Citation Nr: 1338061 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 12-13 883 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to an effective date earlier than May 23, 2011 for a grant of service connection for radiculopathy of the left lower extremity on the basis of clear and unmistakable error (CUE) in a March 10, 1992 rating decision. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. M. Gillett, Counsel INTRODUCTION The Veteran served on active duty from April 1983 to August 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which granted service connection for radiculopathy of the left lower extremity, effective May 23, 2011. The Veteran testified at a hearing in November 2012 before the undersigned Acting Veterans Law Judge, held via videoconferencing (videoconference hearing). FINDINGS OF FACT 1. A rating decision issued by the RO on March 10, 1992, in pertinent part, denied the Veteran's claim for service connection for a left hip disorder. 2. The correct facts, as they were known at that time, were before the adjudicator in March 1992, and the statutory or regulatory provisions extant at the time were correctly applied. CONCLUSION OF LAW The March 1992 rating decision that denied the Veteran's initial claim for service connection for a left hip disorder did not contain CUE. 38 U.S.C.A. § 5109A (West 2002); 38 C.F.R. § 3.105(a) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Here, VCAA notice is not required because the issue presented involves a claim that cannot be substantiated as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law); VAOPGCPREC 5-2004 (June 23, 2004) (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). As noted above, the Veteran testified at a videoconference hearing before the undersigned Acting Veterans Law Judge (AVLJ). The hearing was adequate as the AVLJ explained the issue. Moreover, the AVLJ and the Veteran's representative gave a thorough description of possible sources of evidence that may have been overlooked. 38 C.F.R. 3.103(c)(2) (2012); Bryant v. Shinseki, 23 Vet. App. 488 (2010). Pursuant to 38 C.F.R. § 3.104(a) (2012), "[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 & Supp. 2012). 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. See also 38 U.S.C.A. §§ 210(c), 7103 (West 2002). Under 38 C.F.R. § 3.105(a), a prior final decision of the VA can be reversed or amended where evidence establishes "clear and unmistakable error." The Court of appeals has provided a three-part test to determine if there was CUE in a prior decision, as follows: (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 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)). The Court has consistently stressed the rigorous nature of the concept of CUE. "Clear 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 simple disagreement with how the RO evaluated the facts is not sufficient to raise a valid claim of CUE. Luallen v. Brown, 8 Vet. App.92, 95 (1995). A mere misinterpretation of facts does not constitute CUE. Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). CUE "is a kind of error, of fact or of law, that when called to the attention of later reviewers, compels the conclusion, to which reasonable minds cannot differ, that the results would have been manifestly different but for the error." Fugo v. Brown, 6 Vet. App. 40, 43 (1993). The effective date of a grant of service connection is governed by 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012) as implemented by 38 C.F.R. § 3.400 (2012). 38 U.S.C.A. § 5110(a) states, "unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened 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 therefore." 38 U.S.C.A. § 5110(b)(1) states that "the effective date of an award of disability compensation to a veteran shall be the day following the date of the veteran's discharge or release if application therefore is received within one year from such date of discharge or release." The regulation implementing 38 U.S.C.A. § 5110 provides that the effective date of an evaluation and award of compensation based on direct service connection shall be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from active service; otherwise it shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(i)(2). Briefly reviewing the procedural history of this matter, the Veteran was discharged from service on August 30, 1991. In a rating decision issued on March 10, 1992, the RO, in pertinent part, granted service connection for a low back disability and denied the Veteran's claim for service connection for a left hip disorder. The Veteran submitted an April 1992 Notice of Disagreement, disagreeing with the portion of the March 1992 rating decision denying service connection for a left hip disorder, and in May 2002, the RO issued a Statement of the Case (SOC). In accordance with a request from the Veteran, the Veteran testified in May 1992 at a formal hearing at the RO before a Decision Review Officer (DRO hearing). In December 1992, the DRO issued a "Hearing Officer's Decision," continuing the denial of the Veteran's claim for service connection for a left hip disorder, with an attached letter informing the Veteran of his need to submit a Substantive Appeal to the Board to continue his appeal. The Veteran did not submit any document that could reasonably be construed as a Substantive Appeal to the Board within a year of the issuance of the March 10, 1992 rating decision and it became final. 38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2012); 38 C.F.R. § 20.1100 (2012). On May 23, 2011, the Veteran submitted an application to reopen service connection for a left hip disorder which he stated was "due to my sciatica nerve condition due to my s.c. back." In a November 2011 rating decision, the RO granted service connection for radiculopathy of the left extremity, claimed as service connection for a left hip and left foot condition, effective the date of the application to reopen service connection for a left hip disorder, May 23, 2011. The Veteran does not contend that he filed a timely appeal of the March 1992 decision that denied his initial claim for service connection for a left hip disorder. Instead, the Veteran contends that the March 1992 rating decision contained CUE in that the RO failed to consider evidence indicating that he had experienced left hip pain during service. The Veteran argues that, as he experienced left hip pain during service, he should be compensated back to his date of discharge. At the time of the March 1992 rating decision, VA regulations stated that service connection for a disease might be established by demonstrating that it was incurred in or aggravated during military service. 38 U.S.C.A. §§ 1110, 1131 (West 1991), 38 C.F.R. § 3.303 (1991). In the March 1992 rating decision, the RO noted that the Veteran was treated for left hip pain during service, to include on multiple occasions in 1990. The RO indicated that the prevalent in-service diagnoses were for either bursitis or muscle tightness. However, the RO also noted the results of a March 1992 VA medical examination report in which a VA examiner indicated finding no abnormality of the hips upon both physical examination and X-ray examination. In that report, the March 1992 VA examiner diagnosed left hip pain with the doubtful possibility of degenerative joint disease of the hips due to the normal X-ray report. Noting this diagnosis, the RO denied the Veteran's claim due to the lack of a present disability as VA regulations at the time did not allow, and presently do not allow, for the granting of service connection for pain alone. See, e.g., Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), aff'd in part, vacated and remanded in part on other grounds, 259 F.3d 1356 (Fed. Cir. 2001) (holding that pain alone, without a diagnosed or underlying malady or condition, is not a disability for which service connection may be granted). Therefore, the Board notes that the RO indicated that they had considered specific pieces of evidence both supporting and weighing against the Veteran's claim in the March 1992 rating decision itself. To the extent with which the Veteran disagrees with how the RO weighed the evidence, mere disagreement with the weighing of medical evidence does not amount to CUE. See Russell, 3. Vet. App. at 313-14; see also 38 C.F.R. § 20.1403(d) (2012). The Veteran also contends that the RO failed in providing adequate medical examinations to determine the etiology of his left hip pain during the pendency of his initial claim for service connection for a left hip disorder. During that period, the Veteran was provided with VA medical examinations to determine the nature and etiology of his claimed left hip disorder in March 1992 and June 1992, respectively. As noted above, in the March 1992 VA medical examination report, the VA examiner indicated that the Veteran had left hip pain, with a doubtful possibility of degenerative joint disease. In the July 1992 VA medical examination report, the VA examiner again noted that an examination of the Veteran's left hip was completely normal. Having done so, the VA examiner stated that he suspected that the Veteran had a chronic type of bursitis with referred left hip pain. In the May 1992 DRO decision, the DRO noted the July 1992 VA examiner's reported suspicions regarding bursitis, but also noted that the objective physical evidence in both examination reports indicated that the Veteran's hip was normal. Therefore, the DRO denied service connection due to the lack of a current disability. The Board notes that, to the extent with which the Veteran disagrees with how the DRO weighed the evidence, mere disagreement with the weighing of medical evidence does not amount to CUE. See id. During the November 2012 Videoconference hearing, the Veteran stated that the May 1992 and July 1992 VA examiners did not perform their examinations in a manner that would have allowed them to observe and properly diagnose his left hip disorder symptomatology. For example, the Veteran testified that they did not ask him to bend over and, had they done so, they would have noted his pain and, potentially, have been able to diagnose a left hip disorder. However, taking the Veteran's contentions at face value, a breach of the duty to assist, including a failure to provide a proper VA examination, cannot constitute CUE. See 38 C.F.R. § 20.1403(d); Cook v. Principi, 318 F.3d 1334, 1345-47 (Fed. Cir. 2002). Although the Veteran refers to his current service-connected disability as a left hip disorder, the actual condition for which service connection was granted was radiculopathy of the left lower extremity, related to the Veteran's service-connected low back disability. In the March 1992 VA medical examination report, upon which the March 1992 rating decision was based in large part, the Veteran specifically denied experiencing any radiating back pain. The March 1992 VA examiner noted in his report that the Veteran did not display any abnormalities indicating radiculopathy upon deep tendon reflex and sensation testing. Although these findings were not mentioned in the March 1992 rating decision, they were of record at the time of the decision and clearly weighed against a claim for service-connection at that time. Therefore, the RO's decision to deny service connection for the Veteran's currently service-connected left hip disability, specifically radiculopathy, in March 1992 was clearly not an example of undebatable error. The Board finds that the correct facts, as they were known at that time, were before the adjudicator at the time of the March 1992 rating decision, and the statutory or regulatory provisions extant at the time were correctly applied. As the Veteran essentially disagrees with the weighing of the facts in the March 1992 rating decision and the provision of VA examinations at the time of the claim, the Veteran's claim for entitlement to an effective date earlier than May 23, 2011 for a grant of service connection for radiculopathy of the left lower extremity on the basis of clear and unmistakable error (CUE) in a March 10, 1992 rating decision must be denied. ORDER Entitlement to an effective date earlier than May 23, 2011 for a grant of service connection for radiculopathy of the left lower extremity on the basis of clear and unmistakable error (CUE) in a March 10, 1992 rating decision is denied. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs