Citation Nr: 1334844 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 11-16 746 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to a temporary 100 percent disability rating for hospitalization in excess of 21 days for a service connected condition. 2. Entitlement to an effective date prior to June 1, 2009, for the grant of service connection for residuals of cold injury of the lower left extremity. 3. Entitlement to an effective date prior to June 1, 2009, for the grant of service connection for residuals of cold injury of the lower right extremity. REPRESENTATION Appellant represented by: Carl B. Bedell, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant, his spouse, and his son. ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The Veteran served on active duty from September 1947 to September 1951, including service in Korea. With regard to the effective date issues, this matter comes to the Board of Veterans' Appeals (Board) from a March 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was filed in May 2011, a statement of the case was issued in May 2010, and a substantive appeal was received in June 2011. With regard to the issue of entitlement to a temporary 100 percent disability rating for hospitalization in excess of 21 days for a service connected condition, this matter comes to the Board from a March 2012 RO rating decision. A notice of disagreement was filed in April 2012, a statement of the case was issued in July 2012, and a substantive appeal was received in February 2013. The Veteran testified at a Board hearing in July 2013. The transcript of this hearing is of record. Additional evidence with waiver of preliminary RO review were both received in July 2013. NEW CLAIMS IN NEED OF RO ACTION: Also of importance is that a claim of clear and unmistakable error (CUE) was raised in this appeal at the July 2013 Board hearing. The Veteran's representative argued that December 1999 and May 2001 RO rating decisions denying service connection for residuals of cold injury to both lower extremities contained CUE. The representative also argued that the these RO rating decisions contained CUE with regard to additional denials of entitlement to service connection for cold injury residuals of the upper extremities. The representative specifically pointed to VA M-21 Manual provisions dealing with adjudication of cold injury claims by veterans who served in the Chosin Reservoir Campaign in Korea. The representative argued that these provisions were already in effect at the time of the 1999 and 2001 rating decisions. The RO has not specifically considered whether there was CUE in the prior rating decisions, and the Board is precluded from considering this question in the first instance. Jarrell v. Nicholson, 20 Vet. App. 326 (2006) (Board lacked jurisdiction to review on the merits a request for revision of RO decision on the basis of a theory of CUE which had not first been presented or adjudicated by the RO). The Board must therefore hereby refer the CUE claims to the RO for adjudication at that level. Because CUE claims are unique claims that are collateral attacks on prior final rating decisions, and because the law and regulations governing such issues are different from the adjudicatory action required in addressing a claim for an earlier effective date, the Board finds that the CUE claim is not intertwined with the earlier effective date issues on appeal. This is so even though the grant of an earlier effective date can result from an award based on a finding of CUE. No CUE claim has been developed for the Board's review. Consequently, the effective date question on appeal is addressed in the decision below and, as noted above, the CUE claim is referred to the RO for adjudicatory action. The Veteran's July 2013 Board hearing testimony also advanced contentions for additional claims that are not currently in appellate status. The issues of entitlement to "special compensation for loss of use of feet," "[a]nd also for aid and attendance," and entitlement to service connection for residuals of cold injury residuals of the hands appear to have been raised by the hearing testimony and the associated July 2013 written argument, but have not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over them, and they are referred to the RO 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. On the record during the Veteran's July 2013 Board hearing, the Veteran withdrew the appeal of the issue of entitlement to a temporary 100 percent disability rating for hospitalization in excess of 21 days for a service connected condition. 2. A May 2001 RO rating decision denied entitlement to service connection for residuals of cold injuries to both lower extremities. 3. The Veteran failed to initiate an appeal of the May 2001 rating decision within one year or submit new and material evidence within a year of the denial. 4. On June 1, 2009, the Veteran effectively requested a reopening of his claim of entitlement to service connection for residuals of cold injuries to both lower extremities. 5. In a March 2010 decision, the RO granted service connection for residuals of cold injuries to both lower extremities and assigned an effective date of June 1, 2009, for the grants of service connection for residuals of cold injuries to both lower extremities. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a Substantive Appeal have been met with respect to the issue of entitlement to a temporary 100 percent disability rating for hospitalization in excess of 21 days for a service connected condition. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2013). 2. The May 2001 rating decision is a final decision denying entitlement to service connection for residuals of cold injuries to both lower extremities. 38 U.S.C.A. § 7105 (West 2002). 3. The requirements for an effective date prior to June 1, 2009, for the grant of service connection for residuals of cold injury to the lower left extremity have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.159, 3.400 (2013). 4. The requirements for an effective date prior to June 1, 2009, for the grant of service connection for residuals of cold injury to the lower right extremity have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.159, 3.400 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Dismissal of Claim Withdrawn at Hearing Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his/her authorized representative. 38 C.F.R. § 20.204. Regarding the issue of entitlement to a temporary 100 percent disability rating for hospitalization in excess of 21 days for a service connected condition, the Veteran withdrew his appeal of this matter on the record at the July 2013 Board hearing. Thus, there remain no allegations of errors of fact or law for appellate consideration with respect to this issue. Accordingly, the Board does not have jurisdiction to review the appeal on this matter, and the issue of entitlement to a temporary 100 percent disability rating for hospitalization in excess of 21 days for a service connected condition is dismissed. Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file (including the Virtual VA electronic claims file), with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran contends that he is entitled to an earlier effective date for the grant of service connection for residuals of cold injury to both lower extremities. Specifically, he asserts that the award should be made effective from either the date of his separation from service in September 1951 or, alternatively, a date corresponding to his prior filing of claims for service connection for residuals of cold injury. The Board has thoroughly reviewed the Veteran's claims file and concludes that in light of the evidence of record and procedural history, the Veteran's claim for an effective date prior to June 1, 2009, for the grants of service connection for residuals of cold injury to the lower extremities must be denied. An effective date earlier than June 1, 2009, is inconsistent with laws enacted by the Congress and implementing regulations concerning effective dates for award of compensation. The effective date of an award based on a claim reopened after final disallowance shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor or the date entitlement arose, whichever is later. See 38 U.S.C.A. § 5110(a); 38 C.F.R. §§ 3.400(q)(1)(ii); 3.400(r). The claims-file documents that the Veteran filed claims for service connection for residuals of cold injury to his lower extremities prior to June 1, 2009; the record includes documentation of claims in 1998 and 1999. While the Veteran filed his original claims for service connection for residuals of cold injury to his lower extremities before June 1, 2009, the Veteran's claims were adjudicated and denied in a May 2001 RO rating decision. The Board finds that any and all allegedly pending claims filed prior to the May 2001 RO rating decision were addressed and denied by the May 2001 RO rating decision addressing the pertinent issues. The Board observes that the Veteran was previously denied entitlement to service connection for residuals of cold injuries to the lower extremities by RO rating decisions documented in the claims-file dated in August 2000 and in December 1999. The Veteran has testified, including at his July 2013 Board hearing, that he filed additional earlier claims for this benefit that are not documented in the claims-file; the Board finds regardless of whether earlier such claims were filed, the RO rating decisions addressing the issues effectively adjudicated any and all prior instances of the claims on those issues which may have arguably been pending. The claims of entitlement to service connection for residuals of cold injury to the lower extremities were denied in the May 2001 RO rating decision. The Veteran was furnished notice of that decision and appellate rights by letter dated that same month. The record does not show that a notice of disagreement was timely filed, nor does it show that new and material evidence was received within one year. The Veteran does not allege otherwise. Although the Veteran's July 2010 correspondence suggested that he believed he had appealed earlier denials, the documentation of record does not suggest that a timely appeal was filed for any pertinent rating decision prior to June 1, 2009. The Veteran's presentation at his July 2013 Board hearing further acknowledged that the Veteran does not contend that a timely appeal was actually initiated from any pertinent rating decision prior to June 1, 2009. During the July 2013 Board hearing, the Veteran's representative clearly explained: "I think that there's no evidence that he did prosecute that claim after the final decision was made in 2001 until 2009 ... there was no new evidence submitted." The Veteran's representative clarified that the basis of the argument for revision of the effective dates rest upon allegations of CUE in the prior final denials and not any contention that the prior denials were not final or were left pending with past appeals. Accordingly, the Board finds that the May 2001 RO rating decision is final. Generally, an unappealed RO denial is final under 38 U.S.C.A. § 7105(c). The Veteran's Board hearing testimony in July 2013 included the suggestion that he did not receive notification of any prior denial of a service connection claim. The Board finds that the record does not support such a finding. The Board notes that there is a presumption of regularity of government process that can only be rebutted by clear evidence to the contrary. Ashley v. Derwinski, 2 Vet. App. 62 (1992). The documentation in the claims file indicates that prior RO rating decisions were mailed to the Veteran's address of record; no evidence clearly shows any irregularity in the processing of the pertinent prior RO rating decisions. According to VA law, "[p]revious determinations which are final and binding ... will be accepted as correct in the absence of clear and unmistakable error (CUE)." See 38 C.F.R. § 3.105(a). The Veteran does not otherwise contend that the May 2001 rating decision is not final, rather he has focused his contentions upon a theory that this and/or other prior rating decisions on the cold injuries issues should be revised on the basis of CUE. During the July 2013 Board hearing, the Veteran's representative clearly explained: "So the argument really is one of clear and unmistakable error. The VA didn't abide by its own regulations." As explained above, the CUE contentions may not be considered with this current appeal and will be addressed appropriately by the RO before they may be prepared for proper appellate review. The Board's consideration in this current appeal is limited to the laws and regulations governing the assignment of effective dates; the Board does not reach the Veteran's contentions of CUE at this time as these must be considered separately as collateral attacks on the prior final rating decisions The Board concludes that the May 2001 RO rating decision denying service connection for residuals of cold injury to both lower extremities was a final disposition of all claims for those benefits filed prior to June 1, 2009. No pending claim for entitlement to service connection for residuals of cold injuries to the lower extremities survived the May 2001 rating decision. Neither the Veteran nor the documentation of record indicates any new claim for service connection for residuals of cold injury to the lower extremities between the May 2001 RO denial and the June 1, 2009 effective date. Likewise, there is no indication that the Veteran filed a timely appeal of the May 2001 RO rating decision (or any pertinent prior rating decision). The May 2001 RO rating decision denying service connection for residuals of cold injury to the lower extremities is final. As there was no pending claim prior to June 1, 2009, the Board concludes that an effective date earlier than June 1, 2009, is not warranted. See 38 C.F.R. § 3.400(o). As such, the Board finds that the preponderance of the evidence is against the Veteran's claim. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Veterans Claims Assistance Act of 2000 In conclusion, the Board notes that the Veterans Claims Assistance Act of 2000, codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 and 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a), provides, among other things, for notice and assistance to claimants under certain circumstances. Congress, in enacting the statute, noted the importance of balancing the duty to assist with "the futility of requiring VA to develop claims where there is no reasonable possibility that the assistance would substantiate the claim." Mason v. Principi, 16 Vet. App. 129, 132 (2002) (quoting 146 CONG. REC. S9212 (daily ed. Sept. 25, 2000) (statement of Sen. Rockefeller)). When the law and not the evidence is dispositive of the claim, the VCAA is not applicable. See Mason, 16 Vet. App. at 132 (VCAA not applicable to a claim for nonservice-connected pension when the claimant did not serve on active duty during a period of war); Smith (Claudus) v. Gober, 14 Vet. App. 227 (2000) (VCAA did not affect a federal statute that prohibited payment of interest on past due benefits), aff'd, 28 F.3d 1384 (Fed. Cir. 2002). With respect to the above issues, VCAA notice is not necessary because the outcome of an earlier effective date claim depends on documents which are already contained in the VA claims file. The Court has held that a veteran claiming entitlement to an earlier effective date is not prejudiced by failure to provide him with VCAA notice of the laws and regulations governing effective dates, if, based on the facts of the case, entitlement to an earlier effective date is not shown as a matter of law. See Nelson v. Principi, 18 Vet. App. 407, 410 (2004). The Board observes in passing that the Veteran was furnished with VCAA notice, including in a June 2010 letter, in this case. The decision in this case does not rely upon any facts in dispute; the appeal is decided entirely through application of law to determine the proper effective date for assignment on the basis of uncontested facts resulting in determining the finality of the RO's May 2001 denial of the Veteran's claim of entitlement to service connection for residuals of cold injury to the lower extremities, resolving any and all prior pending claims for that benefit. Although the Veteran does contend that he has experienced the claimed disabilities since military service, even assuming that this is true does not impact the outcome of this decision; the effective date assigned is the earliest date allowable under the law, corresponding to the earliest date of claim following prior final adjudication. In sum, as the law is dispositive with respect to the issue on appeal seeking assignment of an earlier effective date, the VCAA is not applicable. ORDER The appeal on the issue of entitlement to a temporary 100 percent disability rating for hospitalization in excess of 21 days for a service connected condition is dismissed. Entitlement to an effective date prior to June 1, 2009, for the grant of service connection for residuals of cold injury of the lower left extremity is not warranted. To this extent, the appeal is denied. Entitlement to an effective date prior to June 1, 2009, for the grant of service connection for residuals of cold injury of the lower right extremity is not warranted. To this extent, the appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs