Citation Nr: 1335132 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 13-07 226 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah THE ISSUE 1. Entitlement to an earlier effective date for the grant of service connection for post traumatic stress disorder on the basis of clear and unmistakable error in a February 2001 RO rating decision. 2. Entitlement to an earlier effective date for the grant of service connection for residuals of shell fragment wounds to the left hand, right leg, anterior throat and scrotum on the basis of clear and unmistakable error in an August 1988 RO rating decision. REPRESENTATION Appellant represented by: James M. McElfresh, II, VA Accredited Claims Agent WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from February 1969 to December 1971. By rating action in August 1988, service connection was established and a non-compensable evaluation assigned for SFW scars of the left hand, right leg, anterior throat and scrotum; effective from February 26, 1988. The Veteran was notified of this decision and did not appeal. By rating action in February 2001, service connection was established and a noncompensable evaluation assigned for PTSD; effective from October 5, 2000. The Veteran and his representative were notified of this decision and did not appeal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 decision by the RO which denied the benefits sought on appeal. A videoconference hearing before the undersigned was held in July 2013. 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 failed to report for a VA examination in January 1972, scheduled in connection with his original claim for service connection, and did not submit any evidence or contact VA to reschedule within one year of notification of the examination, and that claim was abandoned. 2. The Veteran's claim of entitlement to service connection for residuals of SFW was received by the RO on February 26 1988; the Veteran did not appeal the August 1988 rating decision that granted service connection and assigned a noncompensable evaluation for residuals of SFW to the left hand, right leg, anterior throat and scrotum; effective from February 26, 1988, and that rating decision is final. 3. The Veteran's original claim seeking service connection for PTSD was received by the RO on October 5, 2000; the Veteran did not appeal the February 2001 rating decision that granted service connection for PTSD, and assigned a noncompensable evaluation; effective from October 5, 2000, and that rating decision is final. 4. The assigned effective dates in the August 1988 and February 2001 rating decisions were based on the record and the law that existed at the time and did not involve undebatable error which, had it not been made, would have manifestly changed the outcome of the decisions. CONCLUSIONS OF LAW 1. An effective date earlier than February 26, 1988, for the grant of service connection for SFW scars of the left hand, right leg, anterior throat and scrotum is not assignable based on clear and unmistakable error. 38 U.S.C.A. §§ 5101(a), 5103, 5103A, 5107, 5110(a) (West 2002); 38 C.F.R. §§ 3.159, 3.105(a), 3.400(b)(2) (2013). 2. An effective date earlier than October 5, 2000, for the grant of service connection for PTSD is not assignable based on clear and unmistakable error. 38 U.S.C.A. §§ 5101(a), 5103, 5103A, 5107, 5110(a) (West 2002); 38 C.F.R. §§ 3.159, 3.105(a), 3.400(b)(2) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duties to notify and assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). In regard to the CUE claims, the VCAA does not apply. In Livesay v. Principi, 15 Vet. App. 165 (2001), the Court held that "there is nothing in the text or the legislative history of VCAA to indicate that VA's duties to assist and notify are now, for the first time, applicable to CUE motions." The Court in Livesay held that CUE claims are not conventional claims, but rather are requests for revisions of previous decisions. A claim of CUE is not by itself a claim for benefits. Thus, CUE is fundamentally different from any other kind of action in the VA adjudicative process. A litigant alleging CUE is not pursuing a claim for benefits, but rather is collaterally attacking a final decision. Thus, a "claimant," as defined by 38 U.S.C.A. § 5100, cannot encompass a person seeking a revision of a final decision based upon CUE. As a consequence, VA's duties to notify and assist contained in the VCAA are not applicable to the Veteran's CUE claim. Law & Regulations - In General The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 (West 2002) and 38 C.F.R. § 3.400 (2013). Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim re-opened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C.A. § 5110(a). The implementing regulation clarifies this to mean, except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim re-opened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. Unless otherwise provided, the effective date for an award of service connection and disability compensation, based on an original claim, is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, the date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a), (b)(l); 38 C.F.R. § 3.400(b)(2). Additionally, VA Regulations provide that a determination on a claim by the agency of original jurisdiction of which the claimant is properly notified is final if an appeal is not perfected within one year of the date that notice of the determination is mailed to the claimant. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103(2013). To establish a valid clear and unmistakable error (CUE) claim, a claimant must show that either the correct facts, as they were known at the time, were not before the adjudicator, or that the statutory or regulatory provisions extant at the time were incorrectly applied. Russell v. Principi, 3 Vet. App. 310, 313 (1992). CUE is a very specific and rare kind of error of fact or law that compels the conclusion, to which reasonable minds could not differ, that the result in the decision in question would have been manifestly different but for the error. Fugo v. Brown, 6 Vet. App. 40, 43 (1993). The claimant must assert more than a mere disagreement as to how the facts were weighed or evaluated. Eddy v. Brown, 9 Vet. App. 52 (1996). When attempting to raise a claim of CUE, a claimant must describe the alleged error with some degree of specificity, and provide persuasive reasons as to why the result would have been manifestly different but for the alleged error. Fugo, supra. In Damrel v. Brown, 6 Vet. App. 242 (1994), the United States Court of Appeals for Veterans Claims (Court) explained that in order for clear and unmistakable error to exist: (1) "[e]ither the correct facts, as they were known at that 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 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 clear and unmistakable error must be based on the record and law that existed at the time of the prior adjudication in question. Damrel, 6 Vet. App. at 245 (quoting Russell, supra). See Bustos v. West, 179 F.3d 1378, 1381 (1999) (to prove the existence of CUE as set forth in 38 C.F.R. § 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). An alleged failure in the duty to assist by the RO may never form the basis of a valid claim of CUE, because it essentially is based upon evidence that was not of record at the time of the earlier rating decision. See Elkins v. Brown, 8 Vet. App. 391, 396 (1995); Caffrey v. Brown, 6 Vet. App. 377, 384 (1994). Where evidence establishes CUE, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. Id. Effective February 1, 1990, Title 38, U.S.C. § 5104(b) requires the RO to specify, in each rating decision, the evidence considered and the reasons for the disposition; before that time, rating decisions generally lacked such specificity. See 38 U.S.C.A. § 5104(b) (West 2002); see also Crippen v. Brown, 9 Vet. App. 412, 420 (1996). Thus, "[s]ilence in a final RO Decision made before February 1990 cannot be taken as showing a failure to consider evidence of record." Id. at 421. Factual Background In the present case, the Veteran filed a claim for service connection with VA in December 1971, and stated that he was "wounded by a booby trap" in Vietnam in September 1969. The Veteran was scheduled for a VA examination in January 1972, but failed to report and did not contact VA to request to reschedule. In a letter dated in January 1972, the RO notified the Veteran that his claim was denied because he failed to report for his scheduled examination. The Veteran was advised that no further action would be taken on his claim unless he notified VA of his willingness to report for a VA examination. Upon receipt of his notification, an examination would be rescheduled and his claim would be reconsidered following the examination. The letter was mailed to the Veteran at his then current address of record, and was not returned by the U.S. Postal Service. In February 1988, the Veteran filed a claim of service connection for residuals of shrapnel wounds to the left hand, left shoulder, both legs and scrotum. The Veteran was subsequently examined by VA, and by rating action in August 1988, was granted service connection for SFW scars of the left hand, both legs, anterior throat and scrotum. The Veteran was assigned a noncompensable evaluation; effective from February 26, 1988, the date of receipt of his reopened claim. The Veteran was notified of this decision by letter dated in August 1988, and did not appeal. In October 2000, the Veteran filed a claim for service connection with VA, and indicated that he had PTSD since Vietnam. Following a VA QTC examination in January 2001, the RO granted service connection for PTSD by rating action in February 2001, and assigned a noncompensable evaluation; effective from October 5, 2000, the date of receipt of claim. The Veteran was notified of this decision by letter dated in February 2001, and did not appeal. In a letter received in May 2002, the Veteran indicated that he wanted to reopen his claim for an increased rating for PTSD. Following a VA examination in June 2002, the RO assigned an increased rating to 30 percent by rating action in August 2002; effective from May 13, 2002, the date of receipt of his claim for increase. In a letter received in September 2002, the Veteran expressed dissatisfaction with the effective date assigned for the 30 percent evaluation. By rating action in October 2002, the RO denied the claim for an earlier effective date, and the Veteran subsequently perfected an appeal of this issue. However, in December 2003, the Veteran withdrew his appeal for an earlier effective date for the 30 percent evaluation assigned for PTSD. By rating action in July 2003, the RO assigned a separate 10 percent evaluation for left leg scars, and continued the noncompensable evaluation for SFW scars of the left hand, right leg, anterior throat and scrotum. The Veteran and his representative were notified of this decision and did not appeal. The Veteran's claims for increased ratings for PTSD, left leg scar, and SFW scars of the left hand, right leg, anterior throat and scrotum were denied by the RO in February 2004, and were not appealed. By rating action in October 2005, the RO assigned an increased rating for PTSD to 50 percent; effective from May 11, 2005, the date of receipt of a claim for increase. The Veteran perfected an appeal of this issue. In March 2011, the Board denied an increased rating for PTSD in excess of 50 percent, an increased rating in excess of 10 percent for the left leg SFW scars and an earlier effective date for the award of a 10 percent evaluation for the left leg SFW scars. A claim for an earlier effective date for the grant of service connection for PTSD and SFW scars of the left hand, right leg, anterior throat and scrotum, including based on clear and unmistakable error was received from the Veteran in July 2011, and his representative in September 2011. By rating action in June 2012, the RO denied the Veteran's claims for effective dates earlier than February 26, 1988, for the grant of service connection for SFW scars of the left hand, right leg, anterior throat and scrotum, and earlier than October 5, 2000 for the grant of service connection for PTSD. Discussion & Analysis The representative contends that the effective date of the Veteran's grant of service connection for PTSD and residuals of SFW to the left hand, right leg, anterior throat and scrotum should be December 22, 1971, the date of his original application for VA compensation benefits. With respect to the PTSD, he asserted that the RO failed to "give a sympathetic reading" to the Veteran's original claim, in which he sought to establish service connection for "[wounds] by a booby trap." The representative argued that the Veteran's service treatment records (STRs) showed that he sustained multiple SFWs during combat and was treated for anxiety during service, and that the RO should have liberally interpreted the STRs as a claim for a psychiatric disorder was clear and unmistakable error (CUE). Further, that the Veteran failed to report for a January 1972 VA examination notwithstanding, the RO erred in not adjudicating the Veteran's claim for residuals of SFW of the left hand, right leg, anterior throat and scrotum based on the evidence of record as required under 38 C.F.R. § 3.655. The representative referred to various decisions handed down by the United States Court of Appeals for Veterans Claims (Court), the United States Court of Appeals for the Federal Circuit (Federal Circuit) and a VA General Counsel opinion that support his arguments and alleged that the RO's failure to assign the effective date for the Veteran's disabilities from the date of discharge from service was CUE. Initially, it should be noted that the actions of the RO in 1971, predated the enactment of the VCAA and the establishment of the Court of Appeals for Veterans Claims. The regulations in effect in 1971, specifically, 38 C.F.R. § 3.655 differed substantively from the current regulation, and did not provide that claims are to be rated based on the evidence of record when a claimant fails to report for a VA examination in connection with an original claim. On the contrary, § 3.655 in effect in December 1971, was concerned primarily with the actions to be taken when claimants fail to report for VA examinations in connection with increased ratings claims and abandoned claims, and had no specific provisions for rating original claims based on the evidence of record. Section 3.655(a), in effect in 1971, provided that when a Veteran without adequate reason fails to report for a VA examination, including periods of hospital observation requested for pension or compensation purposes, the awards to the Veteran and any dependents will be discontinued. Sections (b), (c), (d) and (e) addressed adjustments for static disabilities and prestablization ratings, and resumptions when there was no change in an evaluation, reduced evaluations and increased evaluations. Section 3.655(f) abandoned claims, provided that if the claim was abandoned, and the Veteran subsequently states that he is willing to report for examination, benefits may be paid from the date of receipt of the new claim if he reports for such examination within one year from the date of notice to report. The cross references also cited to abandoned claims under § 3.158 and claimants required to report when requested § 3.329. Abandoned claims under 38 C.F.R. § 3.158, provided that where evidence requested in connection with an original claim a claim for increase or to reopen or for the purpose of determining continued entitlement is not furnished within one year after the date of request, the claim will be considered abandoned. After the expiration of one year, further action will not be taken unless a new claim is received. Should the right to benefits be finally established, pension, compensation, or dependency and indemnity compensation based on such evidence shall commence not earlier than the date of filing the new claim. Under 38 C.F.R. § 3.329, claimants required to report when requested, provided that every person applying for or in receipt of compensation or pension shall submit to examinations, including periods of hospital observation, when required by the Veterans Administration under Veterans Administration regulations or other proper authority. Because the Veteran failed to report for the January 1972 VA examination or to respond to the RO's January 1972 notification letter, his original claim of service connection for residuals of SFW scars was abandoned. See 38 C.F.R. §§ 3.158, 3.655(f), 3.329 (1971). A new claim for service connection for the SFW scars was received by VA in February 1988. The Veteran was subsequently granted service connection for the SFW scars and was assigned a noncompensable evaluation; effective from February 26, 1988, the date of receipt of his new claim. 38 C.F.R. § 3.400(q)(2), (r). The Veteran was notified of this decision and did not express dissatisfaction with the rating or effective date assigned, and that decision became final one year from the date of notification. Concerning the Veteran's testimony that he kept the January 1972 VA examination appointment, and was told that he was entitled to a 10 percent rating for his SFW scars, the Board finds that this current contention is inconsistent with the record contemporaneous to the January 1972 letter. The information provided to the rating specialist in January 1972 was that the Veteran did not report for the VA examination, and the same information was reported to the Veteran in the January 1972 letter. It is not plausible to the Board that if the Veteran had shown for the VA examination and was told that he would get a 10 percent rating only to be told a month later that his claim was being denied on account of failure to report for this examination that the Veteran would not immediately respond to this purported error. Indeed, there is no mention of this purported error in 1972 or in 1988 when he filed his new claim. Rather, this contention is made decades after the fact. For these reasons, the Board finds that this testimony is not credible. Consequently, the Board finds the lay statement from a friend and fellow service member that he drove the Veteran to his VA examination in January 1972, and that the Veteran was told that he was entitled to a 10 percent rating cannot be found credible. As to the representative's assertion that the Veteran's December 1971 claim should have been liberally interpreted by the RO as a claim of service connection for PTSD, VA is under no obligation to comb through the Veteran's STRs and extrapolate all potential claims that he might seek to establish at some later time. While various Court decisions have held that VA is required to interpret the Veteran's claims and statements liberally, it does not require VA to anticipate and adjudicate all potential claims. Here, the Veteran made no mention of any psychiatric problems on his original application for VA compensation received in December 1971, or for that matter, when he sought to reopen his claim for SFW scars in February 1988. The first reported complaint to VA of any psychiatric problems was with the filing of his claim in October 2000. The Veteran was subsequently granted service connection for PTSD by the RO in February 2001, effective from the date of receipt of his original claim for PTSD - October 5, 2000. 38 C.F.R. § 3.400(b)(2). In this case, the RO assigned an effective date of February 26, 1988 for the grant of service connection for the SFW scars, the date of receipt of the Veteran's new claim, and an effective date of October 5, 2000, for the grant of service connection for PTSD, the date of receipt of his original claim for PTSD, which are the earliest dates allowable under the applicable regulations. The assigned effective dates in the August 1988 and February 2001 rating decisions were based on the record and the law which existed at the time and did not involve undebatable error which, had it not been made, would have manifestly changed the outcome of the decisions. Accordingly, the Board has determined that CUE has not been shown in the August 1988 and February 2001 rating decisions and the appeal is denied. ORDER Entitlement to an effective date earlier than February 26, 1988, for the grant of service connection for residuals of SFW to the left hand, right leg, anterior throat and scrotum on the basis of clear and unmistakable error in an August 1988 RO rating decision is denied. Entitlement to an effective date earlier than October 5, 2000 for the grant of service connection for PTSD on the basis of clear and unmistakable error in a February 2001 RO rating decision is denied. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs