claims for entitlement to secondary service connection for right and left knee and lumbar spine disorders as a result of service-connected foot disabilities were received by VA on June 28, 2007; an effective date for the grants of service connection has been established from this date. 2. The record does not establish that secondary service connection issues for right and left knee patellofemoral syndrome and lumbar strain were addressed in the unappealed/appeal not perfected July 1980 rating decision, that the decision involved CUE as to these issues, nor that it is otherwise non-final due to a failure to consider potentially existing VA treatment records. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than June 28, 2007, for the grant of secondary service connection for right knee patellofemoral syndrome, to include whether there was CUE in a July 1980 rating decision which denied service connection on a direct basis, have not been met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.400 (2012). 2. The criteria for an effective date earlier than June 28, 2007, for the grant of secondary service connection for left knee patellofemoral syndrome, to include whether there was CUE in a July 1980 rating decision which denied service connection on a direct basis, have not been met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.400 (2012). 3. The criteria for an effective date earlier than June 28, 2007, for the grant of secondary service connection for lumbar strain, to include whether there was CUE in a July 1980 rating decision which denied service connection on a direct basis, have not been met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Veteran was notified of the duties to assist and of the information and evidence necessary to substantiate his underlying service connection claims by correspondence dated in July 2007. The notice requirements pertinent to the issues on appeal have been met and all identified and authorized records relevant to these matters have been requested or obtained. The development requested on remand in April 2013 has been substantially completed. There is no evidence of any additional existing records pertinent to the effective date issues presently on appeal. VA treatment records dated prior to July 1980, even if pertinent to the issue of service connection, could not be considered for earlier effective dates. The Board finds that further attempts to obtain additional evidence would be futile. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in 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). The available evidence is sufficient for adequate determinations. There has been substantial compliance with all pertinent VA law and regulations and to adjudicate the claims would not cause any prejudice to the appellant. Earlier Effective Date Claims The Veteran claims, in essence, that earlier effective dates are warranted for his right and left knee patellofemoral syndrome and lumbar strain disabilities from the date of his initial application for service connection in November 1979. He has asserted that the July 1980 rating decision involved CUE and he noted that the July 1980 decision did not consider all of the records of his VA treatment. He does not contend that he provided a claim to establish service connection on a secondary basis prior to June 28, 2007. VA law provides that the effective date for an award of disability compensation based on an original claim for direct service connection, if the claim is received within one year after separation from service, shall be the day following separation from active service or the date entitlement arose; otherwise, and for reopened claims, it shall 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 & Supp. 2012); 38 C.F.R. § 3.400 (2012). VA regulations provide that the terms claim and application mean 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) (2012). Generally, the date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). 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 (West 2002). 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) (2012). 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, 313-14 (1992) (en banc). The United States Court of Appeals for Veterans Claims (hereinafter "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."). In Deshotel v. Nicholson, 457 F.3d 1258 (Fed. Cir. 2006), the Federal Circuit held that where a veteran files more than one claim with the RO at the same time and the RO's decision acts (favorably or unfavorably) on one of the claims, but fails to specifically address the other claim, the second claim is deemed denied, and the appeal period begins to run. The Federal Circuit subsequently held that the "implicit denial rule" established in Deshotel applies where a regional office's decision provides a veteran with reasonable notice that his claim for benefits was denied. See Adams v. Shinseki , 568 F.3d 956, 964 (Fed. Cir. 2009); see also Ingram v. Nicholson, 21 Vet. App. 232 (2007) (explaining the implicit denial rule as "where an RO decision discusses a claim in terms sufficient to put the claimant on notice that it was being considered and rejected, then it constitutes a denial of that claim even if the formal adjudicative language does not 'specifically' deny that claim"), Cogburn v. Shinseki, 24 Vet. App. 205, 211-214 (2010) (four factors for consideration when determining whether a claim was implicitly denied: (1) "The relatedness of the claims"; (2) "whether the adjudication alluded to the pending claim in such a way that it could reasonably be inferred that the prior claim was denied"; (3) "the timing of the claims"; and (4) whether "the claimant is represented."). Based upon the evidence of record, the Board finds the Veteran's claims for entitlement to secondary service connection for right and left knee and lumbar spine disorders as a result of service-connected foot disabilities were received by VA on June 28, 2007, and that effective dates have been established from this date. There is no evidence of any earlier claims as to these specific issues nor does the Veteran assert that he provided any such claims. Therefore, effective dates earlier than June 28, 2007, for the awards of secondary service connection for right and left knee patellofemoral syndrome and lumbar strain are not warranted. The Board also finds the record does not establish that secondary service connection issues for right and left knee patellofemoral syndrome and lumbar strain were addressed in the unappealed/appeal not perfected July 1980 rating decision, that the July 1980 rating decision involved CUE as to these issues, nor that the July 1980 rating decision is otherwise non-final as to these issues due to a failure to consider potentially existing VA treatment records. Although the Court in Bell v. Derwinski, 2 Vet. App. 611 (1992), found that VA medical records are held to be within the Secretary's control and are considered to be a part of the record, the Court in Damrel, 6 Vet. App. 242, held that the constructive notice obligations for VA do not apply to CUE claims. The Court has also held that the constructive possession doctrine articulated in Bell is not applicable to decisions, like the July 1980 decision in this case, that predate the Bell decision in 1992. See Beraud v. Shinseki, No. 11-726 (U.S. Vet. App. May 17, 2013). The Board notes that the Veteran has reported that he received VA treatment pertinent to knee and back disorders prior to June 28, 2007, and the record reflects that in correspondence dated in June 1999 he identified VA treatment records that are not included in the available record. He does not contend that those records are pertinent to his secondary service connection awards, but rather that they should have been obtained to establish direct service connection. Even assuming that these records may have raised the issue of entitlement to service connection on a secondary basis, such procedural errors or failure to meet a duty to assist does not render a rating decision non-final. See Cook, 318 F.3d 1334. Any such secondary service connection claims are also found to have been implicitly denied by the July 1980 and June 2004 rating decisions. A secondary service connection claim would have been closely related to the direct service connection claims adjudicated, the adjudications alluded to the pending claims in such a way that it could reasonably be inferred that any secondary service connection claims were denied, the timing of the claims would have been simultaneous, and the Veteran was represented at the time. There is no factual basis, in this case, for an earlier effective date for the secondary service connection awards. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The preponderance of the evidence in this case is against the Veteran's claims. ORDER Entitlement to an effective date earlier than June 28, 2007, for the grant of secondary service connection for right knee patellofemoral syndrome, to include whether there was CUE in a July 1980 rating decision which denied service connection on a direct basis, is denied. Entitlement to an effective date earlier than June 28, 2007, for the grant of secondary service connection for left knee patellofemoral syndrome, to include whether there was CUE in a July 1980 rating decision which denied service connection on a direct basis, is denied. Entitlement to an effective date earlier than June 28, 2007, for the grant of secondary service connection for lumbar strain, to include whether there was CUE in a July 1980 rating decision which denied service connection on a direct basis, is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs