Citation Nr: 1338391 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 10-20 706 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an effective date earlier than August 24, 2001, for a grant of service connection for a gunshot wound of the left shoulder, to include on the basis of clear and unmistakable error (CUE). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from May 1967 to June 1969. This appeal to the Board of Veterans' Appeals (Board) arose from an August 2009 rating decision by the above Department of Veterans Affairs (VA) Regional Office. As a preliminary matter, the Board notes that, in his October 2009 notice of disagreement, the Veteran appears to have raised claims for service connection for scar tissue associated with his service connected left shoulder and hip disabilities. These issues having not been adjudicated by the RO, the Board does not have jurisdiction over them, and they are referred to the RO for appropriate action. FINDINGS OF FACT 1. In his original application for service connection filed in June 1969, the Veteran limited his claim to entitlement to service connection for a gunshot wound of the left hip, and made no reference at that time to a gunshot wound to the left shoulder. 2.; The October 1969 rating decision awarding service connection for a gunshot wound of the left hip reflects no adjudication of a claim for service connection for a gunshot wound to the left shoulder that may be challenged on the basis of CUE. 2. Review of the record reveals no document dated or received earlier than August 24, 2001, that may be reasonably construed as a claim for service connection for a gunshot wound of the left shoulder. CONCLUSION OF LAW The claim for an effective date earlier than August 24, 2001, for the award of service connection for a gunshot wound of the left shoulder, to include on the basis of CUE, is without legal merit. 38 U.S.C.A. §§ 5103(a), 5103A, 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.105, 3.159, 3.400 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The Federal Circuit held that 38 U.S.C. § 5103(a) does not impose its notice obligations upon receipt of a notice of disagreement with the rating and effective date assigned by a RO for an award of benefits. As such, once the August 2009 rating decision on appeal was made awarding service connection, an effective date, and a rating for a gunshot wound of the left shoulder, 5103(a) notice had served its purpose, as the claim had already been substantiated. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Sutton v. Nicholson, 20 Vet. App. 419 (2006). With respect to the duty to assist, as the resolution of a claim for an earlier effective date is necessarily based on the facts as they existed at the time the effective date in question was assigned, no additional development of such claims pursuant to the VCAA is necessary. See Manning v. Principi, 16 Vet. App. 534 (2002), citing Livesay v. Principi, 15 Vet. App. 165 (2001). II. Legal Criteria and Analysis The assignment of effective dates of VA awards is generally governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on a claim for compensation (i.e., service connection) "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 that the effective date of service connection/compensation will be, "[d]ate of receipt of claim or date entitlement arose, whichever is later." 38 C.F.R. § 3.400. If a claim for service connection for a disability is filed within one year of separation from active service, the effective date of an award of compensation for such disability 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). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). Under 38 C.F.R. § 3.155(a), the Veteran, a representative of the Veteran, or a Member of Congress can 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)). 38 C.F.R. § 3.155(a) also provides that upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within 1 year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. Under the provisions of 38 C.F.R. § 3.105(a), previous determinations that are final and binding will be accepted as correct in the absence of CUE. In determining whether a prior determination involves CUE, the United States Court of Appeals of Veterans Claims (Court) has established a three-prong test. The three prongs are: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than simple disagreement on how the facts were weighed or evaluated), or the statutory/regulatory provisions extant at that time were not correctly applied; (2) the error must be "undebatable" and of the sort which, if it had 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 adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994), citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992)(en banc). CUE is a very specific and rare kind of "error." It is the kind of error in fact or law that, when called to the attention of later reviewers, compels the conclusion, to which reasonable minds could not differ, that the result would manifestly have been different but for the error. Generally, the correct facts, as they were known at the time, were not before the RO, or the statutory and regulatory provisions extant at the time were incorrectly applied. Even when the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be ipso facto clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993), citing Russell, 3 Vet. App. at 313-14. A determination of CUE must be based on the record and the law that existed at the time of the prior adjudication. Baldwin v. West, 13 Vet. App. 1 (1999); Caffrey v. Brown, 6 Vet. App. 377 (1994). The pertinent evidence and procedural history may briefly be summarized. In his original application for service connection filed in June 1969, the Veteran limited his claim to entitlement to service connection for a gunshot wound of the left hip, and made no reference at that time to a gunshot wound to the left shoulder. The evidence then of record included service treatment reports (STRs) documenting a gunshot wound the left hip, but no other areas of the body, sustained in February 1968. An October 1969 rating decision granted service connection for a gunshot wound of the left hip and reflects no adjudication of any other claim, to include one for service connection for a left shoulder disability. Thereafter, and following receipt of a claim for service connection for a gunshot wound of the left shoulder, the Veteran was afforded a VA examination in June 2002 , at which time he reported that he sustained a gunshot wound to the left shoulder during service. The physical examination revealed scarring and limitation of motion in the left shoulder, and the assessment included history of shrapnel injury to the left shoulder. In a May 2003 rating decision, the RO denied service connection for a gunshot wound of the left shoulder. Although notified of the denial, and of his appellate rights, the Veteran did not initiate an appeal of the decision, thus rendering it "final." See 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2002). In October 2008, additional STRs were received which document that the Veteran sustained a shell fragment wound to the left shoulder in February 1968 coincident with the gunshot wound to the left hip. Based on the receipt of this evidence, the August 2009 rating decision granted service connection for a gunshot wound of the left shoulder. Pursuant to the provisions of 38 C.F.R. § 3.156(c), as the award was based on newly received STRs, the effective date assigned for this award was the date of receipt of the original claim denied in the May 2003 rating decision, or (as determined by the RO) August 24, 2001. The Veteran contends, in essence, that because he is in no way at fault for the fact that the complete STRs were not available at the time he filed his original claim for service connection and/or he did not understand the importance of filing a specific claim for service connection for a left shoulder disability when he filed his original application for service connection, the grant of service connection for the gunshot wound to the left shoulder should be the day after separation from active duty as provided by 38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). In this regard, the Veteran asserted in his notice of disagreement that the failure to grant service connection for a left shoulder disability from the date after separation from discharge represents CUE. While the Board is sympathetic to the arguments raised by the Veteran, particularly given his documented heroic service to his country that involved great risk to his life, the Board is bound by controlling legal authority, which, on these facts, simply does not provide a basis for the earlier effective date sought. 38 U.S.C.A. § 7104(c). As clearly indicated above, for service connection for a disability to be granted, there must be some type of communication that may be construed as a claim for service connection for such disability. 38 U.S.C.A. § 5101(a); 38 C.F.R. §§ 3.151(a), 3.155(a). In this case, there simply was no claim, for service connection for a left shoulder disability, ,formal or otherwise, that was pending at the time of the October 1969 rating decision, nor was there any adjudication of a claim for service connection for the disability here at issue may be challenged on the basis of CUE. To the extent that the appellant may be asserting CUE in the RO's May 2003 denial of service connection for the disability, such argument is to no avail to appellant. Even if CUE in the rating decision was found, such would not entitle him to an effective earlier than August 24, 2001, as that was the date of the claim addressed in the May 2003 rating action. In other words, a finding of CUE in May 2003 would not change the outcome of this decision. As indicated above, the effective date of an award for service connection cannot be assigned earlier that the date of receipt of a claim for the benefit . 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. The record also other communication or record dated or received prior to the August 24, 2001, communication that represents a claim for service connection for a gunshot wound of the left shoulder. See Servello, supra [the Board must look at any communication that can be interpreted as a claim, formal or informal, for VA benefits]. There was no informal claim for the disability prior to August 24, 2001, because no communication was ever filed prior to that time indicating the Veteran's intent to apply for service connection for a gunshot wound of the left shoulder. An informal claim must identify the benefit sought. See Brannon v. West, 12 Vet. App. 32, 34-35 (1998) (noting that VA "is not required to anticipate a claim for a particular benefit where no intention to raise it was expressed," and citing Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995), for the proposition that VA is not required to do a "prognostication" or "conjure up" issues that were not raised by the appellant, but to review issues reasonably raised by the substantive appeal). These cases make it evident that medical records generally cannot be construed as constituting an informal claim for service connection. Such records may be construed as an informal claim for an increased disability rating or to reopen a compensation claim originally denied by reason of not being compensable in degree, but that is not the situation in the instant case. See 38 C.F.R. § 3.157. In short, the earliest effective date that can be granted for service connection for a gunshot wound of the left shoulder under the controlling legal criteria is the date of receipt of the claim for service connection for this disability on August 24, 2001. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. The Board reiterates that the legal authority governing effective dates is clear and specific, and the Board is bound by such authority. As, on these facts, there is no legal for an award of service connection prior to the initial claim for that benefit, the claim for an earlier effective date must be denied as without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER An effective date earlier than August 24, 2001, for the award of service connection for a gunshot wound of the left shoulder, to include on the basis of CUE, is denied. ____________________________________________ JACQUELINE E MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs